New York Law Journal: Defense Bar Group Asks Governor to Veto Wrongful Death Bill

By: Brian Lee

A proposed bill that would strengthen compensable damages under New York’s wrongful death law “is fraught with problems,” a statewide bar association whose members often defend against such lawsuits said Thursday, taking a position that is at odds with another trial lawyers group focused on the plaintiffs’ side.

Gov. Kathy Hochul is expected to either sign or veto the Grieving Families Act by close of the year, and during the 11th-hour surge, the approximately 700-member Defense Association of New York wrote her a letter in opposition to the bill.

According to DANY, which has an upcoming meeting with attorneys from the governor’s office, the bill would “upend the handling of every pending wrongful death action in this state,” while leaving “courts and juries with no guardrails to determine who should be compensated or how to fairly assess and calculate appropriate damages for such losses.”

Conversely, the more than 5,000-member New York State Trial Lawyers Association is one of the measure’s most vocal backers.

Sponsored by state Sen. Brad Hoylman, D-Manhattan, and Assemblywoman Helene Weinstein, D-Brooklyn, the bill aims to allow for nontraditional family members to seek compensation for wrongful death and add 18 months to the current two-year statute of limitations.

New York enacted its wrongful death statute in 1847, intending to give women and children an opportunity to seek relief if the male breadwinner of their household died.

New York and Alabama are the only states that don’t allow grieving loved ones to seek some form of recovery for their emotional suffering by limiting damages to the deceased’s earning potential.

New York’s current law provides for compensation to spouse and children to receive pecuniary losses, such as for medical, nursing, rehabilitation or funeral costs, along with the loss of financial support to the spouse and children, and the loss of parental guidance to the children.

Supporters of the bill say that nearly all other states have since expanded the wrongful-death remedies afforded to survivors, with New York lagging behind.

In an interview with the Journal, DANY President Claire Rush said the bill will have the opposite effect of what it’s intended to do.

“These retroactivity provisions are really troublesome,” Rush said. “So someone that may not have even possessed a claim when the case was resolved, could now potentially possess a claim, and you have this whole new universe of plaintiffs that haven’t existed previously.”

Its letter to Hochul said: ”DANY submits that the prejudicial impact of the retroactivity provision of the Bill is clear and that as a consequence the Bill will surely be subject to significant constitutional attacks.”

The association also said the bill fails to define “close family members,” nor does it spell out or limit any disorder caused by grief or anguish.

Citing a 2022 Millman study that said medical malpractice costs in New York are likely to increase approximately 40% to 45% if the bill becomes law, Rush said the cost of the proposal would be borne by private citizens and businesses in increased insurance premiums and additional taxes.

“The same thing is going to happen in the general liability sphere,” Rush said.

But the trial lawyers association replied that DANY was simply repeating false claims about the act’s impact on insurance rates that originates from insurance companies.

“As expected, the insurance companies oppose a bill that would make it possible for everyday New Yorkers and their families, regardless of their race, gender, age or ability, to seek full accountability for negligence that leads to the loss of innocent lives,” Thomas Valet, president of the NYSTLA, and a partner at Rappaport, Glass, Levine & Zullo, said.

“These companies make money by denying claims and denying justice. They would rather uphold a status quo that delivers uneven justice for victims based primarily on their income,” Valet said.

Hoylman said the bill aims to fix the current law limiting awards based on a decedent’s economic output, which he said discriminates against children, seniors, women and people of color.

“The bottom line is that we can’t put expense and profit ahead of valuing a life,” the lawmaker said. “Other states don’t, and their business and medical industries continue to prosper. New York shouldn’t either.”

Meanwhile, DANY cited wrongful death awards that “in the opinion of many members of  the defense bar border on the punitive.”

• An appeals court in October upheld awards of $5.5 million and $7.5 million for emotional and physical pain and suffering to the estates of two workers who died as a result of the collapse of a crane at a construction site on 91st Street in Manhattan in 2008.

• In an asbestos exposure case captioned Murphy-Clagett v. AO Smith Water Prods. Co., a Manhattan trial court judge in 2019 granted a defense motion to set aside a verdict unless the plaintiff stipulated to reduce the decedent’s award for conscious pain and suffering from $25 million to $10 million for 15 months of pain and suffering, and to reduce the loss of parental guidance awards from $17 million to $9 million for one of his children, and $18 million to $10 million for another.

• Following the 2016 death of a man who was riding a motorized scooter who was struck by a motorist on a Long Island road, the Second Department in October upheld a $2 million award to the executrix of his estate; the estate had sued the driver for failing to stop at a stop sign, and North Hempstead for failing to maintain vegetation in a median island on the road, creating a dangerous condition for the stop sign and stop sign’s placement.