Human life is priceless. But when a price must be set, Kenneth Feinberg is the right man for the job. Sporting a fancy tie and trendy glasses, the 72-year-old Jewish lawyer might be described as the Forrest Gump of U.S. bureaucracy: there’s almost no event in recent American history he hasn’t been involved in.
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It was Feinberg who calculated how much the U.S. government had to pay its soldiers who developed severe medical conditions attributed to the use of Agent Orange during the Vietnam War; he who headed the September 11th Victim Compensation Fund, and also managed the BP Deepwater Horizon Disaster Victim Compensation Fund after the oil spill in the Gulf of Mexico.
He was also involved in the lawsuits after the massacres at Virginia Tech in 2007 and Sandy Hook in 2012, and oversaw the big banks bailout in the 2008 Wall Street crisis. More recently, he helped coordinate compensation for relatives of the victims of the 2016 attack on Orlando nightclub The Pulse.
In other words, Feinberg is a wizard at what he calls “the mathematics of disaster.”
In times when grief-stricken relatives are trying to pick up the pieces, this diligent bureaucrat calculates the potential income of the deceased and their former economic situation. Every person has a name and, as far as Feinberg is concerned, every person also has a salary slip (and if he doesn’t, his relatives will have a harder time proving they deserve any compensation).
Feinberg is profiled in new documentary “Playing God,” by German filmmaker Karin Jurschick, which had its North American premiere last week at DOC NYC. “During the day, I see the worst of civilization – death, anger, tragedy, frustration,” he says drily, seated in a recliner in his living room, during the film’s opening scene. “At night, on the other hand – a concert, an opera, Wagner, Brahms, Beethoven ... the height of civilization. The contrast is remarkable.”
During the 90 or so ensuing minutes, Feinberg reveals the two belief systems that drive him: law and capitalism. His uncompromising faith in numbers and the legal system leads to his third belief – that financial compensation is the only way to rectify injustice. In Feinberg’s world, only money talks. He sees loss, emotion or empathy merely as obstacles blocking his Excel charts.
“If you’re hit by a car, if you fell from a ladder, if you came down with food poisoning or slipped on the sidewalk,” he says, pausing for dramatic effect, “Money! The responsible party will pay financial compensation to the victim, and the mistake will be rectified.”
Later, Feinberg explains the logic on which the compensation formulas for both government and huge corporations are based: “If the person harmed was a banker or stockbroker, his family will get much higher compensation than what will be given to the families of a waiter, soldier, policeman or fireman,” he says.
In December 2001, Feinberg ruled that families who lost loved ones in the World Trade Center attack would get compensation ranging from $300,000 to $3 million per family, in accordance with the victim’s earnings. As with any compensation fund managed by Feinberg, in order to receive these sums, the families had to promise in advance not to file any civil damage suits – in this case against the airlines, employers, the state or other agencies.
What turned this Massachusetts native into such a well-oiled calculating machine? The film doesn’t provide an unequivocal answer, and Feinberg doesn’t disclose much about his private life. The only hint – a Freudian slip, perhaps – is found when Feinberg reveals that when he was young, he dreamed of being an actor – but since his father objected to his studying acting, he went to law school instead.
His parents must have been proud. In 1967, Feinberg earned a bachelor’s degree in history from the University of Massachusetts and in 1970 received his law degree from New York University. His meteoric rise began when he clerked for Chief Judge Stanley H. Fuld at the New York State Court of Appeals; he then worked as a federal prosecutor and as chief of staff for Democratic Senator Edward Kennedy from 1975-1980. In 1984, though he had no mediating experience, he helped settle a years-long dispute between Vietnam vets and the makers of Agent Orange (a herbicide used during the Vietnam War). That launched his activities as a special mediator in numerous famous cases.
“The work that I do isn’t exactly legal work,” he says. “It’s half divinity and half psychology. In the end, we’re talking about human beings who have lost their lives in a tragedy.”
“Playing God” raises weighty questions regarding the legal and financial logic that guides compensation funds, which are frequently set up following man-made disasters that could have been prevented, or their damage at least reduced.
The film documents in detail the deadly BP oil spill in the Gulf of Mexico seven years ago, and Feinberg’s considerations in determining the level of compensation to the fishermen who lost their livelihoods as a result.
What is now considered one of the worst environmental disasters of all time began with a blowout at an underwater oil well on April 20, 2010. This caused an explosion on the Deepwater Horizon drilling rig that had been chartered to BP. The explosion killed 11 workers and wounded 17; it also caused the rig to sink. Two days later, a large oil slick began to appear, and oil continued to leak into the sea for 87 days.
Following lawsuits filed against BP, Feinberg determined that the company should pay compensation to the injured, the families of those killed and the states that suffered direct or indirect damage as a result of the pollution – a total of $18 billion. But the company refused to accept responsibility for the ongoing and long-term environmental harm caused by the spill, which caused significant damage to Gulf of Mexico fishermen and killed numerous whales, dolphins, fish and other marine life.
Though he told the victims he was representing their interests, Feinberg’s salary was actually paid by BP. Asked about that by journalists, he said he had consulted with an ethics expert at NYU, who determined that there was no conflict of interest. He later insisted that though technically BP had paid him, he examined every compensation claim independently and objectively.
In one of the film’s more depressing scenes, Feinberg agrees to meet with George Barisich, a commercial fisherman whose livelihood was severely damaged in the years following the disaster. When the fisherman complains that the amount of shrimp in the Gulf dropped by more than 35 percent after the oil spill, Feinberg launches into legalese, saying that additional variables must be examined to determine a cause-and-effect relationship. As he proclaims, “That’s not because of the oil spill. It can be attributed to other causes, other reasons.”
Adds the veteran lawyer, “We offered you a very generous compensation plan. Somebody got that money – it didn’t stay in BP’s pockets.”
When the fisherman – a tanned, middle-aged man – painfully informs Feinberg he became sick after being exposed to toxic substances since 2010 and that one of his lungs has stopped functioning, Feinberg refuses to be moved. “You are making a big assumption. You’re making an assumption that your illness was caused by the oil spill,” he tells him. “There is nothing else that could explain what happened to me and thousands of other fishermen,” Barisich insists. “I’ve worked on fishing boats all my life. I don’t smoke, don’t drink and exercise regularly. I am surrounded by friends who got sick and had lesions after the spill.”
Feinberg stands his ground. “It has not been demonstrated that physical illness was caused by that oil spill.”
This impressive, if unsettling, ability to look someone in the eye who has lost his livelihood and health, and coldly explain that a smoking gun is required – proof beyond doubt that the oil spill caused his lung collapse – attests to the problematic nature of compensation payments as a legal concept. If the system was totally objective and based on predetermined calculations regarding a loss of income, this could be seen as a lesser evil, since financial compensation can significantly ease the burden of families who have lost their breadwinner.
But Feinberg’s long and storied career points to a double standard when it comes to the value of human life. Even as he calculates every penny that comes out of the compensation funds for the victims of giant corporations, he shows surprising empathy when it comes to the salaries of senior executives at the big banks that caused the 2008 financial crisis.
Through its frenetic editing, Jurschick’s film moves from Feinberg’s efforts to mediate with thousands of low-income American workers, liable to lose most of their pension money because of the tumbling stock market, to an interview with Lewis B. Kaden, vice chairman at Citigroup and one of the strongest figures in the U.S. banking world.
According to Kaden, Feinberg decided that the salaries of senior executives at the banks bailed out by the federal government should be capped at $500,000 a year. “By normal terms, by terms of most families, that’s still a lot of money. But one has to understand that these senior or highly compensated employees of big financial institutions were used to much more cash. Everyone always adjusts their lifestyle to their income up to a certain limit, and so for a lot of them it was ... it’s hard to use the word ‘hardship,’ because compared to the suffering that average families suffered it wasn’t hardship, but it was a shock.”
Feinberg, in turn, explains why he didn’t think it was fair to punish these people. “When you provide compensation to innocent victims of tragedy – 9/11, [the] BP oil spill, General Motors – it is very, very emotional. But let me tell you something: When you reduce a corporate official’s pay, when you tell somebody at Citigroup or Bank of America or AIG, ‘You’re going to receive 50 percent less than you did the year before,’ that is very emotional too. The problem is when you cut somebody’s pay, that compensation is a barometer of self-worth and integrity.”
When you tell an executive he’ll be earning $500,000 a year instead of $1 million, Feinberg says, it pierces the soul. “That corporate official sees that reduction as criticism of his self-worth, self-evaluation; he sees this as a failure,” he notes.
Don’t let these fears keep you awake at night. In 2009, while tens of thousands of Americans were losing their homes and savings due to the subprime mortgage crisis, Goldman Sachs paid its employees over $20 million in bonuses – thanks in part to the rescue plan Feinberg co-authored. He exempted several AIG executives from the $500,000 ceiling in 2011, and approved a $7 million wage packet for its vice president.
Meanwhile, also in 2011, Barisich and some 30,000 other Gulf of Mexico fishermen volunteered for federal research that would be conducted over the next decade, trying to document the health implications of the Deepwater Horizon spill. In a compromise offer in 2014, BP agreed to fund health expenses up to $60,000 per person.
“In what I’ve done over the past 30 years, you better brace yourself for the criticism,” Feinberg concludes. “You’re dealing with individuals in grief who have lost loved ones, who are angry. You cannot do what I do and expect praise, thank yous, gratitude. Not from the victims. But I think generally the public understands and supports what I do in times of crisis. The criticism is not personal. It should be expected – that’s human nature.”