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 NOTE FROM THE EDITOR:
The New York Senate and Assembly has passed the Grieving Families Act, legislation that will completely overhaul wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons who can seek recovery in a death claim. The bill will now go to the Governor for final consideration and is expected to be signed into law.
Currently, under the NYS Estate, Powers & Trust Law (§ 5-4), the recovery for wrongful death in New York is limited to the pecuniary loss to the survivors of the deceased. It is primarily economic loss driven to compensate only those who were financially dependent on the decedent. If the plaintiff dies without financial dependents, the value of the claim is often limited to conscious pain and suffering (if any) and modest funeral and burial expenses. This bill dramatically expands the damages recoverable in a wrongful death claim to include emotional damages such “grief” and “loss of love.” It also permits recovery not just by financial dependents, but “close family members” as decided by a finder-of-fact. The statute of limitations is also increased from two years to three and a half years. Notably, this act, if signed into law, “shall take effect immediately and shall apply to all pending actions and actions commenced on or after such date."
The language of the legislation as well as the sponsors' memorandum, can be found by clicking on the bill numbers: S74A (Hoylman)/A6770 (Weinstein):
The bolded language below adds to the category of damages that would be recoverable:
(I) REASONABLE FUNERAL EXPENSES OF THE DECEDENT PAID BY THE PERSONS FOR WHOSE BENEFIT THE ACTION IS BROUGHT, OR FOR THE PAYMENT OF WHICH ANY PERSONS FOR WHOSE BENEFIT THE ACTION IS BROUGHT IS RESPONSIBLE.
(II) REASONABLE EXPENSES FOR MEDICAL CARE INCIDENT TO THE INJURY CAUSING DEATH, INCLUDING BUT NOT LIMITED TO DOCTORS, NURSING, ATTENDANT CARE, TREATMENT, HOSPITALIZATION OF THE DECEDENT, AND MEDICINES.
(III) GRIEF OR ANGUISH CAUSED BY THE DECEDENT'S DEATH, AND FOR ANY DISORDER CAUSED BY SUCH GRIEF OR ANGUISH.
(IV) LOSS OF LOVE, SOCIETY, PROTECTION, COMFORT, COMPANIONSHIP, AND CONSORTIUM RESULTING FROM THE DECEDENT’S DEATH.
(V) PECUNIARY INJURIES, INCLUDING LOSS OF SERVICES, SUPPORT, ASSISTANCE, LOSS OR DIMINISHMENT OF INHERITANCE, RESULTING FROM THE DECEDENT’S DEATH; AND LOSS OF NURTURE, GUIDANCE, COUNSEL, ADVICE, TRAINING, AND EDUCATION RESULTING FROM THE DECEDENT'S DEATH.
It would also lengthen the wrongful death statute of limitation from two years to three years and six months.
While the current law permits recovery only by the decedent’s distributees, this bill increases the category of individuals who may recover:
SURVIVING CLOSE FAMILY MEMBERS, WHICH MAY INCLUDE, BUT ARE NOT LIMITED TO, SPOUSE OR DOMESTIC PARTNER, ISSUE, PARENTS, GRANDPARENTS, STEP-PARENTS AND SIBLINGS. THE FINDER OF FACT SHALL DETERMINE WHICH PERSONS ARE CLOSE FAMILY MEMBERS OF THE DECEDENT UNDER THIS SECTION BASED UPON THE SPECIFIC CIRCUMSTANCES RELATING TO THE PERSON’S RELATIONSHIP WITH THE DECEDENT.
For some historical perspective on this legislation, please read Hurwitz Fine attorney Alice Trueman’s recent article, Redefining ‘Family’: Emotional Damages and the Grieving Families Act, published in the New York State Bar Association Journal, May/June 2022 edition.
In other legislative news, Mike Williams takes a break from his MDL column to give us an update on the recently passed Adult Survivors Act.
You may notice that we have a new look, logo, and streamlined name, Hurwitz Fine. This coincides with the celebration of the 45th anniversary of our firm this June! I am very proud and fortunate to be a small part of nearly 20 of those 45 years as a firm. Headquartered in Buffalo, we have grown to nearly 60 attorneys located throughout nine current locations.
“Our new brand is both a celebration of our past and an enthusiastic look to the upward trajectory of the firm, which is spurred by our niche practices, the formation of industry teams, and emerging areas of law.” – Jody E. Briandi, Hurwitz Fine President/ Managing Partner.
Certainly, the most important products liability news this month comes with the pending amendment to the wrongful death statute, which could exponentially expand damages in death claims. It also opens the door to a host of other litigation issues in these claims, notably who is a “close family member” entitled to compensation. If you were riveted by the drama of the Johnny Depp- Amber Heard trial, imagine family members competing in open court over who loved the decedent more. Appellate Courts tend to slow down in the summer, but there were a couple of decisions worthy of mentioning. We have the classic saw/router claim involving a severed finger. A plaintiff attempts to stave off dismissal by arguing that the Governors’ pandemic Executive Orders tolling the statute of limitations for the commencement, filing, or service of any legal action applies to a self-executing discovery order of preclusion. There is an interesting jurisdiction decision in an asbestos case involving a plaintiff who claims exposure to talc products while simply in New York for layovers working as a flight attendant. Also, in the land of asbestos, a Niagara County jury awarded $2 million to a 72-year-old plaintiff living with mesothelioma.
And now for this month’s dad joke:
How much does a rainbow weigh?
Not much, it’s pretty light.
-VCP
V. Christopher Potenza ■ Member
Hurwitz Fine P.C.
The Liberty Building
424 Main Street, Suite 1300 ■ Buffalo, NY 14202
tel (716) 849-8900 ■ cell (716) 523-8941
fax (716) 855-0874
Email: [email protected]
HF Website: http://www.hurwitzfine.com
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Don’t forget to subscribe to our other publications:
Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Contact Dan Kohane at [email protected] to subscribe.
Employment & Business Litigation Pointers: Employment & Business Litigation Pointers aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments. Contact Joe Brown at [email protected] to subscribe.
Labor Law Pointers: Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. Contact Dave Adams at [email protected] to subscribe.
Medical & Nursing Home Liability Pointers: Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Chris Potenza at [email protected] to subscribe.
Premises Pointers: This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at [email protected] to subscribe.
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By: Michael J. Williams
[email protected]
GOVERNOR HOCHUL SIGNS ADULT SURVIVORS ACT LEGISLATION
“I came of age in the ‘60s and ’70 when all the rules about behavior and workplaces were different. That was the culture then.” Harvey Weinstein, Oct. 5, 2017; but see People v. Weinstein, __ N.Y.S.3d __, 2022 WL 1788228 (1st Dept. June 2, 2022) (affirming criminal convictions).
On May 24, 2022, Governor Hochul signed the Adult Survivors Act (S.66A/A.648A) to amend CPLR 214-j in a manner patterned after the Child Victims Act (S.2440/A.2683). The ASA offers restorative justice to adults who suffered sexual assault at any time in New York’s history. The look-back window provides for six months during which claimants may prepare their cases, followed by a one-year period when they may file suit without regard to the statute of limitations. New York and other governmental actors are at equal risk, as the ASA offers relief to claimants who previously filed no timely notice of claim. Under analogous legislation, the CVA resulted in nearly 11,000 civil actions being filed.
Public or private entities such as for-profit corporations, religious institutions, schools and governmental branches must prepare themselves for the ASA litigation ahead. As litigating the CVA taught us, identifying persons who may become alleged perpetrators or witnesses, preserving relevant documentation and in-depth insurance archaeology become critical tasks that should be on every agenda. Businesses must proactively consider when such litigation, or the departure of key executives in the face of litigation, becomes reportable under SEC regulations. National and international organizations – including “deep pocket” parent organizations often sued for actions occurring at their subsidiaries – must also prepare.
While the ASA reopens the opportunity to sue, defendants retain traditional defenses including the absence of foreseeability, lack of control over the nexus premises or alleged perpetrators, and perpetrators’ actions exceeding the scope of their employment. Prepared defendants have successfully asserted these defenses in CVA litigation, along with meritorious counter- or crossclaims where warranted. Unprepared defendants start with the six-month deficit the ASA grants plaintiffs, risking spoliation charges, incomplete coverage data and missed opportunities to reach confidential and early individual or aggregated settlements.
Potential defendants must also remember what constitutes no defense: merely apologizing for sexual misconduct, gaslighting survivors through press releases or industry channels or touting societal contributions as if they somehow balance out sexual assault. Weinstein tried each of these and lost to the strength of #MeToo. See Construction Laborers Pension Trust for Southern California v. CBS Corporation, 433 F.Supp.3d 515, 527 (S.D.N.Y. 2020). Construction Laborers, in addition to discussing Weinstein, reported that defendant’s lawyers publicly advised that “there was nothing to worry about.” That’s incorrect. The ASA is every bit as concerning as the CVA. There’s just no reason to panic for properly prepared defendants.
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Manufacturing Defects
By: Brian F. Mark
[email protected]
In-person appearances are starting to resume with more frequency in the NYC Metro area courts. In fact, I’m writing this missive while waiting for a calendar call in Supreme Court, Kings County. While such appearances are far from being regular occurrences, it is a positive sign for a return to normalcy.
This week’s case arises out of accident involving a hand-held router, which kicked back during use and injured the plaintiff. The Appellate Division, First Department, examined claims sounding in failure to warn and design defect, ultimately departing from Second Department precedent and finding that the lack of an interlock can support a design defect claim.
05/31/2022 Vasquez v. Ridge Tool Pattern Company
Appellate Division, First Department
First Department departs from Second Department precedent, finding that the lack of an interlock can support a design defect claim.
Plaintiff was using a Rigid branded hand-held router to cut wood flooring when it kicked back after encountering a knot in the wood, severing his thumb. The First Department reversed the trial court’s denial of summary judgment dismissing the claims against Ridge Tool Pattern Company (“Ridge Tool”), finding that Ridge Tool was involved with the router as trademark licensors and were not involved in the manufacturing, selling, or distribution chain. The Court also found that plaintiff’s failure-to-warn claim based on alleged deficiencies in the router’s manual should have been dismissed as plaintiff admitted he never read the manual.
The denial of the portion of defendants’ motion for summary dismissal of plaintiff’s “generalized” failure to warn claim was affirmed. The Court noted that recovery may be properly denied to a product user who was fully aware of the hazard through general knowledge, observation, or common sense. However, even if a product user has some degree of knowledge of the potential hazards in the use of a product, summary judgment will not lie where reasonable minds might disagree as to the extent of the knowledge.
The record contained evidence that plaintiff had knowledge of power tools other than the router and the general hazards associated with cutting devices. Plaintiff also had used the router on one prior occasion at the premises before the accident. However, the Court ruled that it is for a jury, not the court, to determine whether, based on the evidence and testimony presented, plaintiff had sufficient knowledge of the specific hazards from the use of the router to relieve defendants of their duty to warn of them. The Court further noted whether the router presented an open and obvious danger is also a jury issue.
The Court affirmed the denial of that branch of defendants’ motion for summary judgment dismissing the design defect claim based on the lack of an interlock. In a clear departure from Second Department precedent, the First Department held that the lack of an interlock can support a design defect claim. Accordingly, defendants failed to establish their prima facie entitlement to summary judgment dismissing the design defect claim based on the lack of an interlock. Rather, they merely pointed to gaps in plaintiff's proof, which was insufficient to meet their initial burden.
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Failure to Warn
By: Stephen Sorrels
[email protected]
I have a confession to make: This was the last article submitted for this newsletter. While I certainly intended to have this completed by Tuesday, it is now Thursday and I am finally putting the proverbial “pen to paper”.
I wish I would have followed Benjamin Franklin’s advice by not putting “off until tomorrow what you can do today”. However, my mantra for this month’s article is more akin to Rita Mae Brown’s “If it weren’t for the last minute, nothing would get done”.
According to www.solvingprocrastination.com, procrastination is “a chronic issue for approximately 15%–20% of adults, and approximately 25% of adults consider procrastination to be a defining personality trait for them”. Additionally, procrastination is associated with a wide range of mental and physical health issues, such as stress and an increased rate of illness, as well as with the tendency to delay getting treatment for those issues. Furthermore, gender may be associated with procrastination as the research suggests that men tend to procrastinate more than women.
In the practice of law and as exemplified by this month’s case, procrastination and/or repeated delays in providing appropriate discovery may result in undesirable outcomes as well as the attorney next appearing on the wrong side of a legal malpractice action.
06/03/2022 Little v. Steelcase, Inc.
Appellate Division, Fourth Department
COVID Is Not a Cure-All for Non-Compliance
In this product liability action, plaintiff’s counsel continued delay discovery by providing defense counsel with medical authorizations unreasonably restricting the scope of medical records to be received preventing the release of care and treatment to injuries alleged within the interrogatories. As a result of these restrictions, defense counsel filed a motion to strike the amended complaint or, alternatively, to compel plaintiff to comply with outstanding discovery with the penalty of a self-executing order of preclusion. Based upon this motion and following oral argument held on October 2019, the Court granted defendant’s application compelling plaintiff to provide outstanding discovery with the plaintiff preparing the order in accordance to the Court’s determination.
Plaintiff provided to defense counsel on March 6, 2020, authorizations for several treating providers with limitations and restrictions. On March 10, 2020, the court issued an order concerning the October 2019 decision granting defendant’s motion and requiring plaintiff to provide unrestricted authorizations as to date or body for treating providers “no later than April 10, 2020”. Also contained within this order was the directive that plaintiff’s failure to comply with the order would result in a “self-executing order of preclusion as to the outstanding discovery for all purposes in this litigation”.
At a Court conference on July 1, 2020, defense counsel advised of the intention to move to dismiss the action based on the defective authorizations. According to the decision, plaintiff’s counsel provided new authorizations on or about July 2, 2020.
In response thereto, defendant made a motion to strike the amended complaint for failing to comply with the March 2020 order and for summary judgment due to plaintiff’s inability to establish any claim for damages. Plaintiff responds to this application by asserting a mistake and law office failure by the person who provided the March 6, 2020 authorizations. Additionally, plaintiff further argues that the that the deadline established within the March 2020 order was tolled or otherwise stayed by the Executive Order of the New Governor and an Administrative Order issued in response to the COVID-19 pandemic. Following oral argument, the court granted summary judgment to the defendant and dismissed plaintiff’s amended complaint.
In affirming the decision of the trial court, the Appellate Court held that a conditional order of preclusion is self-executing and the failure to produce items on or before the date certain rendered it absolute. The court referenced that plaintiff did not cross-move for vacatur of the March 2020 order and further failed to establish a reasonable excuse for failing to produce the requested items and the existence of a meritorious.
In addition and contrary to plaintiff’s contention, the Appellate Court held that the Administrative Order did not toll the deadline of the March 2020 order as plaintiff failed to show that the law office failure was related to the pandemic. Furthermore, the court determined that the Governor’s Executive Order was inapplicable as its purpose was to toll statutes of limitations and not deadlines contained within discovery orders.
The obvious lesson learned from this case is the importance of complying with discovery orders. However and despite best efforts (unrelated to any procrastination), there may be times where any attorney finds themselves in a position where compliance of a discovery scheduling order becomes difficult or impossible. If there is good reason, then these issues are usually able to be resolved through discussion with or correspondence between both opposing counsel and the court. In those instances where a resolution is not obtainable, then an application to vacate or modify the order should be strongly considered.
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Toxic Torts, Asbestos, and Lead Paint
By: Jesse L. Siegel
[email protected]
A reprieve this month from our usual quasi-related sports fact to report on a recent verdict in an asbestos case in Niagara County.
Plaintiff Benedict Viglietta, 72 years of age at the time of suit, alleged that he was diagnosed with mesothelioma in late March 2021 due to exposure to asbestos. He stated that he worked for Durez Plastics for two summers during 1974 and 1976 for a period totaling less than six months. The jury was asked to assess liability against the trial defendant, Hedman Resources, an asbestos supplier as well as Johns Manville, the bankrupt insulation, commercial roofing and building materials company. After deliberating for only a few hours, the jury found Johns Manville 65% at fault and Hedman 35% at fault on liability. However, there was a finding of recklessness against Hedman. The jury returned a verdict on damages for the plaintiff in the total amount of $2 million. $1.5 million was earmarked for past pain and suffering, while $500,000 was awarded for future pain and suffering. The latter figure was stated by the jury to cover 15 years of future pain and suffering. If you are doing the math, this amounts to roughly $100,000 per month for past pain and suffering.
Shifting gears, this month’s case summary seems to ask a simple question; whether a New York Court has jurisdiction over an asbestos company incorporated in New Jersey. The twist is that the Plaintiff is a flight attendant who traveled to New York and used the asbestos-containing product while within the state, though never actually purchased said product in New York.
06/02/2022 English v. Avon Prods., Inc.
Appellate Division, First Department
Court had long-arm jurisdiction over asbestos company with principal place of business in New Jersey because company maintained New York office and engaged in persistent course of conduct transacting business in New York during time of plaintiff’s alleged asbestos exposure.
Linda English, the injured plaintiff, allegedly developed mesothelioma from her use of an asbestos-containing talcum powder product called Desert Flower, which was manufactured and marketed by Shulton, Inc. English, a Texas resident, was employed as a flight attendant from 1966 to 1999. For a substantial portion of that time, she used Desert Flower on a daily basis after showering. From 1966 to 1984, she was regular assigned flights into New York, approximately 2-4 times per month. She routinely had 2-3 day layovers in New York. The Desert Flower would be placed in her luggage to use after showering. No Desert Flower used in New York was ever purchased in New York.
Shulton was incorporated in New Jersey, and also maintained its principal place of business there. Shulton never manufactured Desert Flower in New York. However, Shulton did maintain a New York office for conducting marketing activities for its Cosmetics and Toiletries Division. This office was also the headquarters for Shulton’s International Division.
A court may not exercise personal jurisdiction over a nondomiciliary unless the action is permissible under New York’s long-arm statute, and the exercise of jurisdiction comports with due process.
Put differently, since plaintiff was a Texas resident, the primary issue was whether the Court had specific jurisdiction over Shulton. Secondarily, plaintiff’s claims must have an “articulable nexus” with Shulton’s transactions within the state.
Under the guidance of CPLR 302(a)(1), the Court made a two-pronged jurisdictional inquiry. First, the Court analyzed whether the defendant conducted sufficient activities to have transacted business within the state. The Court found that Shulton’s maintenance of an office in New York satisfied this prong. Shulton engaged in substantial marketing efforts from this office through at least 1971, which coincided with plaintiff’s use of Desert Flower. The second is whether plaintiff’s claims arose from Shulton’s transactions. The Court also found this prong satisfied, as Desert Flower was marketed and sold nationally, and plaintiff used Desert Flower while she travelled and stayed in New York.
Thus, the Court found Shulton’s activities and contacts within New York and the Desert Flower product were sufficient to support an assertion of specific jurisdiction over Shulton.
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Hurwitz Fine P.C.
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The Liberty Building, 424 Main Street, Suite 1300,
Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874
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