Legal Newsline: New York lawmakers approve expansion of liability in renewed wrongful death bill

By: Juliette Fairley

The New York Assembly and Senate approved a bill last week that increases damages recoverable in wrongful death lawsuits to include non-economic damages.

The legislation, if signed into law by Gov. Kathy Hochul, will increase general and automobile policy premiums by 11%, which is equal to an estimated $2.14 billion for New York residents and businesses, according to Milliman, Inc. estimates.

"By passing this bill, New York lawmakers are ignoring the concerns of local governments, doctors, and hospitals, and feedback from Governor Hochul's office,” said Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York (LRANY).

Governor Hochul, who previously rejected a nearly identical bill earlier this year, wrote in her veto memo that she is concerned about the unintended consequences and the increased costs for healthcare providers and New York households.

“We hope to see Governor Hochul once again veto this bill,” Stebbins told Legal Newsline. “The legislature needs to bring all impacted parties together to draft a bill that works for all, not just wealthy trial attorneys. Unfortunately, the Assembly and Senate cast those concerns aside and passed another fundamentally flawed bill.”

In addition to non-economic damages, A.6698/S.6636 would also include damages such as grief or anguish, loss of love, society, protection, comfort, companionship, and consortium, and loss of nurture, guidance, counsel, advice, training, and education.

“Organizations representing every sector of the economy – from construction to trucking to small businesses – have all called on the legislature to analyze the fiscal impact and rethink their approach to this proposal,” Stebbins said.

Plaintiffs’ attorneys already receive 33.3% of a settlement or verdict.

Attorney Mark Behrens, co-chair of Shook, Hardy & Bacon's its Public Policy Group, explained in a New York Law Journal article that non-economic damages are typically awarded as a supplement to economic damages but are highly subjective.

"Many of the jurisdictions that do allow this form of recovery have guardrails built into the law to limit non-economic damages, at least in medical liability cases," Behrens said. "New York, on the other hand, has no damage cap and awards are already higher than other states. Further, asking juries to award damages for amorphous categories of recovery including grief, loss of love, comfort, and companionship, and loss of nurture creates the obvious potential for overlapping, duplicative awards."

Bills are sent in batches to Gov. Hochul's office throughout the year.

The legislative session has ended, but the governor has until the end of December to act on bills passed.