Massport dismissed from 9/11 suit

United, security operator still face trial

By Stephanie Ebbert
Globe Staff / July 28, 2011

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NEW YORK - A federal judge dismissed the Massachusetts Port Authority yesterday from the last remaining lawsuit brought by family members who lost loved ones in the Sept. 11 terrorist attacks.

The ruling releases Massport, the agency that runs Logan International Airport, from liability in the death of a Boston man killed in the crash of United Airlines Flight 175. The lawsuit will proceed against United and its security contractor.

US District Judge Alvin K. Hellerstein of the Southern District of New York accepted Massport’s argument that security screening that might have prevented the terrorists from bringing weapons on board was the responsibility of the airlines, not the airport.

His ruling marked the first time that a judge has ruled that Logan should not be considered liable for security lapses. It relieved other airport operators who supported Massport’s contention that a ruling in favor of the plaintiffs would upend the rules of aviation security policy.

David S. Mackey, Massport’s interim chief executive and longtime legal counsel, who was in court to hear the oral arguments, expressed relief at the ruling. He also had words of sympathy for the family of victim Mark Bavis who brought the suit.

“The entire Logan Airport community will forever carry in its heart the events of 9/11,’’ Mackey said in a statement he read inside the courtroom. “Our thoughts and prayers will always be with the victims of that tragic day and their families.’’

The ruling was a blow to the family of Bavis, 31, a hockey scout who died on Sept. 11 and whose family had refused to negotiate toward a settlement, hoping to hold Massport and others accountable for the tragedy.

“We felt strongly that common sense and reason should prevail that they were a party that could have prevented this,’’ the victim’s twin brother, Michael Bavis, said after the hearing. “The judge has made his decision, which we will respect.’’

The judge, who has overseen cases brought by other families of Sept. 11 victims, also castigated the Bavis’s lawyer for making assertions that he said were not supported in the record.

The lawyer, Mary Schiavo, had suggested in court that the Federal Aviation Administration had warned Massport about screening failures and that United Airline’s contracted security company, Huntleigh USA, had a bad record.

When pressed to cite her evidence, Schiavo pointed to numerous documents that the judge said were not relevant. That prompted a stern and prolonged scolding from Hellerstein, who asked her how long she had been an attorney and told her she should know better.

“Don’t ever do that again, Ms. Schiavo,’’ he said. “Don’t ever do that again. Because I will sit you down so fast you won’t even catch your breath.’’

Hellerstein sided with the Bavis family in its argument that the family should be compensated not only for Mark Bavis’s death, but for the terror that preceded it. The judge said that he will probably allow the jury to consider damages for pain and suffering that Bavis undoubtedly endured in the time between the hijacking and the crash into the World Trade Center.

The case marks the last of several lawsuits in which Massport was named as a defendant filed by families of Sept. 11 victims but the first 9/11 wrongful-death suit that would make it to trial. Most families have settled their claims or accepted compensation through a victims’ compensation fund.

Massport has been dismissed from prior cases and has never been brought to trial or paid damages. The Bavis family, which filed suit in 2002, has persevered since, refusing to settle in the hopes that a full public airing of issues would compel further changes in aviation security.

“Our family’s never been able to walk away and put this behind us without an airing,’’ said Michael Bavis, who spoke after the hearing he attended with his older brother Patrick. “It was harder than we expected to hear some of the details of it,’’ he added. “This was a good reminder for us. This case is giving my brother and probably giving thousands of victims and thousands of families a voice.’’

The case is expected to go to trial Nov. 7. Hellerstein, who has said he will restrict the trial to one month, made clear to the attorneys presenting legal theories yesterday that he will not allow the testimony to meander.

Another attorney for the Bavis family, Donald A. Migliori, began his arguments on the negligence standard with a reiteration of the events of Sept. 11. Migliori said the court had to presume that the hijackers brought illegal Mace and knives through security before they boarded the plane that day. However, the judge made clear he would make no such presumptions. He challenged Migliori on the facts of the hijacking and said no one has proof of the number and size of the weapons brought on board or how they got on the plane.

Likewise, the judge batted back claims by United Airlines lawyer Jeffrey Ellis that security screeners may have done their jobs appropriately but allowed knives aboard because they were under four inches and legally permissible.

After ruling in Massport’s favor yesterday, Hellerstein said he would turn to other arguments in the case and present a final ruling.

Stephanie Ebbert can be reached at