July 8th, 2022

Gov. Hochul Should Sign The Grieving Families Act

Back in 2017 I wrote the piece below on New York’s wrongful death law, and updated it with some additional links in 2021. It’s about New York’s ancient law, which, once upon a time, led the nation in giving rights to families whose family breadwinner had been killed by negligence.

But what once was, is no more. Now we trail the nation, for the reasons set forth below.

The Grieving Families Act has now, finally, passed the legislature. It was an act that has been percolating for as long as I have been practicing law. (See also Daily News Op-Ed: What Gov. Hochul owes grieving families, by Assemblymen Ron Kim of Queens).

Gov. Hochul should sign this very long overdue measure.—-

New York’s Grieving Families

[Updated May 11, 2021 with new legislative links at the bottom]

Once upon a time — like in 1847 — New York was a progressive state. We had, I believe, the first ever wrongful death statute for the benefit of families whose bread-winner was killed due the negligence of others.

And back then that was progressive.

The problem is that we have stagnated. This first-ever law has never been updated.

Essentially, if a family’s non-breadwinner is killed by the negligence of others, that person’s life — in the eyes of New York’s law — is worthless. Because there is no “economic loss” associated with the death. Mostly this means a child or retiree. Neither an infant, nor college student nor retired parent is likely to be providing an “economic” benefit in New York.

The grief of family members is, in New York, completely non-compensable.

Just as I addressed Lavern’s Law last week — the proposed legislation that measures the medical malpractice statute of limitations from the time the malpractice could reasonably have been discovered instead of when it happened — I address different legislation today.

If I can do my little part to help push New York into the 21st century I’ll be happy.

There is really no justification for telling families of the deceased that the court house doors are closed to them for their grief. Many of our sister states have such legislation. When out out-of-state lawyers call me to discuss potential wrongful death matters in New York, they are stunned to hear of the antiquated state of our civil justice system.

For many people, the courts are the only outlet for justice. We don’t encourage vigilantism, by any means, and a working, viable justice system is part of what makes a society function in a semi-civil fashion. And having this outlet oft-times provides a small means of holding people or companies accountable so that the same thing doesn’t happen to someone else’s kid, or parent.

2021 updates:

In the Senate the bill is S. 4006.

In the Assembly it is A. 5612.

The legislature is in session now and considering the bill.

If you don’t know your legislators, you can find them here by simply popping in your address.

Give a call to voice your support. It takes only a few moments.

June 27th, 2022

The Abortion Exception(s) – I Got Questions

With Roe v. Wade dumped on its head last week by the Supreme Court in Dobbs v. Jackson Women’s Health Organization, overthrowing 50 years of precedent, a number of new issues are presented. A great many of them are political issues, as NPR discusses regarding the legitimacy of the court and how this may affect other existing constitutional rights.

I deal today with a different issue, one of practicality and proof. In many states, there will be exceptions for rape and incest. The public will demand it, even in many red states.

The problem? If the only way for a desperate woman to get an abortion is to assert rape or incest, won’t that increase the number of such allegations? Isn’t that likely if the door of easy access is slammed shut?

Will some accusations be bona fide? Yes they will. Some who might have otherwise remained silent will now have an additional, and immediate, reason to come forward.

But will some not be bona fide? Probably. Desperate people, after all, do desperate things.

Will an abortion be a defense to rape? Well, if the woman has an abortion, and this was the only way to obtain one, mightn’t a defense lawyer argue, “This was a consensual act, She only made the allegation to get the abortion.” Will that have an impact when the defense is consent?

Will a rape allegation made solely to get an abortion (assuming you actually knew that answer) serve to denigrate those who have been raped (assuming you actually knew that answer), by diluting accusations? Will this make convictions for rape even more difficult than they are now?

And will an allegation be enough? What kind of proof will the state demand? Will she need state approval? What if an anti-abortion bureaucrat state dilly-dallies? And what if the acquisition of the proof — which may entail, for example, searches of electronic devices — takes a few months? Will the woman have to wait? Does she get the abortion only with a conviction of the accused? And if she does have to wait, well, you know where that is going.

Other have written of the many problems this decision will have, oft times dealing with the issues of FDA approved drugs, traveling out of state to get an abortion, telemedicine from out of state doctors, funding abortions, etc. Expect a flood of new legislation, all of which will be challenged.

I approach this from the perspective of one who does not do criminal defense law. But I do look at proof all the time. Regardless of whether an allegation is civil or criminal, proof is always an issue for the person that approaches Incident X with an open mind, as we all should.

Add this to the list. The laws and litigation that will flow from this day forward will be immense given the issues that have been raised. Will some new standard of proof be invented?

June 8th, 2022

NY’s New Social Media Reporting Law

New York Gov. Kathy Hochul turned a few heads when she said, during a speech regarding new gun safety laws:

“And in the state of New York we are now requiring social media networks to monitor and report hateful conduct on their platforms.”

Say what? Require a social media company to “report” “hateful conduct?”

Report to whom? And what, exactly, is “hateful conduct?”

From the bill jacket, we’ll start with the “definition” of hateful conduct:

Specifically, this legislation defines hateful conduct to mean the use of a social media network to vilify, humiliate, or incite violence against a group, or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.

Vilify? Humiliate? According to who? Such vague language is the hallmark of legislation struck down on First Amendment grounds. So this is not an auspicious start.

But on reading it I saw that all the law actually required, contrary to what the Governor said, is that there must be an easily accessible mechanism for a user to report the issue to the social media site owner. Which, as far as I know, all of them already have.

There is no mechanism within that new statute for Facebook or Twitter to report to the government, or report to anyone else for that matter.

It also requires the social media company have a policy in place to deal with the situation. But the law does not (and could not on First Amendment grounds) tell the social media network how to handle those complaints.

So the network could have a policy of “Our company deals with these complaints on a case by case basis, and does so totally and unapologetically on whim.” Hey, it’s a policy, isn’t it?

In essence, the law does nothing.

Here’s the Governor’s brief (and erroneous) remarks on the subject:

March 24th, 2022

Assumption of Risk and the Swimming Pool

The fact pattern seems simple enough. A high school student at a swim meet dives off a diving block into the shallow end of the pool, four feet deep, and is injured when hitting the bottom. (A.L. v. Chaminade Mineola Socy.) She sues everyone involved.

Most lawyers would jump up and yell, “Assumption of risk! Dismiss the case!” And in fact, that is what the lower court did on the defendants’ motion for summary judgment.

That doctrine states that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from such participation. If so, case dismissed, and it isn’t even necessary to discuss if the defendant was negligent. (see, What Risks Have You Assumed?)

But the area to focus on, as always, is what constitutes “commonly appreciated risks?” Commonly appreciated by whom? If risks are concealed or unreasonably increased over those inherent in the sport, then the plaintiff might be able to plow ahead.

(Thus, a sporting waiver shouldn’t be written in legalese for a court to view in the event of an injury, but as an opportunity to explain “commonly appreciated risks,” as I did with this trail race waiver that I once crowd-sourced.)

Here, the critical factor is whether the participant’s appreciation of the inherent risk is “to be assessed against the background of the skill and experience of the particular plaintiff.”

As the matter came before the court on a summary judgment motion, the court’s inquiry is devoted to seeing if there are issues of fact for a jury. Or can the court decided it as a matter of law?

But the student testified at her deposition that “she was a competitive swimming novice with little to no experience diving into shallow water from a starting block, and that she did not receive adequate training from her coaches to safely perform race-start dives in this manner.

Since the issue of assumption of risk must be balanced against the the background of the skill and experience of the injured party, there was an issue of fact for the jury.

Thus, the Appellate Division (Second Department) reversed the lower court and sent this matter back for trial.

December 13th, 2021

The “Independent” Medical Exam is Dead

This post is a two-parter and I struggle to figure out which part is more important. First, an appellate court in New York has finally stuck a fork in the “independent” medical exam. It is dead and gone.

Second, the same court in the same decision has stated that the human body is not capable of spoliation. I’ll deal with that quirky part first (though each is worthy of a separate post).

It’s been a recent trend by some defense lawyers to claim that a personal injury plaintiff could not get surgery to fix their condition. Unless it was an emergency. They had to first give defendants a chance to have the person examined before the plaintiff’s body was changed, or in the words of the law, “spoliated.” And if there is spoliation, then sanctions can be imposed.

And some lower courts bought that argument.

But in Gilliam v.UNI Holdings, a unanimous panel of the Appellate Division (First Department) said no way, you can’t give spoliation sanctions for people getting their bodies fixed after the defendants broke them:

We now reverse and hold that the condition of one’s body is not the type of evidence that is subject to a spoliation analysis. And, to the extent that these lower court decisions hold that spoliation analysis encompasses the condition of one’s body, they should not be followed… To so hold would improperly subject a plaintiff’s health condition to an unsuitable legal analysis. Instead, a failure to appear for an ME, regardless of whether the failure to appear is preceded by medical treatment for the condition at issue, should be analyzed the same as other failures to comply with court-ordered discovery.

Did you see that “ME” in there? That stands for medical exam. I’ll get to that part in a minute.

But first, as rationale for why you can’t “spoliate” the human body the way you could with the destruction of documents, devices, electronic evidence and a wide variety of equipment ranging from treadmills to chairs, the court held:

The state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an “obligation,” to preserve his or her body in an injured state so that a defendant may conduct an ME, is antithetical to our belief in personal liberty and control over our own bodies.

People should not be forced into the “absurd” situation of being forced to forego surgery to heal themselves because a lawsuit is pending, says the court:

Plaintiffs must be free to determine when to undergo medical treatments based on personal factors such as doctor’s advice and their specific pain and discomfort level. It would be absurd for courts to require a plaintiff to forego surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the injury.

Now on to that part about the “ME.” For as long as I have practiced law — and I am coming up on 36 years since I was admitted to the bar — defense lawyers and the courts have insisted on using the phrase “independent” medical exams (IME) to refer to exams that defendants were entitled to in order to assess the damage to the human body or mind after a collision or other mishap. When you place your body in issue in a lawsuit, after all, you waive any confidentiality for those particular body parts and the defendants are entitled to have a doctor examine those parts.

But it was never independent. We all knew this. These were not, after all, doctors hired by the courts. They were hired by the defendants as part of litigation.

Back in 2013 I did a series of posts on Quickie Medical Exams that last, often, no more than a few minutes at most so that a doctor could testify that the injured plaintiff wasn’t really hurt, or had fully recovered. It was, and often continues in my opinion to be, a flat out scam and form of insurance fraud (one that favors the insurance company).

Routinely over the years I have struck the word “independent” from the forms for routine discovery orders, insisting they be called Defense Medical Exams or Medical-Legal Exams. I first wrote about this in 2009 (2009!) when I asked Is the “Independent” Medical Exam Dead?

I wrote it because of a dissenting opinion from this same court, the First Department, where Justice McKeon asked a question that former Chief Judge Lippman had already asked (also in dissent):

…the “independent” prong of the term, has long been winked at by the bench and bar. Few consider the physical examination conducted for purposes of litigation as independent; indeed, one court has described it as part of the “adversarial process” (Bazakos v Lewis, rev’d on other grounds) with Chief Judge Lippman forthrightly observing that “[t]hese exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee (id. at 6 [Lippman, Ch. J., dissenting).

At that time I prognosticated:

So let me be the first to proclaim that the “independent” medical exam is dead. Sure, it may still take a few years to see it buried altogether, but make no mistake about it, it is on an irreversible course to the trash heap of litigation history.

And now it is dead. For reals. There is no longer a question mark on the issue, at least in the First Department (New York and Bronx counties). It seems unlikely that any other appellate department would continue to claim such exams are “independent.” The dissents of Lippman and McKeon have won the day. The First Department now says:

It should also be noted that defendant has mischaracterized the nature and role of “independent” MEs in personal injury litigation, presumably to cast plaintiff’s surgery as an egregious and sanctionable act. Such examinations “far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee’s claimed injury and to dispute the need for any treatment at all” (Bazakos v Lewis, 12 NY3d 631, 638 [2009] [Lipman, Ch. J., dissenting]). Viewed in this context, an ME is simply one piece of evidence in a personal injury action.

So the Gilliam case addresses two significant issues. The first is somewhat limited and a little bit quirky — the issue of spoliation of the human body.

But the second is significant to all personal injury actions where the plaintiffs are examined. No more should a court refer to these exams — either in decisions or in front of jurors — as independent.

They aren’t. And they never were. And we should no longer be asking if the “independent” medical exam is dead. It is. Good riddance.