This story, in slightly different form, originally appeared in the New York Law Journal.

NEW YORK CITY-Southern District Judge Alvin K. Hellerstein on Wednesday approved the settlement in the 9/11 respiratory illness litigation at the end of a nearly seven-hour long hearing. The judge and lawyers for the parties in the litigation pushed hard to persuade World Trade Center rescue and cleanup workers exposed to allegedly toxic dust at the site to accept a settlement that could run as high as $716 million.

Although billed as a “fairness hearing,” the session was clearly an effort to convince at least 95% of 10,000 claimants to opt into the settlement. The deal requires 95% acceptance in order to go into effect.

Kenneth R. Feinberg, who was appointed by Judge Hellerstein to hear appeals from compensation decisions, spoke by conference call from Washington, D.C., and addressed the principal uncertainty confronting plaintiffs—legislation being negotiated on Capitol Hill to provide more money to 9/11 first responders and cleanup workers. “If you opt out in the hope that there will be a better legislative alternative down the road, I believe you will be making a mistake,” said Feinberg. “The legislative process grinds slowly and after waiting over five years for the legislation to be enacted, it is still not enacted.”

Judge Hellerstein had rejected an initial settlement on March 19 as providing inadequate compensation to those injured at Ground Zero. Yesterday, he defended the latest deal during the seven-hour session that included emotional testimony from some plaintiffs as well as presentations by lawyers.

Retired NYPD Detective Candace Baker, who claims the 400 hours of overtime she put at Ground Zero caused her breast cancer, and retired firefighter Kenneth Specht, who claims his cancer was caused by exposure to toxic dust, both criticized the settlement for not providing enough money for solid tumor cancers.

The judge told Baker he understood her frustration. But, he said, “This is a settlement system and not a compensation system, so I have to pay attention, and the lawyers have to pay attention, to what is provable.”

Later, he added, “I hope that when Ms. Baker and Mr. Specht go home and think about this, they vote to approve the settlement and opt in—not because it’s perfect, it’s far from perfect. It’s good. It’s the best we could do.”

In the morning, Judge Hellerstein praised Margaret Warner of McDermott Will & Emery, the lawyer for the entity that holds the purse strings, the World Trade Center Captive Insurance Co. The judge said Warner’s “indefatigable energy and intelligence really drove the settlement.”

Plaintiffs’ co-liaison counsel Paul Napoli, of Worby Groner Edelman & Napoli, Bern, and James Tyrrell of Patton Boggs, lead lawyer for the city and its contractors, both worked hard to close the deal. Under the agreement, plaintiffs could receive anywhere from a few thousand dollars to almost $2 million, depending on the severity of their injury and the degree of exposure at Ground Zero.

Napoli said that the amount was “fair, reasonable and more than adequate.” He added that the legislation in Congress was “the elephant in the room,” but he cautioned plaintiffs that “very few bills,” between 2% and 3%, that are proposed in Congress actually become law.

The settlement calls for the slotting of plaintiffs along four tiers based on the severity of their injuries, with tier four including the most serious health problems, such as lung cancer. Warner explained that 50 percent of the 10,000 plaintiffs are expected to qualify for tier four and will received 94% of the cash in the settlement that will range between $625 million and $716 million, depending on the number of people who opt in and future claims made over the next five years.

The deal still leaves several defendants in the case, including the Port Authority of New York and New Jersey; insurers of workers who toiled at the Fresh Kills landfill on Staten Island, where the debris was shipped; and insurers for the barges that transported the debris from lower Manhattan. Judge Hellerstein expressed hope that the current settlement would lead to the resolution of the claims against those defendants.

Mark Hamblett can be reached at [email protected].