New York Law Journal: NY Law Journal: Gov. Hochul: Don’tAllow Inflation in Wrongful Death Lawsuits

By: Mark A. Behrens & Christopher E. Appel*

Governor Kathy Hochul will soon receive a controversial bill that would dramatically expand wrongful death awards in the Empire state, pressuring civil defendants and ultimately driving up the cost of goods and services for New Yorkers as a form of inflation. The Governor should veto the Grieving Families Act (Senate Bill S.74A) or at least return this radical proposal to the legislature and ask lawmakers to adopt an approach that is more mainstream.

When a person’s death is caused by the wrongful act of another, New York, like all states, has a statute that provides who can bring a lawsuit and the types of damages that can be recovered. Current New York law provides that claims can be brought by the decedent’s survivors, such as a spouse or parent, or another clearly defined relative entitled to share in the decedent’s estate. These individuals can recover various types of pecuniary losses that are typically measurable, such as expenses for medical care related to the death, funeral costs, lost earnings, and the value of lost services.

Surviving children can also recover for the loss of parental guidance. The person’s estate can additionally file a survival action to recover the damages the decedent experienced before his or her death, including pain and suffering. When a death results from a reckless disregard of a person’s safety or intentional misconduct, a court may impose punitive damages.

New York plaintiffs already recover extraordinary awards when a death caused by someone else occurs. Personal injury lawyers, with the help of expert witnesses, are skilled at presenting to juries the monetary value of lost services and earnings. For instance, a New York jury once awarded $41.5 million to the family of a sanitation worker who was killed by a runaway street sweeper. The award included $40 million in pecuniary losses. The massive award, which was later reduced and subsequently settled, demonstrates that the availability of noneconomic damages is not needed to obtain a large award in New York.

S.74A would change both who can sue and what damages can be recovered in wrongful death actions. Most significantly, the legislation would expand recoverable damages to include various types of noneconomic damages, including uncapped “grief or anguish,” “loss of love” and companionship, and “loss of nurture” and guidance.

Awards for grief are particularly controversial in wrongful death cases. Even the progressive-minded American Law Institute shies away from endorsing this scope of recovery in its forthcoming treatise on remedies. As the draft Restatement of Torts, Third: Remedies recognizes, “most states do not compensate for grief or emotional distress” for wrongful death.

Many of the jurisdictions that do allow this broader form of recovery also expressly limit the total recovery of noneconomic damages, at least in medical liability cases. New York, on the other hand, has no damage cap and already pays out more than other states.

Layering grief on top of other amorphous categories of recovery for loss of love, society, comfort and companionship, as well as loss of nurture and guidance also creates an obvious potential for overlapping, duplicative recoveries. It would put New York jurors already struggling to quantify noneconomic damages in a rational way in the difficult position of additionally having to distinguish and separately value concepts such as grief, anguish, and loss of companionship.

S.74A would also open the door to lawsuits by individuals claiming they are a “close family member” of the decedent. Rather than define who may qualify, the legislation makes the question of whether the person suing is a “close family member” among the issues for a jury trial. While this change may be well intended to provide flexibility for evolving family structures, the likely result will be courtroom battles with lawsuits potentially filed by distant, long-lost relatives who emerge only after a death. This vague and undefined term will create expansive liability.

The proposed law would additionally increase New York’s two-year statute of limitations for bringing a wrongful death action to three and a half years, which would be one of the longest wrongful death limitation periods in the nation. These limitations periods exist to balance an individual’s ability to bring a lawsuit with the ability to mount a fair defense and to protect courts from stale claims.

Further, the bill purports to apply retroactively to all wrongful death claims pending at the time of enactment. Doing so would expose defendants named in lawsuits to sudden, heightened liability, raising serious due process concerns. It would significantly disrupt New York’s insurance market, as policies for individuals and businesses were priced based on lower expected levels of liability exposure.

Each of these amendments alone would significantly expand wrongful death recoveries, but the combination of these amendments would make New York’s wrongful death act an extreme outlier relative to other states.

Tort awards in New York are already among the highest in the nation. A national study of personal injury and wrongful death cases performed by the U.S. Chamber of Commerce Institute for Legal Reform found that New York had the third most “nuclear verdicts” (verdicts of $10 million or more) of any state between 2010 and 2019, and the second most on a “per capita” basis. S.74A would push the state further in that direction.

New York is also home to the most medical malpractice lawsuits in the nation. S.74A is estimated to increase insurance premiums for doctors and other healthcare providers by several billion dollars annually.

The legislation will hurt, not help, the Empire State. It will increase the costs of medical care for New Yorkers, raise insurance premiums for homeowners, motorists and businesses of all sizes, and add costs to construction and other development projects throughout the state. It will make New York one of the least attractive places to operate in the nation.

Governor Hochul should veto S.74A or demand that lawmakers pursue wrongful death act amendments that reflect mainstream American law. Creating amorphous categories of inherently subjective and immeasurable damages, expanding the scope of potential claimants in an undefined manner, allowing more time to file lawsuits than in other states, and applying these changes retroactively is a recipe for an unbalanced, unfair civil justice system.

* Mark A. Behrens co-chairs Shook, Hardy & Bacon L.L.P.’s Washington, D.C.-based Public Policy Group. Christopher E. Appel is a Senior Counsel in the firm’s Public Policy Group.