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Judge finds 911 evidence inadmissable in lawsuit { October 18 2007 }

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October 18, 2007
Evidence in 9/11 Damages Cases Is Restricted

The federal judge hearing damages cases filed by families of Sept. 11 victims has tightly restricted evidence that one family may present at the first trial.

The judge, Alvin K. Hellerstein of Federal District Court in Manhattan, ruled Tuesday that he would exclude some of the plaintiffs’ more sensational and speculative evidence in the trial, which is to begin next month.

The victim, Paul Wesley Ambrose, a doctor, was 32 when he died aboard American Airlines Flight 77, which flew into the Pentagon, killing 58 passengers, 6 crew members and 125 in the building. His parents, Sharon and Kenneth Ambrose, have sued the airline, airport security companies and others, arguing that the attacks could have been foreseen and their son’s death averted.

The ruling was a blow for plaintiffs in this and possibly other wrongful death cases stemming from the attacks, and could accelerate the pace of settlements. More than 90 families, including the Ambroses, chose not to accept payments averaging $2 million from a federal Victim Compensation Fund, and decided to go to court instead. All the remaining cases have been consolidated under the same judge.

There has been a steady stream of settlements in recent months as the first trial approaches, and Joseph Wayland, a lawyer for the airlines, said yesterday that only 12 wrongful death cases and 4 active personal injury cases remained.

In the Ambrose case, Judge Hellerstein ruled that the jury would not be allowed to see photographs of at least one of the hijackers and Dr. Ambrose separately passing through a security checkpoint at Dulles International Airport, where the flight originated.

Judge Hellerstein also said he found a wide array of other evidence inadmissible, including the testimony of people who received phone calls from loved ones aboard Flight 77 before it crashed; the testimony of a burn victim inside the Pentagon; testimony from a victim’s daughter about a note from the victim to her husband that was found at the crash site; and photographs of body parts.

But he said Dr. Ambrose’s parents could testify about that evidence if it has contributed to their emotional state, and could tell the jury that Dr. Ambrose was one of two adopted sons, that the older son had also died and that his death had left them childless.

The judge also expressed some skepticism that Dr. Ambrose would have contributed substantially to the financial well-being of his parents, who, he said, did not seem to need his help. Dr. Ambrose was an adviser to the office of the surgeon general. His future was promising, as he had graduated from medical school and received a master’s degree in public health from Harvard University and was engaged to be married, the judge noted.

He said the plaintiffs proposed to present testimony from C. Everett Koop, a former United States surgeon general, “to the effect that” Dr. Ambrose would have gone on to be surgeon general, a cabinet member, a senior delegate to the World Health Organization and “dean of a major school of public health.”

Judge Hellerstein said that Dr. Koop’s testimony would be speculative and that before Dr. Ambrose died, he had been living “paycheck to paycheck.”

He said he would reconsider his ruling on the evidence as a whole if the dynamics of the trial persuaded him otherwise.

Donald Migliori, a lawyer for the plaintiffs, said he was not discouraged by the ruling because Judge Hellerstein had ruled “in the abstract” and could still decide to admit some of the evidence if it proved to be relevant.

Mr. Wayland said the judge had tried to exclude evidence that might raise questions of liability for the attacks. The judge has ordered damages trials first and liability trials next, a reversal of the customary order.

“It’s a very, very limited inquiry, and the judge is trying to make sure that liability issues and other matters that might distract the jury from the limited issue before them are kept out,” Mr. Wayland said.

Copyright 2007 The New York Times Company

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