Monthly Archives: September 2007

 

September 5th, 2007

NY Child Killer Wants $15M Award Tossed — Decision May Have Wider Reprecussions

How much is too much when it comes to pain and suffering? While I have dealt with that subject before (see: How New York Caps Personal Injury Damages), New York’s Court of Appeals will re-visit today the issue in one of the saddest cases ever brought. And if they follow the law, they may be forced to reduce a compensatory damage award against a monstrous child killer.

The year was 1987 and now-disbarred lawyer Joel Steinberg beat his six-year old daughter Lisa to death. In 2004 the executor of Lisa’s estate procured a $15M judgment: $5 million for Lisa’s pain and suffering that day, $5 million for her pain and suffering as a battered child, and $5 million in punitive damages.

In a split decision from New York’s Appellate Division First Department in January 2007 that upheld the award from trial judge Louis York, Justice James Catterson, wrote for the majority as he bluntly summarized the case:

Joel Steinberg, the defendant-appellant, is a convicted child killer and abuser who fatally felled his six-year-old daughter with one blow of his hand, and then went out to dinner as she lay on a bathroom floor losing consciousness over the next eight to ten hours. He appeals now from a judgment that awarded damages against him for the pain and suffering he caused the little girl during her life, and in the tormented hours before her death.

Steinberg who appears pro se in this action complains, inter alia, that because the first-grader’s death was preceded by “at most eight hours of pain and suffering” and “quick loss of consciousness [emphasis supplied],” the award of $15 million in compensatory and punitive damages is excessive. We disagree, and in simply so stating acknowledge that sometimes words fail even those who use the language to render judgments on a daily basis.

In upholding the award, the Court specifically rejected its prior case law, with this rationale:

This case of an abusive father killing his child by knocking her down with a “staggering” blow to her head and then leaving her without medical attention while he enjoyed dinner and freebased cocaine is without precedential analog. Consequently, we find ourselves free to evaluate the award on the basis of “subjective opinions which are formulated without the availability, or guidance of precise mathematical quantification. [emphasis added]

The repercussions on New York law could be quite dramatic, unless the court rules (as it may try) that the facts of the conduct are so without precedent that even if the compensatory award is upheld, it could not be used on any other cases.

But wait! If New York’s high court goes that route, they have a major problem. As Justice James McGuire notes in a separate dissent:

In reviewing this award of compensatory damages, it is important to bear in mind that the outrageousness of appellant’s conduct is not a relevant factor.

He goes on from there to cite U.S. Supreme Court precedent:

“Although compensatory damages and punitive damages are typically awarded at the same time by the same decisionmaker, they serve distinct purposes. The former are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct. See Restatement (Second) of Torts § 903, pp. 453-454 (1979); Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 54 [111 S.Ct. 1032, 113 L.Ed.2d 1] (1991) (O’Connor, J., dissenting). The latter, which have been described as ‘quasi-criminal,’ id. at 19 [111 S.Ct. 1032], operate as ‘private fines’ intended to punish the defendant and to deter future wrongdoing. A jury’s assessment of the extent of a plaintiff’s injury is essentially a factual determination, whereas its imposition of punitive damages is an expression of its moral condemnation” (Cooper Indus. v. Leatherman Tool Group, 532 U.S. 424, 432 [121 S.Ct. 1678, 149 L.Ed.2d 674] [2001] ).

And so there is, I think, the ultimate battle: On one side a huge award against a despised individual who did unspeakable acts. And on the other, a real issue that while punitive damages are to punish, compensatory damages are not supposed to take into account the nature of how the injury occurred. The bottom line: By considering the nature of the conduct for both punitive damages as well as compensatory damages, the court is allowing double-dipping. They are using the exact same conduct to justify two different awards.

This analysis of the extent of compensatory damages, by the way, brings me back to the September 11 lawsuits that I discussed yesterday, and the limited amount of damages that might be available to claimants. It seems likely that, if the compensatory award in Steinberg is upheld, claimants attorneys will attempt to cite it whenever possible in trying to uphold large awards, notwithstanding any caveat the court attempts to use in stating that this was a one-of-a-kind suit based on the reprehensible nature of the conduct.

Additional sources:

 

September 5th, 2007

New York City Reports Lowest Number of Claims In 10 Years

The New York City Comptroller’s Office reported that personal injury claims against the city have dropped to a 10-year low. This includes cases in the most expensive claims category, medical malpractice. From the Executive Summary of the report comes this:

In Fiscal Year 2005, the cost of claims totaled $529.8 million. In Fiscal Year 2006, the cost of claims totaled $496.4 million. This represents a decline of 10 percent and 16 percent respectively from the historic high of $589 million in Fiscal Year 2001.

The most remarkable part of the report was not all the facts and figures in the report, but that the city just created a new division regarding risk management (Can you believe the City didn’t already do this?):

The Risk Management Division focuses on City-wide loss prevention efforts and provides litigation support for the Comptroller’s Early Intervention Units. Most importantly, by reviewing the notices of claim filed with the Office, the Division seeks to identify patterns in claims at an earlier stage in order to implement risk prevention strategies.

After complaining for years about the high cost of the tort system, could the city actually be doing something about it by cleaning up their act (instead of blaming the victims)?

Regarding medical malpractice, the biggest of the cases, the report states about these new risk management units:

The units, handling carefully selected claims, strive to negotiate reasonable and fair settlements prior to extensive discovery and before expensive legal and expert witness fees have accumulated. The units also develop risk management and loss prevention programs from the information gathered through these cases.

Thus, the city’s management of the biggest of the cases is now changing, with a view toward earlier (and cheaper) resolution and preventive efforts for the future. It’s hard to believe this wasn’t done 20 years ago, but better late than never, especially for those that find themselves stuck in some of the city-owned hospitals.

A few of the bullet-pointed facts from the press release:

  • In FY 2006, the costliest personal injury claims category was medical malpractice, which cost the City $155.2 million for 293 cases. In FY 2005, the cost was $145.9 million for 327 cases.
  • 699 medical malpractice claims were filed in FY 2006, the lowest number in the last ten years. In FY 2005, 824 medical malpractice claims were filed. (See the chart on page 16 of the report)
  • The three hospitals for which the City paid the highest total amount for medical malpractice claims in FY 2006 were Kings County ($33.6 million), Elmhurst ($25.7 million), and Woodhull ($15.1 million).
  • Three hospitals (Elmhurst, Kings County and Queens) had increases in the number of medical malpractice claims filed from FY 2005 to FY 2006.
  • 1,351 personal injury motor vehicle accident claims were filed in FY 2006. This represents a decrease from the 1,396 claims filed in FY 2005.
  • In FY 2006, claim filings against the Health and Hospitals Corporation, the Department of Transportation, Department of Buildings, Department of Corrections, and the Department of Environmental Protection were the lowest for each of those agencies in the last ten fiscal years.

(Eric Turkewitz is a personal injury attorney in New York)

 

September 4th, 2007

America’s Newest Law Student – A Coney Island Freak

“Eak the Geek” starts law school today. After 15 years as Coney Island sideshow performer, where he specialized in eating nails, he starts today at Thomas M. Cooley Law School in Michigan, according to this report in AM New York.

Money quote: “I know it sounds weird, but I want to be a freak lawyer …I hope to have a little office in New York and work with the alternative people … all the so-called riff-raff, to give them legal representation that is not judgmental.”

And the good news is that he has a blog. OK, it’s on MySpace, but still, the potential is there for a new and unique window into the world of law.

 

September 4th, 2007

The September 11th Lawsuits And The Problem Of Compensable Grief in NY

As the New York Times reports today, 41 lawsuits are heading for trial this fall resulting from the September 11th attacks. These trials are for those that opted out of the September 11 Victim Compensation Fund — usually because the amounts offered to a certain class of survivors were so low, and no doubt because the wounds were too raw for many to “put a number” on the loss of a loved one so quickly.

Here is the problem in a nutshell: The economic losses of the victims were evaluated with a schedule dependant on earnings that resulted in an average award of $2M. But the non-economic loss was limited to a flat $250,000, plus $100,000 to surviving spouses and children, regardless of whether death came instantly and without warning based on a direct hit by an aircraft, or whether a victim was on board a flight for 45 minutes in fear, or stranded on a high floor of a tower before it collapsed. (The feeling at the time was that this was too difficult a task for 3,000 people, many of whose stories would never come out.)

So those who lost family members who were not earning any money, children, retirees, etc., felt they were treated unfairly and could not, or would not, simply take a small sum without exploring the accountability of numerous entities, such as the airlines, Boeing or security companies that were supposed to be screening passengers. Here is one example of some of the thinking:

The plaintiffs are people like Mike Low, whose 28-year-old daughter, Sara, was a flight attendant on American Airlines Flight 11, the first plane to crash into the World Trade Center. For Mr. Low, it is strange for the airlines to deny that they could have anticipated the attacks, because, he says, his daughter was offered antiterrorist insurance as one of her fringe benefits, and took it.

Now here is the “problem” from the subject heading: Under New York law, grief of the surviving family members is not compensable. Unlike the vast majority of other states, New York remains in the dark ages when it comes to this subject. So a child that has been lost is viewed through the eyes of the law based solely on their earnings (none) and their suffering. But not the grief of the parents or siblings. So while some will always scream “It’s just about the money,” the reality is that for many it is mostly about raw emotion. Like this:

The Cottoms’ lawyers would not say how much Asia might have received from the fund. Mrs. Cottom said she believed they would have received little more than the minimum $250,000 — an amount she found “insulting.”

She lost a daughter, she said, who had her first menstrual period just before the fatal flight, a school trip to Los Angeles. “I took her to Wal-Mart to buy sanitary napkins,” Mrs. Cottom said. “So she was growing up one day and the next day she’s gone.”

Her decision to reject the fund was not hard, she said. “To me, it just smelled of dishonesty. How do you justify, O.K., an 11-year-old is worth $2, but because you’re the pilot of that plane, that’s worth $2 million?”

While the passage of time may have made it easier for some to settle this matter, it is clear that some will want a jury hold various entities accountable for their malfeasance. But while the actual amounts awarded may surpass that which was awarded by the Victim Compensation Fund if claimants can show what their lost family members went through, the awards will not be exceptionally high. And if they are, they will be reduced by the courts afterward.

In an unusual twist, damages will be tried before liability, in the hope I assume, that this will assist with settlement talks.

(Eric Turkewitz is a personal injury attorney in New York. He also represented two claimants before the Victim Compensation Fund)