New York Law Journal: Hochul Vetoes Bill to Update Wrongful Death Law After Compromise Talks Stall

By: Brian Lee

After stalled negotiations with supporters of the Grieving Families Act, Gov. Kathy Hochul late Monday vetoed the measure that had hoped to update New York’s 176-year-old wrongful death law.

Hochul’s decision, which she said was based on averting “unintended consequences” of a measure that had passed with overwhelming majorities in the Legislature, was issued nearly at the deadline for action on a bill that exposed divisions in New York’s legal community.

Hochul’s veto message about A.6770/S.74A indicated she was torn by what she said was a well-intended proposal that had “significant unintended consequences,” including an indefinite class of beneficiaries, and the bill’s potential impact on health insurance costs.

The bill passed through the state Senate, 57-6, and the Assembly, 147-2, seven months ago, but Hochul said lawmakers hadn’t conducted “a serious evaluation” of the bill’s impact of massive changes on the economy, small businesses, individuals, and the state’s complex health care system.

A legislative override is likely not in the offing, Capitol-watchers said, since the bill was approved in the previous session. But backers were looking for paths to move forward in the new session.

Critics of Hochul’s counterproposal said that she had pared it down too far, allowing only for actions of the wrongful deaths of people under age 18, meaning it wouldn’t have applied to the adult victims of a racist shooting massacre at the Topps grocery store in Buffalo in May 2022, or victims of the Schoharie limousine crash of 2018.

Hochul’s counter also exempted deaths involving actual or potential claims for medical malpractice.

Hochul said enactment of the bill would have resulted in “an extraordinary departure” from the Empire State’s wrongful death jurisprudence.

The bill hoped to broaden the class of beneficiaries who may recover damages in survival actions for wrongful death from statutorily defined “distributees” to “surviving close family members,” as determined by a jury.

Hochul said this indefinite class of beneficiaries would pose difficult questions of fact regarding “closeness” in every lawsuit. Hochul said the broad and possibly overlapping categories of damages might result in confusion for judges, juries and litigants. 

The bill, which would have applied to pending lawsuits, hoped to no longer limit compensable damages to pecuniary losses; and instead would include compensation for grief or anguish caused by the decedent’s death; disorders caused by such grief or anguish; loss of love, society, protection, comfort, companionship and consortium; as well as funeral and medical expenses; loss of nurture, guidance, counsel, advice, training and education and pecuniary injuries.

It would have extended the statute of limitations for wrongful death actions from two years to three years and six months and for Sept. 11 victims, the statute of limitations would have extended to four years.

Hochul said the bill’s application to pending cases meant claimants and courts would be forced to grapple with new competing claims asserted by close family members, and it would protect discovery and increase litigation costs, potentially upending cases that are already far along in the judicial process.

Hochul said it was also reasonable to expect that the bill as drafted would increase already-high insurance burdens on families and small businesses and further strain already-distressed healthcare workers and institutions. The increased costs would be particularly challenging for struggling hospitals in underserved communities. 

The governor said the GFA “should be able to turn to the courts for justice, accountability and meaningful compensation for their loss.”

Hochul asserted that the legislature “declined to join me in taking a purposeful step forward by granting parents the right to seek emotional damages for the heart-wrenching loss of a young child, I remain steadfast in my commitment to delivering justice for New Yorkers.”

Bill opponent Claire Rush, president of the Defense Association of New York, said the bill as drafted was fatally flawed.

“What I’ve said all along is that the Defense Association, and I’m sure the healthcare industry and hospitals and municipalities, would all welcome the opportunity to work with the legislature and the other groups to craft an amendment to the wrongful death statute that would address everyone’s concerns and due process rights,” Rush said Monday. “But the bill that was submitted for signature to the governor was incredibly one-sided.”

She continued: “It provided a right to recovery for people that wouldn’t have a right to recover under laws of intestacy. It just flies in the face of how our estate, powers and trusts law is set up.”

Rush added that the retroactivity provisions “were just blatantly unconstitutional, in my mind.”

The head of the Lawsuit Reform Alliance of New York, one of the bill’s biggest opponents, also saluted the governor’s veto.

“Gov. Hochul’s measured action in vetoing the radical expansion of liability in S.74A has New York’s local governments, small businesses, and healthcare workforce breathing a collective sigh of relief,” said its executive director Tom Stebbins. “Now is time to get to work and rein-in New York’s already out of control litigation climate. To bring balance to the system, reduce unintended consequences, and avoid increasing costs at a time when we can least afford it, lawmakers must work with stakeholders to craft a bill that benefits all. The health and prosperity of the Empire State’s economy depends on it.”

On the other hand, bill supporter, the New York State Trial Lawyers Association, was harsh in its criticism of Hochul’s rejection.

“By vetoing the Grieving Families Act, Gov. Hochul has sided with insurance companies, the healthcare industry, big corporations, and anyone else who doesn’t want to be held accountable for the negligent killing of a person, Tom Valet, president of the New York State Trial Lawyers Association, said in a statement.

“Gov. Hochul has turned her back on the people who deserve the opportunity to seek justice the most. Until it is changed, the wrongful death statute will continue to deliver uneven justice for communities of color, women, children, seniors, people with disabilities, and those with low incomes. In the 2023 legislative session, we will continue the fight to change this law and give New York families the dignity and justice they deserve.”

Ahead of the deadline on Monday, Hochul published an op-ed in which she indicated she would veto the bill.

Reacting to the governor’s open letter, bill sponsors, state Sen. Brad Hoylman-Sigal, D-Manhattan, and Assembly member Helene Weinstein, D-Brooklyn, said they were ” extremely disappointed” that Hochul hadn’t engaged in serious discussion with her partners in the legislature.

“Instead, the Governor has proposed a half-baked compromise that would only delay long overdue reforms to this archaic 175-year-old law while protecting negligent corporations and institutions from any accountability,” their joint statement read.

The lawmakers shot back at Hochul’s claim that the Grieving Families Act wasn’t subject to careful analysis because it was passed on the last day of the legislative session.

They said Hochul “fails to acknowledge that this bill had been carried by Assemblywoman Weinstein for over 29 years, during which time it has been considered and approved by several committees in both houses, in addition to having been debated on the floor of the Assembly and Senate.”

Hoylman-Sigal and Weinstein said it was “inexplicable” that Hochul “failed to review the bill during” the seven months since the legislature passed it, waiting “until the 11th hour to raise the need for further statistical analysis, which would seem to be a tactic to gut the legislation or delay its implementation indefinitely.” 

Under Hochul’s proposal, victims of the racist massacre at the Topps grocery store in Buffalo, victims of the Schoharie limousine crash, and others would have been excluded from the Grieving Families Act.

“Despite the staggering inadequacy of her proposal, we offered to negotiate to find common ground, only to be turned away by the Governor, who presented her proposal as “take it or leave it.” Hoylman-Sigal and Weinstein said. “The victims of wrongful death and their families deserve better than the status quo, and they certainly deserve better than the Governor’s proposal, which will help virtually no one.”