Crain’s New York: Op-ed: Hochul, legislature should start over on wrongful death bill

By: Claire F. Rush

When legislators craft bills in Albany, they need to ensure any new law is workable as a matter of public policy and that it is compatible with constitutional principles such as due process. Unfortunately, the bill lawmakers will soon be sending to Gov. Kathy Hochul to amend New York’s wrongful death law is problematic on a number of levels. As such, legal experts throughout the state are calling on her to veto the bill and convene an expert panel to write a bill that properly compensates grieving families without running roughshod over the civil justice system. Enacting the bill as drafted would deprive defendants of their due process rights in pending lawsuits. It will also have the unintended effect of delaying resolution of existing claims. At the same time, the bill will drastically and unpredictably increase liability for individual defendants, local governments, New York’s public agencies like the Thruway Authority or Department of Transportation and our heroic healthcare providers. The reality is this bill is too open ended, leaving courts and juries with no guardrails to determine how to fairly assess damages and who should be compensated. New York has historically endorsed the principles of certainty, predictability and finality. Enactment of this legislation would subject defendants to the specter of defending against new claims brought by an endless universe of potential plaintiffs. Uncertainty also makes it nearly impossible to forecast potential liability. This would have a significant impact on the ability of the state, its municipalities, its public authorities, and insurers who write coverage in New York to properly understand their liability exposure. If we review how New York juries treat wrongful death suits under current law, the bill may be unnecessary altogether. Juries routinely return, and appellate courts routinely sustain, significant verdicts for conscious pain and suffering in wrongful death cases.

Indeed, a review of New York case law establishes that juries and courts regularly make large non-economic and pecuniary awards in wrongful death cases. If signed into law, these new amendments will increase settlements and verdicts well beyond reasonable compensation for surviving families, leading to increased costs for all. Awards are currently rising quicker than inflation. If this bill becomes law, it is without question that taxes will need to increase to cover awards and the increased cost of insurance. Some businesses will surely choose to no longer do business here, further eroding not only our tax base but opportunities for employment. With so many legal and practical matters at issue in this well intended but poorly wrought piece of legislation, the Defense Association of New York has no choice but to strongly oppose this bill and urge the governor to veto it. With time and collaboration, we can draft a bill that works for everyone.

Claire F. Rush is president of the Defense Association of New York.