Man who puts a price on pain

May 14th, 2013

Peter Nolan

Elise Amendola / AP

Kenneth Feinberg, an attorney who managed the 9/11 Victim Compensation Fund, speaks at a news conference in Boston on April 23 as Mass. Gov. Deval Patrick listens at right.

He’s called “the umpire.”

Blunt yet sympathetic. Good with a calculator under pressure. Loves doing pro-bono work as a hobby. Because of all of those attributes, arbitration attorney Kenneth Feinberg is asked again and again to take on the awful task of putting price tags on pain, suffering and even human life.

Feinberg, 67, has managed compensation for families damaged by the Sept. 11 terrorist attacks, the Aurora movie theater massacre and the Virginia Tech shooting. He’s worked with asbestos sufferers and waded through BP’s oily mess.

Now, he will divvy up monies collected by the One Fund for Boston Marathon victims and their families.

“You know the book ‘In Search of Excellence?'” asked Bobby Epstein, who attended the University of Massachusetts with Feinberg 50 years ago and was also a teenage summer camp counselor with him. “When you meet Kenny Feinberg, your search for excellence is over.

“The only thing we talk about is a hair piece, that’s all,” Epstein, the president of a Norton, Mass.,-based beverage company, joked.

Epstein says Feinberg’s unique career — which requires a delicate mix of empathy and calculation — is hard to grasp.

“It’s impossible,” said Epstein, 68, who lives in Boston. “I was in his office in Washington one day when the Virginia Tech people, the parents, came in. My God, I was crying, and I didn’t even know who they were. … How he sleeps at night, how he can live with it — he’s an amazing individual. The country is lucky to have him.”

Feinberg to Boston victims: ‘Lower your expectations’
Feinberg doesn’t sleep much at night: Four or five hours at most, Epstein says. It may be even less now, as he commutes from his Bethesda, Md., home up to Boston to manage the One Fund.

“Whatever we do with this fund is inadequate,” Feinberg said at a town hall-style meeting he set up for marathon victims and their families in Boston last Monday. “Everyone, please lower your expectations about this fund. If you had a billion dollars, you would not have enough money to deal with the problems with these attacks.”

The One Fund, set up by Massachusetts Gov. Deval Patrick and Boston Mayor Thomas Menino after the bombings on April 15, has collected $29 million in donations so far. More than 200 people were injured in the marathon bombings; three people lost their lives there, and an MIT officer was killed by the suspects days later.

Feinberg must calculate how much each person is entitled to, factoring in horrific realities such as the number of limbs a victim lost.

He’s doing it for free, and has told victims he plans to distribute all the money by June 30.

Placing a dollar amount on a life or an injury may sound heartless, but Feinberg, who is rehearsed in hearing victims’ stories, brings sensitivity to his work, say those who have worked with him.

“He’s the umpire, the mediator, the resolver,” said John C. Coffee Jr., a law professor at Columbia University in New York who has known Feinberg for about 20 years. “He can listen, and he’s a people person.”

Feinberg’s first break in large settlement cases was in 1984, when he was appointed to distribute money from a $180 million settlement for Vietnam veterans who were suing the makers of Agent Orange. In his late thirties at the time, Feinberg was chosen by Judge Jack Weinstein because of his knowledge of toxic tort litigation and because he was highly regarded by big-name politicians, including Massachusetts Sen. Edward Kennedy, who he worked for in the 1970s, first as an assistant, then as chief of staff.

“Kennedy was like a second father to him,” Epstein said. “Kenny was a pallbearer [at his funeral].”

Heightened security, empty streets, and memorials mark the the days after the Boston Marathon bombings.

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Since then, calls for jobs of this sort have come in regularly, including from George W. Bush’s administration, which asked him to manage the 9/11 victims’ compensation fund — a $7 billion fund hastily created by Congress in the days after Sept. 11, 2001, paid for by taxpayers, that made Feinberg the sole decision-maker of how much each claimant received. Victims and families who accepted money could not sue the airlines whose planes were used in the attack, and not all victims’ families were willing to play ball.

“’We have to discover what really happened that day. We will get in a lawsuit what the CIA knew, what the FBI knew, what the administration knew,'” the families said to him, Feinberg told “60 Minutes” in a November 2003 interview. “I say to them, ‘You’re not going to get any of that in a lawsuit.’”

Around 98 percent of the 5,562 family members of the more than 2,700 who lost their lives worked with the fund and avoided litigation, Epstein said.

Boston is a totally different case. Money isn’t being handed out to prevent lawsuits.

“One benefit here in Boston, in Aurora, or Virginia Tech, you’re not waiving rights. This is a gift, in effect. This is money that’s been donated in private,” Feinberg told MSNBC’s Andrea Mitchell on May 2.

The cash that victims get in Boston can go straight to medical bills, which is part of why Feinberg spends so much time mapping out how much money each victim in a tragedy should receive, as opposed to just dividing the amount equally by the number of claimants.

“Last Saturday night, we were together, and he said, ‘People have burns, and that will go away. Some people lost limbs and their lives will never be the same.’ It’s half a million bucks to go through the life cycle of a prosthetic device. You gotta change the house around,” Epstein said, adding that Feinberg takes the extent of the injuries and the person’s earning capabilities into consideration, among other factors.

Despite all of Feinberg’s best efforts to make fair estimates for how much each victim or victim’s family is owed, there is always backlash. Some people tell him he hasn’t delivered enough money to them; others tell him it’s unfair their tragedy hasn’t been recognized with a fund.

“Dear Mr. Feinberg, my son died in Oklahoma City, where’s my check? Dear Mr. Feinberg, my daughter died in the African embassy bombings from the terrorists, where’s my check? Dear Mr. Feinberg, my son died in the first World Trade Center bombing in ’93 committed by the very same people — why aren’t I eligible?” he told “60 Minutes” in 2003, quoting letters he has received from grieving families.

Back to his Boston roots
Through his latest assignment, Feinberg is returning to his roots. A Brockton, Mass., native who speaks with a Boston accent, he got his undergrad degree from UMass in 1967. Three years later, he got his law degree from New York University, despite being involved in theater at UMass and briefly considering a career in acting.

Feinberg is a managing partner at his own firm, which has Washington and New York offices, but he has been involved in the biggest class action and mass tort lawsuits — broader civil suits involving many victims — over the past four decades, to the point where his name is synonymous with large settlements, Coffee, the Columbia professor, says.

His claims have ranged from a defective contraceptive device to the government’s TARP allocations during the economic downturn.

“He is not necessarily the greatest legal scholar who can give you the perfect multifaceted model for dealing with the problem, but he’s got the instinct to get people to agree, to recognize that their self-interest is in something that is reasonable, rather than litigating for eternity,” Coffee said.

The married father of three and grandfather plans on retiring in Martha’s Vineyard — if he ever retires.

A spokesperson for Feinberg said he was too busy commuting from his Maryland home to Boston to be interviewed for this story. He’s also too busy for hobbies, his friend, Epstein, says.

“This is his hobby. He’s not a golfer, a fisherman, a tennis player,” Epstein said.

Dominick Reuter / Reuters

Cheers filled the streets after a Boston Marathon bombing suspect was captured alive but wounded Friday night — following a day-long manhunt that shut down the city.

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