Commentary

Fight for FDNY Firefighter Comes to Surprise Ending

By ARTHUR O’BRIEN | May 09, 2018
Courtesy of: Arthur O’Brien The author’s grandfather, Thomas O’Brien, poses in the early days of his firefighting career.

For the last 10 years, I’ve been on a mission to restore my grandfather’s good name and to fight to grant him the honor I strongly feel he deserves. I knew it would be hard because he died almost 82 years ago.

When I was growing up, as I wrote in a previous column (“Justice Must Be Served for Wronged Firefighter,” 10/4/17), I knew that New York Fire Department firefighter Thomas O’Brien died in 1935 after fighting a fire. Our family saved an old newspaper clipping reporting his death that stated Fireman Tom fought a fire, complained of a headache and felt dizzy upon returning to the firehouse. No doctor was called; no ambulance was called; he was told to go to bed. He was found dead in his bunk in the morning. The article ended by stating that there would be an investigation.

When I retired about 10 years ago, I was surfing the internet fully expecting to see Fireman Tom’s name on the FDNY Wall of Honor. The 1,100 or so names listed are honored as giving the ultimate sacrifice in the line of duty. His name wasn’t listed. I set out trying to learn why.

I thought I would begin by finding out the result of the investigation referenced in that old newspaper article. I filed a request using the Freedom of Information Act to gather whatever information the FDNY had. Typically, there are reports on every fire fought and a safety report is generated whenever there is a death or injury. I was told by multiple people that there were no such reports or any information pertaining to an investigation. I was told there was nothing more they could do for me without new data. The commissioner would not reverse a decision made all those years ago without something new.

I asked if the fire department had an autopsy report. They said no. I asked if they could get it. They denied my request so I got a copy from NYC, thinking that this would satisfy the need for “new information.” On the autopsy it clearly states that Fireman Tom died due to a fractured skull and lacerated brain as a result of an injury incurred in the fire. Even that did not satisfy the FDNY. They said the autopsy would have been available 82 years ago, so it was not new information. 

Let me explain why this means so much to me. My father, the eldest child in his family, was 20 at the time his father died, but he had left school much earlier when his mother passed. My dad became “the man of the house” at age 14, in charge of his five younger siblings while his father worked 72-hour shifts at the firehouse. As a result of the death of his father, they lost their home and his five younger siblings went to an orphanage on Staten Island.

I remember, years later, whenever my aunts and uncles gathered together, Fireman Tom’s name would come up on occasion. During those family visits, though, they never spoke of those hard times while I was around. They were never ones to harp on the difficult situation in which they found themselves all those years ago. There was never a pity party. As a matter of fact, I only learned much later as an adult that my aunts and uncles were placed in that orphanage. I can only imagine the huge responsibility my father felt at such a young age.

The O’Brien children were smart, but they were uneducated. They didn’t know what was due to them or how to fight the bureaucracy, and they certainly didn’t have the funds to hire a lawyer to fight for them. Knowing all that, I wanted to see this through for my father and my grandfather.

I told this story many times over the years to many sympathetic ears. When I reconnected with an old friend of mine from the Army Reserves, Edward W. McCarty III, I felt like I had met the right lawyer to fight city hall. McCarty was a homicide assistant district attorney, New York Supreme Court justice, law professor and diplomat. This son of an FDNY chief was so moved by the injustice to Firefighter Tom and the O’Brien family, he undertook the case to seek line of duty (LOD) status for my grandfather pro bono. 

Using his contacts in the medical, forensic and legal fields, McCarty put together a comprehensive investigative report. Ed sent the report to the FDNY legal department, asking for a review of the line of duty death. He hoped it would land on the desk of a sympathetic attorney. Unfortunately, we got the same brush-off I had received in all my past dealings with them.

He then filed a formal request to meet with the decision maker. We received a formal response back stating they would not be reversing the line of duty decision. At this point, I was left with no alternative: I told McCarty to start the legal process to have the FDNY ordered to place Fireman Tom’s name on the memorial wall.

McCarty made sure I understood the odds of winning this case were not high and we agreed we would continue parallel efforts to try to get the name on the wall without going to court. My sister told me she could put me in contact with an FDNY chaplain. I spoke to the chaplain and he referred me to an assistant commissioner in family services. I had a long call with this person and, like so many people before her, it sounded like she was sympathetic. When I called her the following week, she said, “You didn’t tell me you had filed suit against the FDNY!”  I said I had no choice and she said, “I can’t help you while a case is pending against the FDNY.”

We went to court on Dec. 8, 2017. When I filed the suit with the FDNY, the case was sent from the FDNY legal department to the NYC corporation counsel. Instead of the hearing, the opposing counsel asked for an adjournment. McCarty agreed to the postponement, but when we stepped outside we asked her why. She said more time was needed to review the FDNY documentation. We said we were told the FDNY did not have any documentation so if any was found we would be very interested in seeing it. After that brief dialogue, McCarty said this could just be a delaying tactic in the hopes we would go away. That wasn’t going to happen. A new court date was set for April 27, 2018.

We were still hoping to resolve this without going to court. I contacted the office of Michael Baden, MD. Dr. Baden is a preeminent pathologist and former NYC medical examiner who is also famous for his input in the O.J. trial. He agreed to review the autopsy and send his opinion, in writing, as an amicus curiae.  He sent a letter which completely confirmed everything I had been saying about the cause of death. Dr. Baden performed this work pro bono.

A few weeks before the scheduled court date, I learned my nephew just happened to have my grandfather’s union card on a memorabilia wall in his home in California. I sent him a text asking for a picture of the card. As soon as I received the picture, I attached it to an email and sent it to the Uniformed Firefighters Association (UFA-NYC), requesting assistance.

Gerard Fitzgerald, the UFA-NYC president, responded to my email. I told him everything I knew about my grandfather’s death and about five of his children being sent to an orphanage. I made clear to Fitzgerald I was not suing the department for any money. After I was done, he said, “People don’t usually call me a softie, but you got me on this one.” I agreed to send him the autopsy and the investigative report for his review. He had a few concerns about the cause of the fractured skull. Luckily, the report had arrived from Dr. Baden so I immediately sent a copy to Fitzgerald and McCarty. The Baden letter resolved every concern Fitzgerald had. 

The next time we talked, Fitzgerald asked what he could do to help. It was 10 days before the court date. I told him I had been searching for one year to locate someone who could call the FDNY commissioner and plead our case. He immediately said he would make the call.  

I was leaving for a week to Colorado the following morning. The day after I arrived, I was enjoying a cup of coffee in beautiful Vail with my wife when McCarty called and said, “We won.” I was stunned, so emotionally drained I could not talk for a couple of minutes. I was told the city corporation counsel said the FDNY would add Thomas F. O’Brien to the memorial wall at department headquarters within 90 days.

By the end of the summer, we will be able to view Thomas F. O’Brien’s name on the memorial wall. I hope my dad and grandfather will be smiling. This story has received attention in the print media and on radio and TV news. I sincerely hope that if other people find themselves in a similar uphill battle, it gives them courage to fight on.

Arthur O’Brien lives in the Dunes.

  

 

 

 

 

 

 

 

 

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