Frank Macri, a life-long non-smoker, became a New York police officer on February 1, 1995. On September 11, 2001, Macri responded to the World Trade Center attacks. Macri was knocked to the ground in an explosion causing lacerations to his left arm and right leg, received smoke inhalation, and suffered lacerations of the left and right cornea. Macri provided rescue, recovery and cleanup work at the World Trade Center site from September 11, 2001 until October 1, 2001. He continued to provide rescue, recovery and cleanup work at the World Trade Center and Fresh Kills Landfill sites from November 1, 2001 until January 2002.
In August, 2002, Macri was diagnosed with an aggressive form of lung cancer. Macri started to receive chemotherapy and treatment for his cancer, but an MRI concluded that the cancer had spread to Macri’s brain. Despite having brain surgery, on January 31, 2005, Macri’s lung cancer had metastasized to his brain, liver, lung and bones. Macri passed away on September 3, 2007 as a result of the cancer.
Macri’s surgeon wrote that “the exposure at the World Trade Center is a significant and contributing factor to Macri’s lung cancer, and it is more reasonable than not that this is the cause of his lung cancer.” Macri’s treating oncologist observed that “the relationship between exposure to airborne materials at ground zero and multiple, serious chronic illnesses has been well documented; this is especially the case regarding first responders. The levels of known carcinogens were extremely high in the air at ground zero in the days immediately following.” Macri’s radiation oncologist was of a similar view, reporting that Macri’s “case from a radiation oncology perspective was unique and it is certainly reasonable to ascribe some causality to his 9/11 exposure.”
Nonetheless, New York City denied Macri’s widow’s claim for a “line of duty combat death benefit.” Macri’s widow appealed to the New York Supreme Court.
The Court reversed the City’s determination, and ordered the payment of death benefits. Under New York law, there is a presumption that a variety of conditions, including lung cancer, suffered by World Trade Center first responders are caused by the job. The Court found that the City had not met its burden “to prove by competent evidence that Macri did not develop cancer and subsequently die as a result of the work that he performed at the World Trade Center. First and foremost, the City cites to unidentified ‘doubling time’ literature which, it admits, is based on a non-first-responder population. It attempts, without any credible medical evidence, to compare these unidentified studies to Macri’s situation, despite his different set of facts and letters written on his behalf from his treating doctors, who are current experts in the field. Mere conjecture or unsupported suspicion” does not demonstrate credible evidence.
“It is not Macri’s widow’s burden to prove causation, since it is undisputed that Macri is eligible to be considered for benefits under the WTC Bill. Even so, she has submitted letters from Macri’s doctors which provide credible medical evidence that Macri’s cancer was more than likely the result of his exposure to toxins at the World Trade Center site.”
Macri v. Kelly, 2010 WL 2012419 (N.Y. Sup. 2010).
This article appears in the August 2010 issue