Newsday: Hochul's veto upsets families seeking to change state's wrongful death statute

by Robert Brodsky - Link to Original Article

January 8, 2024

Every morning for the past eight months, Gary Falkowitz has woken up to the grim reminder that a large piece of his heart is gone forever.

On May 3, Falkowitiz's 14-year-old son, Ethan, was killed, along with fellow Roslyn High School tennis player Drew Hassenbein, when an older teammate’s 2019 Alfa Romeo was struck by the pickup of a wrong-way driver police say was drunk and speeding.

Despite his overwhelming grief, Gary Falkowitz has found a renewed purpose in recent months: advocating for the passage of the Grieving Families Act, a bipartisan bill that would change the state’s wrongful death statute by letting families recover damages for emotional suffering, including by suing for negligence such as medical malpractice.

But the hopes of Falkowitz, and several other Long Island families who've lost children to horrific crashes and have lobbied for the bill's passage, came to a halt last week when Gov. Kathy Hochul vetoed — for the second consecutive year — the act, which had widespread support in both parties and chambers in Albany.

“This has been an issue in the state for years. And the reasons I'm hearing are all about business,” Falkowitz said in an interview this week. “But, where's the humanitarian side? Where's the urgency to help these families?”

'Not the American way' say advocates

The current statute, which dates back 175 years, allows civil court judgments only for “pecuniary loss” or the potential earning power of the deceased person, meaning that children and the elderly who do not work are valued less than members of the active workforce. 

Advocates have argued the current system results in higher damages paid for the wrongful death of a doctor or lawyer than a bus driver or janitor, simply based on their income.

New York is one of just three states — the others are Alabama and Delaware — that bars claims for grief and mental anguish caused by wrongful deaths.

Since Hochul's Dec. 29 veto, other Long Island parents who've struggled with tragedies have vocalized their anger with the governor, arguing she is beholden to the insurance and health care lobbies, along with other special interests who've fought the legislation.

“For grieving families, the money is not going to give us back what we've lost,” said Kurt Kiess, whose son, Ryan Kiess, 25, of Manhasset, was one of five killed in a head-on wreck in Quogue in 2021. “It's about making people accountable for their actions. We don't protect wrongdoers in this country. That's not the American way.”

In her veto statement, Hochul wrote that it is “undeniable” that the state's wrongful death statute must be updated but that the current legislation does not “create the requisite balance” and creates the risk of “unintended consequences.”

“Legitimate concerns have been raised that the bill would likely lead to increased insurance premiums for the vast majority of consumers, as well as risk the financial well-being of our health care facilities — most notably, for public hospitals that serve disadvantaged communities,” Hochul wrote, adding that negotiations with the legislature on potential legislative compromises were not successful.

Hochul told reporters Tuesday that she has spoken with lawmakers and expects the measure to be debated again in the 2024 legislative session.

“I’m not going to disclose those negotiations because I suspect they will come back again,” Hochul said.

Hochul vetoed similar legislation early in 2023, citing many of the same arguments. The most recent bill narrowed the pool of recipients eligible to sue to household members of the deceased but would include stepchildren and non-married partners.

But even with that change, the legislation was opposed by dozens of groups representing insurance companies, small businesses, municipalities, manufacturers, doctors and hospitals, and the trucking industry — many predicting skyrocketing premiums and economic calamity if the bill became law.

“As written, the bill is out of line with any other state,” said Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York. “There’s a big difference between modernizing the law and enacting legislation as radically expansive as this bill. If the legislature is serious about reform in this area of law, it is time to bring all stakeholders to the table to craft a bill that benefits grieving families without disrupting the health care system, draining municipal and school budgets, and increasing costs for consumers.”

Stavroula Savelidis, president of the Nassau County Medical Society, said the bill would have placed an undue burden on physicians and patients and have “far-reaching consequences that could have severely impacted the health care landscape in our state.”

3rd try at passing legislation?

State Sen. Brad Hoylman-Sigal (D-Manhattan), the bill's lead Senate sponsor, said he plans to reintroduce the legislation and hopes to meet with the governor to discuss areas of potential compromise. A veto override, he said, would have needed to occur in the same calendar year that the legislation was passed.

“It's a moral imperative and I would argue it's not so much about dollars and cents. It's about treating people equally,” Hoylman-Sigal said of the bill. “It shouldn't matter that you are a working-class New Yorker or stay-at-home mom or somebody with a disability in that your life is devalued under the current statute. It's offensive and that's why we will pass it again and continue to build our coalition.”

Assemb. Helene Weinstein (D-Brooklyn), the lead Assembly sponsor who has been trying to get the Grieving Families Act passed since 1994, said Hochul and the other opponents of the bill have mischaracterized the potential impact of the legislation.

“This fear of increased costs just hasn't happened in other places,” she said of states that have passed similar legislation. “Every time we try and make a change like this week, we hear a 'sky is falling' situation. And we pass legislation and the sky doesn't fall. So we have to just keep forging ahead and seeing if there are any tweaks we can make.”

'Appalled' by the veto

Alisa McMorris of Wading River, whose son, Andrew, was killed in 2018 by a drunken driver while he and fellow Boy Scouts were hiking in Manorville, said she was “appalled” by Hochul's veto, which came late on a Friday evening before a holiday weekend.

“What is your child worth?” asked McMorris, who visited Hochul's Manhattan office in late-December to advocate for the bill. “Most of the people discussing these laws and amendments have never experienced the senseless killing or maiming of a loved one personally. They have never sat next to a grieving parent on the bed of their child as they sobbed into a pillow that their child once used. This is an archaic law written in 1847 that uses metrics that are discriminatory.”

The vetoed legislation also would have enabled families who file lawsuits over a loved one’s wrongful death to be compensated for funeral expenses, some medical expenses and for grief or anguish incurred as a result of the death.

Nancy DiMonte, of East Northport, a spokeswoman for the families of those killed or hurt in a deadly 2015 limousine crash in Cutchogue, said everyone deserves to be treated equally, no matter their salaries or earning potential. 

“Our girls were in their twenties when that crash happened, and the deceased girls were looked at as they're not earners,” said DiMonte, whose daughter, Joelle, then 25, was seriously injured but survived the crash. “For lack of a better expression, they were not worthy of collecting what a person who was an earner would in that situation. And that has to change.”

Falkowitz, who recently endured his first holiday season without Ethan, said he doesn't plan to give up the fight.

“I lost a child,” he said. “My son. A part of me is gone. And I have to do everything in my power to right this wrong.”