More than six years after Gulf Coast victims of Hurricane Katrina began experiencing adverse health effects while living in travel trailers provided by the federal government for temporary housing, a federal judge in New Orleans has given his final approval to a $42.6 million settlement of a class-action lawsuit alleging that the units emitted hazardous levels of the toxic chemical formaldehyde.

U.S. District Judge Kurt Engelhardt approved the deal Thursday after hearing from attorneys who brokered the agreement between the plaintiffs and more than two dozen manufacturers of mobile homes provided by the Federal Emergency Management Agency in the wake of Hurricanes Katrina and Rita.

Roughly 55,000 residents of Louisiana, Mississippi, Alabama and Texas will be eligible for shares of $37.5 million paid by more than two dozen manufacturers, the Associated Press reported. They also can get shares of a separate $5.1 million settlement with FEMA contractors that installed and maintained the units.

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Dan Balhoff, a court-appointed special master, will determine the plaintiffs' awards, the AP said. Up to 48 percent of the total settlement money – or approximately $20,5 million -- will be deducted for attorneys' fees and costs, it said. Assuming the remainder is divided equally among 55,000 plaintiffs, the plaintiffs would receive about $4,020 apiece.

Payments are expected to go out late this year or early next year, the AP said.

Engelhardt presided over three trials for claims against FEMA trailer manufacturers and installers after he was picked in 2007 to oversee hundreds of consolidated lawsuits. The juries in all three trials sided with the companies and didn't award any damages.

As msnbc.com (now NBCNews.com) first reported in July 2006, residents of the trailers began complaining of headaches, nosebleeds and breathing difficulty shortly after moving into the trailers, which were trucked to the Gulf Coast by the tens of thousands after Katrina and Rita devastated the area in rapid succession in 2005.

Air quality tests of 44 FEMA trailers in early 2006 conducted by the Sierra Club found formaldehyde concentrations as high as 0.34 parts per million – a level nearly equal to what a professional embalmer would be exposed to on the job, according to one study of the chemical’s workplace effects.

And government tests on hundreds of trailers in Louisiana and Mississippi announced in 2008 found formaldehyde levels that were, on average, about five times what people are exposed to in most modern homes. 

FEMA, which isn't a party to the settlements, had long downplayed the health risks from formaldehyde exposure before those test results were announced.

It eventually began auctioning off the units as “scrap” — meaning they should not be used for human habitation — in October 2008, but some unscrupulous buyers apparently were able to dodge regulations and return them to the housing pool. 

Formaldehyde gas -- the airborne form of a chemical used in a wide variety of products, including composite wood and plywood panels in the travel trailers that FEMA purchased to house hurricane victims -- is considered a human carcinogen, or cancer-causing substance, by the International Agency for Research on Cancer and a probable human carcinogen by the EPA.

Gerald Meunier, a lead plaintiffs' attorney, told the AP that the deal provides residents with "somewhat modest" compensation but allows both sides to avoid the expense and risks of protracted litigation.

"Dollar amounts alone do not determine whether a settlement is fair and reasonable," he said.

Jim Percy, a lawyer for the trailer makers, said Engelhardt would have had to try cases individually or transfer suits to other jurisdictions if the settlement wasn't reached.

"It was not going to end quickly, and it was going to be even more monumental for all the parties concerned," he said.

But that doesn't mean the deal isn't a disappointment for many residents who blame their illnesses on the cramped trailers they occupied for months on end.

"We were told not to look for much," said Anthony Dixon, a New Orleans resident who says he developed asthma while living in a FEMA trailer for two years.

Dixon, 58, attended the hearing with his wife and mother to learn more about the deal.

"We're glad to get it over with," he added.

Engelhardt noted he received a letter from a woman whose 66-year-old mother, Agnes Mauldin, of Mississippi, died of leukemia in 2008 after living in a FEMA trailer. Mauldin's daughter, Lydia Greenlees, said the settlement offers "very little" for what her family considers to be a wrongful death case.

"I am saddened about the settlement in that I feel like it makes a mockery of my mother's life," Greenlees wrote. "I don't want anyone to think for one second that I view this settlement as a fair trade for my mother's life. I do not."

A group of companies that includes Gulf Stream Coach Inc., Forest River Inc., Vanguard LLC and Monaco Coach Corp. will pay $20 million of the $37.5 million settlement with the trailer makers.

Shaw Environmental Inc., Bechtel Corp., Fluor Enterprises Inc. and CH2M Hill Constructors Inc. are among the FEMA contractors that agreed to pay shares of the separate $5.1 million settlement.

Only a handful of formaldehyde-related claims are still pending, including some against FEMA by a group of Texas residents.

Mike Brunker is the projects editor for NBCNews.com; the Associated Press contributed to this article.

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Yankee fans root for a first-place team and usually watch their heroes win when they visit the new Yankee Stadium in New York. But fans of the Bronx Bombers have recently lost something too, something many sports fans around the country will probably lose soon: the right to sue the team for damages if there's a terrorist attack. Meanwhile, another team can claim victory every time the Yankees take the field -- tort reform advocates.

In July, Yankee Stadium became the first sports facility to earn the coveted federal "Safety Act" designation. That means the facility has passed a battery of tests and won approval from the Department of Homeland Security, so the Yankees have been granted a wide-ranging immunity from future lawsuits that might stem from terrorist attacks.

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Dozens of defense companies have been named to the Safety Act approved list since DHS started handing out the designation in 2004. But Yankees Stadium is the first of what is expected to be many sports venues whose operators will then be immune from standard lawsuits that might be filed by future victims of terrorist attacks. (The National Football League was placed on the Safety Act list in 2008, but the designation was vague and probably only applies to the Super Bowl, experts say.)

 

Supporters say the Safety Act gives strong incentives for firms to raise their security standards, and encourages innovation. Opponents say it unfairly terminates a basic consumer right, makes people less safe and serves as an under-the-radar version of tort reform. As evidence, opponents point out that the Safety Act framework is being copied for many other legislative initiatives, including the failed effort to pass a comprehensive Cybersecurity Bill this year.

It's the mother of all liability waivers, says George Washington University law Professor Ellen Zavian, an expert in sports law. But the question is, do fans know about it?

"There's waivers on ticket stubs … but I haven't seen any waivers that state, 'Oh by the way  … we can waive (liability) for terrorism attacks.'" Zavian said. "How did this get under the radar? Are people really supportive of that? I think attendees should know what they are waiving when they enter a facility, and I don't think they do."

The Safety Act (SAFETY is actually an acronym for "Support Anti-Terrorism by Fostering Effective Technologies") was passed as part of the legislation that created the Department of Homeland Security in 2002. And that's part of the problem, argues John Bowman, director of federal relations for the American Association for Justice.

"Clearly this was done in haste after 9/11," he said. "It was a fear-driven time. There was dramatic tort reform. It's fair to say these tort reformers took advantage of that moment. ...We disagree with the way the law is structured. We think it's not very helpful for fans if something happened."

The law would clearly be helpful to the Yankees if something happened. A report by the European Organisation for Security, which is helping the European Union consider similar terrorism-related tort reform, says that $40 billion in private claims was paid out by insurers in the wake of 9/11, with billions more in claims still unsettled. The Safety Act would prevent many such lawsuits after a future 9/11-style attack.

'A marketing edge'
But the law does much more than offer the civil equivalent of a get-out-of-jail-free card, supporters argue. Bob Karl, who operates SafetyActConsultants.com and has helped dozens of companies achieve certification, says liability protection is absolutely essential for companies deploying newfangled anti-terrorism technologies. Companies are concerned that with each new gadget they deploy, they incur new liability, he said.

Karl gave the example of a company that had invented a new radioactivity detector for cargo containers on ships. Selling the detectors would be, initially, a tiny $10 million annual business for the multibillion-dollar company, but the firm feared that if something went wrong with its product, victims could sue for the entirety of the firm's value. It makes no sense for companies to take on risk like that, and the firm didn't start selling its detectors until it achieved Safety Act designation, he said. He declined to name the firm.

"It's very real concern, and Congress had that concern when it passed the law," he said.

With Safety Act protection, companies can afford to deploy unproven or newer technologies, knowing their risks are lower, he said. That makes everyone safer.

Also, he insisted, the Office of Safety Act Implementation, which grants the certification, has very high standards, and firms become safer merely by taking on the process.

"The fear is there would be some kind of double-secret handshake and they would just hand these things out. … Well, that's not how it happens," he said. Many applications take years before they achieve final approvals. "I had one application recently that was 5,000 pages long," Karl said.

Meanwhile, Safety Act designation can give smaller companies, "a marketing edge," he said. "It's kind of like a Good Housekeeping seal of approval."

But even Karl agrees that the Safety Act was "tort reform at a very high level." Safety Act designation makes it impossible to sue a company after a terrorist attack for standard negligence – a ticket-holder bringing in an explosive device in a purse that wasn’t detected during standard bag inspection by entrance guards, for instance. But it also grants a host of other legal rights. Victims who wish to pursue legal action after a terrorist attack can only do so in federal court; joint and several liability (in which any involved party can be liable for an entire disaster) is eliminated, which reduces firms' exposure; and there is a ban on punitive damages on interest accumulation related to any potential judgment. Victims cannot sue for negligence; the only way to pierce Safety Act immunity is to prove fraud during the application process, or actual malice by the company.

Another concern expressed by opponents is that the definition of a terrorist attack is left vague by the law – essentially, a terrorist attack is anything the Department of Homeland Security calls a terrorist attack, which could include domestic terrorism, such as the Oklahoma City bombing in 1995 or even the recent Aurora, Colo., mass shooting.

One likely outcome of Safety Act protections could be lower insurance premiums for companies involved, thanks to caps on costs that could arise from a terrorist attack.

Bradley Shear, a civil litigation attorney and opponent of the Safety Act, said he didn't understand what was in it for fans.

"I think this is well intentioned, but can it equally protect businesses and the average consumer?" he said. "In return for the liability shield, what is the public getting? Are Yankees tickets going to be cheaper because they've been able to obtain Safety Act (designation)? Will the cost of a hot dog or a beer be any less?"

Or, as another opponent of the legislation said, has it just created a new consulting industry that earns millions helping companies navigate the Safety Act application process? A quick search of Google shows there is indeed a thriving industry in Safety Act consulting.

David McWhorter, a consultant at Catalyst Partners in Washington D.C., which helped the Yankees with its Safety Act application, said critics have a misunderstanding of the approval process. Most companies are forced to raise their insurance coverage by the Office of Safety Act implementation, he said, adding that he couldn’t think of a single case where firms were allowed to reduce their coverage. And insurance firms aren't yet offering security firms the equivalent of a "good driver discount," either.

In other words, they're not getting Safety Act coverage to save money today, he says. They do it because they become safer through the process, and because they want cost certainty.

"It's important for a facility to get a pre-emptive cap on liability," he said. "For any venue that has met the Safety Act standards, patrons can feel assured they are among the best of the best when comes to security. It’s a win-win for the public and for that venue."

McWhorter said when companies approach him for help with their application, he generally spends a lot of time consulting on how to improve the firm's security guard hiring and training processes. He also helps companies set up "red team" exercises -- mock attacks  -- to prepare them for the rigorous Homeland Security evaluation. 

"It's not inexpensive to provide security to a venue that holds 10,000 to 60,000 people," he said. "You have to consider hiring, training, exercises, cameras, alarms, mass notification systems, definition of the command structure, metal detectors, the auditing process, and so on." 

Sticking out like a sore thumb
Browsing the list of Safety Act designated technologies on the Department of Homeland Security's website, visitors see a list of both familiar and unfamiliar names: ADT Security, Unisys and Securitas are listed alongside Massachusetts-based Ahura Scientific, for example. Many of the approved technologies are what you might expect: In March, American Science & Engineering got approval for X-Ray inspection systems; the aforementioned Ahura – which recently changed its name to Thermo Scientific -- lists handheld devices that identify chemicals using "Raman spectroscopy."

On such a list, the Yankees stick out a bit like a sore thumb.

"New York Yankees d/b/a The New York Yankees Baseball Club provides The New York Yankees Security Program," the Safety Act office announcement says. "The Technology is a comprehensive integrated security system, which is comprised of physical and electronic security measures, tools and procedures designed to detect, deter, prevent, respond to and mitigate Acts of Terrorism at Yankee Stadium during Game Day, Non-Game Day (In-Season), Non-Season and Special Events."

One of these things is not like the other, complains Bowman.

“When you look at the law -- it's for makers and suppliers of technology," he said. "That was their intent, not to protect ballparks and give them a get-out-of-jail-free card, as long as they didn't lie ... during the approval process.”

The Yankees did not respond to a request for comment.

McWhorter says that sports venues are good candidates for Safety Act protection because they host major events that attract attention, and need incentives to go "above and beyond" standard levels of security.

"Yankee Stadium is not unlike the Cincinnati airport, the Stock Exchange, the NFL, or Super Bowl venues, all of which have received Safety Act protection," he said. "The regulations for the Safety Act are very clear that the (Department of Homeland Security) secretary has great flexibility in approving applications. Nevertheless, one criterion is, to paraphrase, 'To get Safety Act protection, you must demonstrate the need for Safety Act protection.'… The Safety Act incentivizes activities like vulnerability assessments and security upgrades, whereas without it some people might simply ignore threats in order to avoid any culpability."

Bowman said he didn't have a fundamental disagreement with the notion of encouraging invention of terrorism-fighting technologies, but feared that the Yankees designation proves the Safety Act is now casting a far wider net than originally intended. That's not a mistake, he thinks: Tort reformers try to gain more ground each time Congress takes up an industry issues or security issues, he said.

"We see this over and over in what we do. The first thing industry asks for are liability protections," he said, citing this year's cybersecurity bill as an example. "But if they are not accountable, they aren't responsible and no one is ultimately safe."

Karl, the Safety Act consultant, said he believes the Safety Act does make America safer, as all manner of security improvements are a standard part of the application process. He expects many more sports teams to apply -- and to receive -- Safety Act designation in the coming months and years, and he plans to pitch sports teams and facilities with his consulting services.

"The law is definitely working the way it's intended to," he said. "The Safety Act protects technologies that deter or respond to or mitigate a terrorist attack. … That makes us all safer."

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Could you be blamed for a car crash because you sent a text message? 

A New Jersey judge will decide later this week if the sender of a text message might be partially liable for a horrific auto accident that occurred because the driver was reading that message on his cell phone and drifted into oncoming traffic.

With nearly half a million U.S. drivers injured in distracted driving-related accidents every year, according to the National Highway Traffic Safety Administration, the judge’s decision could have wide-ranging impact in both the legal and digital realms.

While it might seem absurd to blame someone who isn't even in the car -- or anywhere near it -- for causing an accident, some legal experts say the plaintiff is on firmer ground than you might think.

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Skippy Weinstein, a Morristown-based lawyer, is using similar logic to press the case he filed on behalf of David and Linda Kuber. Both Kubers lost their legs during a 2009 crash in Mine Hill, N.J., after 19-year-old Kyle Best sideswiped their car when driving while texting. Weinstein said Shannon Colonna, who was texting with Best, should also be held responsible for the Kubers’ injuries.

"She was not physically in the vehicle but she was electronically present," Weinstein told msnbc.com. "She and he were assisting each other in a violation of the law."

That word "assisting" is at the crux of Weinstein's novel legal argument. 

Most readers will be familiar with the notion of "aiding and abetting" a criminal act and the guilt it brings: the man who knowingly holds the door for the gang is just likely to be convicted of bank robbery as the safe cracker.

More recently, this notion of aiding and abetting has been extended to civil liability cases, too, creating a basis for what's sometimes called "secondary" or "vicarious" liability. For the past two decades, most civil aiding and abetting cases have been limited to investment and securities fraud: An aggrieved investor might not only sue Bernie Madoff for stealing his money, for example, but also go after a third-party broker who repeatedly executed trades for Madoff. Even if the trader wasn't profiting from the scheme or part of a "joint enterprise,“ a court might find the trader provided assistance to Madoff, and should have known that someone was likely be injured by his actions.

The aiding and abetting argument in injuries that give rise to lawsuits, known as "torts," is only beginning to find its way into other kinds of civil cases.

There's a simple three-pronged test to prove someone is partly to blame for causing an injury by aiding and abetting someone else. It is set out in the Restatement of Torts published by the American Law Institute, which guides most civil courtrooms:

1) The party the defendant assists must do a wrongful act;

2) The party must be generally aware of his or her role in the illegal or "tortuous" act;

3) The party must "substantially assist" in the principal violation.

Weinstein think his argument is easy to make. The driver violated the law by texting while driving. Colonna, the text sender, should have known that Best was driving home from work and had to know texting while driving was a violation, he said. Therefore, it's hard to argue that a text sender isn't substantially assisting in the creation of a text message conversation that violates New Jersey's driving laws.

"That very comfortably satisfies the third prong of the legal test," he said.

Colonna’s lawyer, Joseph McGlone, doesn't think the argument has any merit, and has asked Morris County Superior Court Judge David Rand to dismiss the case. Rand is scheduled to rule this week on McGlone’s motion to dismiss the case.

The sender of a text message has no way to control or predict when the recipient will read it, McGlone argues.

"The sender of the text has the right to assume the recipient will read it at a safe time,” McGlone told the local Daily Record  newspaper. “It’s not fair. It’s not reasonable. Shannon Colonna has no way to control when Kyle Best is going to read that message."

He added that there is no precedent for heaping liability on a person on the other side of a text message conversation that causes injury.

Of course, there's no precedent for a lot of legal areas in the Digital Age. In situations like this, judges usually turn to analogies. In driving injury cases, the judge has a bushel full to choose from.

For starters, it's hard to tag liability on anyone who isn't holding the steering wheel of the car while an accident occurs. Lawyers around the nation have repeatedly tried and failed to make passengers partly responsible for accidents caused by drunken drivers when passengers knowingly get into a car with an intoxicated driver.

There are exceptions, however. A South Carolina court has said a passenger could be judged a "proximate cause" of an injury if the driver and passenger were in some kind of "joint enterprise," such as the passenger steering the car while the driver presses the gas pedal.

Passengers who have directly encouraged drivers to break the law -- by urging them to speed excessively or to drive in the oncoming lane as part of a game, for example -- have also been found liable, Weinstein says.

But to find a passenger liable, the South Carolina court said, "The passenger must have an equal right to control the direction and management of the vehicle." It seems hard to argue that a text message sender has equal ability to control the vehicle as the driver does.

But there are plenty of other situations where someone other than the driver has to pay after an injury accident, an extension of liability called “imputed negligence.” The most common is when the driver is "an agent" of someone else -- when a pizza delivery man driving for work causes an accident, his employer is liable.  Parents are often liable for accidents their children cause if they kids are directly under their care. 

There's also concept called "negligent entrustment": if you knowingly let an unlicensed driver take your auto out for a spin, you will probably be liable for an accident he or she causes. 

Neither of those cases fit this situation well, however. So Weinstein has settled on a simpler analogy.

"If she was in the vehicle and put her hands over his eyes so he couldn't see, she would be liable," he said. "(Texting with him) is as if she put her hands over his eyes."

Is texting the digital equivalent of willfully rendering someone blind? To even make that argument, and to press on with the aiding and abetting claim, Weinstein has to persuade the judge that Colonna knew that Best was texting while driving. Colonna's lawyers are contesting that point, but Weinstein says the pattern of texts between boyfriend and girlfriend make clear that she must have known he was on his way home from work.

But even if he fails on that argument, it's easy to imagine other lawsuits where evidence of knowledge by the sender could be hard to deny. A driver might directly text, "Hey, I'm driving home," for example.

That would make a big difference in a case like this, said Robert Mitchell, a Utah-based lawyer and author of a recent article on aiding and abetting claims.

"If there is conclusive evidence that the person sending the text messages to the driver knew the driver was texting while driving, we see no reason why a claim for aiding and abetting the driver’s negligent or reckless conduct could not be made. The case is probably weaker if there is no evidence of actual knowledge, but only evidence of ‘constructive knowledge,’" said Mitchell, referring to a concept that the sender "should have known" the recipient was driving. "Courts disagree over whether constructive knowledge is sufficient to give rise to aiding and abetting liability."

Courts have found that the contribution by this third party in aiding and abetting cases can't be slight – it must be “significant.” For example, giving directions to the bank robber probably wouldn’t be substantial enough to get you prosecuted, but telling him what time security guard shifts change could be. And, as with most civil liability cases, the harm caused by the action doesn't have to be intentional.

Mitchell said this is the critical phrase in the American Law Institute's guidelines.

"If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other’s act. This is true both when the act done is (intentional) and when it is merely (negligent)," Mitchell wrote in his review, quoting the guidelines with added parenthesis. In fact, liability exists even if the third-party has no idea he or she is doing something illegal or negligent.

So in Mitchell’s view, it's a relatively easy to argue that the texter "substantially assisted" the driver in causing the accident. 

"The third prong, substantial assistance, would be an easier hurdle to clear (than knowledge) since sending somebody a text message while driving distracts the driver and that distraction may ultimately cause the accident," he said.  "Of course defenses may include superseding or intervening causes to the underlying tort (the first prong), like bad weather, poor road conditions or visibility, avoiding someone or something on the road."

Not all experts agree, however. Maryland-based lawyer Bradley Shear, an expert in digital law, openly fretted about how far liability might extend if Weinstein is successful in his novel legal argument.

"What if someone is hopping on a boat, and they look down at a text, slip and drown? What if a doctor gets a text before a surgery that upsets him and he makes a mistake? Is the sender responsible?" he said. "If you start going down that route where are you going to draw the line?"

Mark Rasch, for head of the Justice Department’s Computer Crimes Unit, said he thinks the case will boil down simply into this question: Can anyone really prove that the sender of the text, Colonna, knew that Best would read it while driving? Absent such proof, there is no case, he says.

But he was concerned with the larger issue of extending liability through digital means.

“The real question here is, do we as a society want to impose a duty on the non-driving texter for accidents that happen when a recipient is driving?” he said. “For now, it seems a reasonable place to draw the line at this: The person driving has a duty not to text. And the person on other end of line has no duty unless there are special circumstances.”

One special circumstance he envisioned: A boss or other person in a position of power who received a message from an employee saying, “I can’t text, I’m driving,” but continued to send demanding texts with an implied threat if they weren’t answered quickly.

“The person in the position of authority might have liability then,” said Rasch, now a cybersecurity consultant with Virginia-based CSC Inc.

Complicating matters, juries can apportion liability, and theoretically could find a driver 90 percent responsible and the sender of a text 10 percent responsible. Damages can be similarly apportioned, although the realities of collections means the party with the deepest pockets usually pays the most in damages.

It’s also possible that Congress or state legislatures might create a chain of liability, as states have done with dram shop laws, which make bars liable for injuries and damages caused by patron who are served after they’re drunk.

For his part, Weinstein demurs when asked if he's trying to set an important legal precedent or make law. He's just trying to win a case for his client, he said.

"The defense ... wants to make this into a cause celebre, but this is not complicated," he said. "A jury may find I'm wrong and thrown me out on my duff. ... All I'm saying is don't (text) while driving, and don't assist someone else in texting while driving."

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By Jim Gold, msnbc.com reporter

A health issue as old as jet air travel took off anew this week with Boeing Co. settling a lawsuit brought by a former American Airlines flight attendant.

Terry Williams, a 42-year-old mother of two, accused the company of faulty airplane design that left her suffering disabling health woes after breathing toxic jet oil fumes that entered the cabin of an American Airlines MD-80’s air conditioning system.

The fact that oil fumes, often carrying a "dirty socks" odor, have leaked into cockpits and cabins on rare occasions ever since jet airplane designers decided to use systems that draw — or "bleed" -- air from jet engines is not in dispute.

As early as 1953, Boeing issued a "Decontamination Program" report based on a study of bleed air in B-52 flights.

"The possible toxic effect of the contamination is still unknown," noted  the report, which was turned over to Williams' legal team during the discovery process. "As a result, except for specific instances, the crew used 100% oxygen throughout all flights and made their observations by removing their masks for a moment or two."

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It also said the odor "permeates the nasal passages of the men, their clothing, oxygen masks, cabin lining, etc., and lingers for a substantial period of time after exposure occurs."

Despite industry acknowledgement that contaminated air occasionally breaches airliner cabins when seals fail, they have long asserted publicly that "cabin air is safe," saying such exposures are rare and would not produce long term health effects.

Pilots, flight attendants and even some passengers who claim the fumes have left them with long-term ailments like tremors, memory loss, dizziness, disorientation,  headaches and fatigue have had tough times proving their cases. And some crew members who have lost their jobs, allegedly due to ailments from fumes, claim the airline industry and many regulators have covered up the issue and understated the severity of the problem.

Click here to read the full story about Wednesday’s settlement and the long-running debate over the safety of jetliner cabin air.