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April 23, 2014

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Tragedy’s cold calculations

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Yes or no? If a survivor of the Boston Marathon bombing loses a limb, and his wife also loses a limb, should they be compensated under some notion of cumulative impact that is greater than double the sum of their individual claims? And if yes, what is that new number?

The administrator of the One Fund Boston, Kenneth Feinberg, can’t ponder for too long. This was just one question put to him at one of the public hearings at the Boston Public Library held this week. His consistent answer — a refrain he has told the victims of 9/11, the BP oil spill, and the Virginia Tech shootings — is that he doesn’t do happiness. “ ‘Happy’ never enters into this equation,” he once told families of 9/11 victims. Indeed, in order to meet his June 30 deadline for finalizing protocols, assessing claims and distributing funds, “not happy” is about the only standard that will meet with universal consensus.

The response to the Boston Marathon attacks has moved quickly through the stages of horror, grief, remembrance, recovery and resolve to a newer phase that is quite distinct and technical: claim adjudication. Aware that mechanical discussions about deadlines and forms is unsentimental, a room was set aside next to the library’s Rabb Lecture Hall for those who needed private time or were overwhelmed by the rather legalistic process of victim compensation. Red Cross volunteers were there to help, as well.

Sitting solo or in small groupings in the cavernous room, the families of four people who were killed and up to 300 who were injured listened to Feinberg’s hourlong explanation of the task he has been given by Mayor Thomas Menino and Gov. Deval Patrick. Feinberg has a special talent to sound exacting and compassionate simultaneously. He has spent a career attaching dollar signs to national tragedies. He knows this drill.

A draft protocol was distributed that set some standards for compensation, but final resolution of the tougher questions will not be determined until later this month. Death claims, double amputees and those who sustained permanent brain damage will take priority. Proof of injury will require detailed documentation. Families will have to sort out on their own which relatives should share the claim.

Some of the sobering challenges will be solved soon enough. For example, $17 million of the nearly $30 million raised has been pledged but is still not yet collected; no one knows how much will actually come through. There is also no definitive master list of the physical injuries that were sustained that day. It won’t be easy, over the next few weeks, for Feinberg to divide an uncertain amount of money among an uncertain number of victims.

The most serious conundrum will be reconciling the seemingly incompatible goals of speed and equity. Audience members challenged Feinberg’s suggestion that there would be no means-testing for the fund. Why would a single-amputee banker, with plenty of health insurance and no direct impact on his earnings, be paid the same as a bus driver with the same injury? It is a fair question. But without more time to sort out the precise circumstances of each victim, deciding who is most needy will be impossible. And so Feinberg will have to choose between making such determinations and getting payments to victims as quickly as possible.

Soon into the meeting, it became obvious that the public hearing wasn’t just a chance for victims and their relatives to ask questions. It was a chance for Feinberg to lower their expectations and warn them about what victim compensation can and can’t do: They will never truly be “made whole” again.

That sentiment stands in stark contrast to the can-do spirit of the One Fund itself. Ironically, just as Feinberg finished his explanation, a star-studded concert to benefit the One Fund sold out in just five minutes.

Feinberg noted during the hearing that the challenges raised in claims adjudication would defy Solomon, the biblical king. It is a bad comparison. When two women, vying for a child, were told by Solomon that he would split the baby so they could share, the true mother was known when she rejected the offer in order to protect the baby’s life. Solomon handed her the healthy child. She was happy.

The One Fund Boston doesn’t do happy.

Juliette Kayyem is a columnist for The Boston Globe.

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  1. If I understand how the Boston Marathon recompense works, it's different than others that Mr. Feinberg supervised. The victims can receive recompense from Boston [via Mr. Feinberg] and still sue if they prove official negligence abetted the tragedy. That doesn't make one happy but makes it right and just.

    Carmine D