Despite it being suggested that the chances of success were slim, Lieberman and the family's lawyer went ahead with an appeal. On January 31, 2008, a five-judge panel reversed Judge Roth's decision, finding the simplest explanation to be the most likely - that Philip died trying to help people at Ground Zero.
"This is a disturbing case," wrote Judge David Saxe for the other three majority judges. Its central problem was the lack of direct evidence putting Philip at the site of the attack, he agreed. However, he said the "clear and convincing" standard...does not require an absolute certainty; it merely requires that the evidence make the conclusion "highly probable". Even without direct proof irrefutably establishing that her route that morning took her past the World Trade Center at the time of the attack, the evidence shows it to be highly probable that she died that morning, and at that site, whereas only the rankest speculation leads to any other conclusion.
He dismissed the claims made in the police report, saying they were hearsay and had not been properly introduced in the original hearing, instead appended by Winner to a post-hearing report. Nor did she properly follow up on assertions made in the report during the actual hearing. Thus, "any reliance by the court on purported facts asserted in those reports but unproved at hearing was improper." If Juan Lafuente had been found to have faced exposure to the attacks, then Philip could be too, he concluded. He considered it unlikely that she had deliberately disappeared due to the lack of evidence of preparations, and agreed with Lieberman, Gallant and Stark that had she died some other way, some evidence would have turned up in the years since the attack.
The dissenting judge, Bernard Malone Jr., said:Since it is not known where the decedent spent the night of September 10, it requires speculation to say, as petitioner does, that her route home ... southwest of the World Trade Center, took her across or dangerously near the World Trade Center grounds, or that at 8:48 a.m., when the attacks began, she was even in the vicinity of the World Trade Center.
He contrasted her case to Lafuente's by noting that he had had a more predictable daily routine, a stabler life, and that there was independent evidence confirming the meeting at the World Trade Center he might have been on his way to. "The degree of speculation is greater here," he said.
The decision leaves only one missing person whose possible death at the World Trade Center is unresolved. Fernando Molinar, an Ecuadorean immigrant, has not been seen or heard from since September 8, 2001, when he told his mother on the telephone that he was starting a new job at a pizzeria near the building. A similar petition to Surrogate's Court on his behalf also was rejected and has not been appealed.
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Famous quotes containing the words court and/or appeals:
“If a walker is indeed an individualist there is nowhere he cant go at dawn and not many places he cant go at noon. But just as it demeans life to live alongside a great river you can no longer swim in or drink from, to be crowded into safer areas and hours takes much of the gloss off walkingone sport you shouldnt have to reserve a time and a court for.”
—Edward Hoagland (b. 1932)
“We tried pathetic appeals to the wandering waiters, who told us they are coming, Sir in a soothing toneand we tried stern remonstrance, & they then said they are coming, Sir in a more injured tone; & after all such appeals they retired into their dens, and hid themselves behind sideboards and dish-covers, still the chops came not. We agreed that of all virtues a waiter can display, that of a retiring disposition is quite the least desirable.”
—Lewis Carroll [Charles Lutwidge Dodgson] (18321898)