May 18th, 2016

Joan Rivers and New York’s Dreadful Wrongful Death Law

Joan Rivers

My Monday post regarding the settlement of the Joan Rivers wrongful death case was meant to be a two-parter. Part one to laud the lawyers and part two to write about the injustices of our current (and ancient) wrongful death statute that dates to 1847.

New York used to be progressive, with the first in the nation wrongful death law that was designed to protect injured railroad workers. There was no common law claim for wrongful death. Since an injured worker needed to be compensated, perhaps for life, but a dead one was worthless in the eyes of the law, saving the life of the worker was, ahem, detrimental to the profits of the railroad business.

In fact, not only wasn’t there a wrongful death cause of action, but even a claim for personal injuries (the pain before the death) did not survive the death of the injured person (or of the tortfeasor). It just evaporated. It was better (for the railroads) to kill workers than injure them.

Thus, the 1847 legislation. (You can read the history of it all in Grant v. Guidotti.)

But while once at the forefront of progress, New York is now a laggard in the law’s development. It has not been updated in 170 years. The law provided back then, and continues today, that the survivors may only collect “pecuniary” loss, basically meaning the wages that others depended on. And if your family member that was killed by the negligent conduct was not the family breadwinner, but happened to be an infant, homemaker or retired?

Sorry, Charlie. Children, retired seniors and homemakers have no “value” to the New York Legislature. And disaster-struck families have been told by lawyers, for generations now, that they won’t get to hold the tortfeasors responsible for their grief. They are on their own. You can blame the Leg.

Before I had a chance to fully write that piece though, Marc Dittenhoefer dropped a long comment into that first post on that subject, dealing with the Joan Rivers case. So I just asked Ditt to expand on it a bit and presto, a new guest post on the very topic I wanted to cover.

Take it away Ditt:
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Marc Dittenhoefer

I applaud the outcome in the Joan Rivers case and join in sending kudos to Ben Rubinowitz and his team for the excellent job they did on all counts. However, results like this one always give me pause in that they highlight a great inequity that still bedevils our system.

Joan Rivers endured no conscious pain and suffering, had no impending fear of death or disaster, was the legal and obligatory supporter of no one, and was worth tens – perhaps scores – of millions of dollars at the time of her death. By traditional NYS legal measures of recovery, this case should have limited value. But Joan Rivers was rich, famous, powerful, beloved and white. Ka-Ching!

Now let’s think of an unheralded Ms. Gonzalez, or Johnson, or Yee; with several children dependent upon her for support; with days, weeks even months or years of conscious pain and suffering; and with a dread of impending doom all about her due to someone else’s fault in causing her death. THAT case doesn’t settle so fast, nor for anywhere near sum likely received here.

The reason? In New York, wrongful death damages are measured by two things:

(1) conscious dread, pain and suffering of the decedent, and

(2) monetary loss to those legally dependent upon the decedent for support.

Joan Rivers went to sleep fully well expecting to wake up shortly, felt no pain and suffered not at all, and left behind as an only survivor a fully grown, emancipated and high-earning woman in her own right who stands to inherit generously from her mom’s Estate. But for her fame and public profile, the measure of damages here would be negligible by current legal standards.

But an unknown single mother of 3 with no special skills or educational advantages, earning modest wages and perhaps even lingering in a death-spiral of pain for months on end? Who also happens to be the family matriarch giving love and guidance to those within her household?

Defendants would be in no particular rush – nor in the grips of any particular generosity – to amicably resolve that case to the benefit of the motherless children in dire need of whatever recovery their lawsuit might hold. Those moms do not make the headlines: no insurer seeks to avoid bad publicity by paying quickly or generously for them. While the Rivers’ settlement is celebrated by the tabloids with speculation of an 8-figure sum, the lesser recoveries of the “ordinary” litigants are decried as “runaway” results when the press pays attention to them at all. Yet the self-same interest of improved public health is served in both instances.

Fame has its privileges, all right. But NY’s laws need to recognize that:

(1) the current measure for damages in a wrongful death scenario is woefully dysfunctional and out of date, and

(2) “regular” folks need to be afforded the same quality of justice that the rich and famous get, even if their cases do not alway make the papers.

“Wrongful Death” reform is long overdue.

May 6th, 2016

Starbucks Iced Coffee Lawsuit – A Rebuttal

The one. The only. Marc Dittenhoefer

On Wednesday, I ran a parody of the Starbucks class action lawsuit regarding too much ice in the iced coffee. And yesterday I posted my explanation as to why I did it: bad suits hurt good clients.

Now today comes a rebuttal from one of my friends, Marc Dittenhoefer. Take it away Ditt…..

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Ok, so let’s get some obviousness out of the way first so we don’t have to waste any more time on it. Of course the “What, there’s Ice in my Iced Coffee!” lawsuit is a bit of a dopey exercise, more than a bit of bad PR, and the latest in a long, long line of easy pickings for satirists, comedians, anti-civil-justice advocates and for dinner table conversations everywhere.

I get that. As a lawyer who has made his living for 40+ years representing harmed people in legitimate lawsuits, these sort of headlines rankle me, too, and do have their effects upon the judges and jury pools that I, too, must practice before. I was no happier than Brother Turkewitz to see this latest juridical jalopy come down the pike. “Whoa Nellie………not, again!!!

Nevertheless, when one thinks about it a bit there are a few legitimate points behind this lawsuit: ones that we should be spending a moment or two on before we jettison this plaintiff and move on to our next exercise in righteous indignation.

Coffee is coffee and ice is ice. One costs money – quite a bit it of it in places such as Starbucks, it turns out – and the other usually is at nominal cost or given free with a purchase. The reason and rationale for why some shops charge the public what they do for a Cup of Joe folks can get for under a buck at a diner is that there IS a difference: you are paying for a comparable amount of beverage which is more expensive to buy and brew than the diner’s.

When someone plunks down $ 6.50 for a “venti” iced Blarfaccino, one has a (I hesitate to use such a lofty word in such prosaic a circumstance) right to expect the comparable 8, 12 or 16 ounces one gets in the diner version of iced coffee from ’round the corner, especially since the sizes of the various servings are posted, advertised and charged for by the Blarfaccino store itself.

It is no different than a can of soda, quart of milk or gallon of gas: what is listed on the signage is what you should receive for your money. But what if your can has only 7.9 ounces of soda, your milk a fraction less than a quart, your gas a tad shy of a gallon?

To you, the individual Buyer it means perhaps not a whole lot: it might even be healthier for you over all – at least in terms of the coffee or the soda. But to the Seller ? By chintzing a bit on each of a hundred customers, all of a sudden you can sell 110 coffees from the ingredients that used to net 100.

That’s a profit of 10 coffees that have been “stolen” from the clientele. Or 2 TVs falling off every truck; three Mercedes’ off every shipload. Sooner or later, this adds up to some real money from out of the pockets of the unsuspecting and into the till of an already multi-billion dollar corporation. Not so silly any more, is it?

These scams have been done in business for as long as there has been business, and one of the valuable functions that government provides is to guard against such things, via regulation, inspection, quality control and mechanisms for enforcement and restitution. Thus is the “Class Action” invented.

Should a business — say a financial institution — devise a computer program that would take one cent each month from the account of each of its customers and automatically deposit it into the business’ operating account, that would be a theft. Yet most customers would not ever notice it, much less be willing to file a Police Report over it, and no DA would start a criminal action for anyone’s annualized loss of 12 cents. Multiply that amount however by a million customers, and you all of a sudden have a major revenue stream on your hands – or in your pocket.

An old riddle here is instructive: what would you rather have for your birthday, one million bucks or one penny doubled each day for a month? If you took the penny deal, you made the better bargain by far.

So yeah, the suit is dopey, but only in its poor choice of forum. This matter should be handled regulatorily by making Starbucks devise a way to ensure that the proper amount of paid-for coffee is served in their iced offerings. After all, the company that can invent a machine that grinds, brews, and serves up skatey-eight different types of coffee in 3 or more sizes each can certainly find a way to stock themselves with cups large enough to accommodate the proper amount of beverage WITH ice. It ain’t brain surgery – it’s just right. And this lawsuit says so.

As to the rest of it, considering Stella Liebeck’s case against McDonald’s I am convinced that the insurance, big business and and anti-consumer forces are not sitting idly by waiting for things like this to latch onto to further their PR campaigns. They are at it 24/7/365. This case might give them something to work with, true, but it also is one that highlights an area of abuse that could be redirected in a positive, pro-consumer way.

We should be full-throated in our support, not necessarily of the suit but of the concept that a buyer should get what they pay for, and that sometimes recourse is needed when that does not happen. In this regard – although I am most certainly not of, by or for the “Tea Party” – they have a point. Free and unfettered access to the Courts to air grievances and correct wrongs is as much of a doctrinal touchstone as anything for the “Tea Party”. Why not for coffee ?

December 11th, 2009

NYC’s Top Lawyer Gets Reamed For Inefficiency (By Both Bench and Bar)

You just don’t often see a city’s top lawyer get shot down so hard and so fast as we did here in New York this week. Shortly after writing a column for the New York Law Journal on inefficiencies in the court system, an appellate court struck the city’s answer in a case they were defending. The court’s extraordinary action was taken due to a decade of delay by the city’s law department in furnishing documents to the plaintiff. This was followed by a blistering letter in the paper from two of this town’s top personal injury attorneys regarding more inefficiencies by the city.

It started Monday, December 7th, when city Corporation Counsel Michael Cardozo published his version of a “Top 10” list related to court reform. The column focused its attention on our underpaid judiciary, lambasting them with a screed focusing on a lack of efficiency from the bench with respect to motions and trials. He suggested performance goals for the judges, focused on delayed decision making, more status reports from the judges, more evaluations of judges and moving judges to understaffed parts.

Response was swift, perhaps swifter than he ever imagined, and is an instant classic with respect to throwing stones from a glass house.

Just one day later, the Appellate Division Second Department decided Byam v. City of New York, lambasting Cardozo’s office in a false arrest and malicious prosecution case for failing to produce records that were first requested in 1997. The court, in reviewing the numerous attempts to get the documents, finally struck the answer of the city as all other sanctions would have been insufficient, saying that their “willful and contumacious conduct can be inferred from their repeated failures, over an extended period of time, to comply with the discovery orders, together with the inadequate, inconsistent, and unsupported excuses for those failures to disclose.”

And Cardozo was trying to call the judiciary inefficient?

That was followed yesterday, December 10th, with a letter in the New York Law Journal that eviscerated Cardozo and his office. The letter, by Marc Dittenhoefer and Helene Blank (both well-known and well-respected among bench and bar) is reprinted here with their permission, in its entirety.

While one may believe that Dittenhofer and Blank have taken great risks by having this letter published, given the substantial amount of work they do where the city is the defendant and the risk of pay-back from that office, I agree with them that such inefficiencies must be disclosed. The idea of the city’s top lawyer throwing stones at the judiciary while he can’t clean up his own house is one that can not be ignored.
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As attorneys practicing in the courts for over 30 years, we were eager to read what Michael Cardozo, our three-term Corporation Counsel had to say about the courts because, after all, one of the biggest problems we encounter on a regular basis is dealing with the Corporation Counsel’s office on almost every case in which the city is involved. We are not alone in our experiences. The court system and all litigants — plaintiffs or defendants, petitioners or respondents — have to regularly deal with the inefficient office. That is not to say that many of the women and men who toil there are not doing an excellent job, but the bureaucracy of the office
is designed to hamper, delay, sidetrack and stop the smooth and efficient progress of any lawsuit in which the city is involved. Instead, what we read was no less than a thinly veiled assault on our hard working judges and another plea for “merit selection” over election.

Mr. Cardozo would prefer that his boss have the ability to appoint all the members of the bench who will then preside over the cases that he litigates. Fortunately, that is unlikely to happen. The U.S. Supreme Court has spoken and no matter how imperfect our system is, it is in our minds preferable to one person selecting the man or woman who will ultimately decide a client’s fate.

We have seen both the good and bad in both systems and no one who practices daily in our courts believes that merit selection is only done on the merits. We were disappointed that Mr. Cardozo didn’t take the time to inform the bench and the bar of what changes he is going to make in his third term to improve his own house. Because no matter how he views Office of Court Administration, at the beginning and end of the day the elected judges are accountable to the people who elected them, but his office is accountable directly to him. We speak from experience as plaintiff’s attorneys, defendant’s attorneys and court appointed fiduciaries. Ask any judge how easy it is to get the city to comply with a court order.

While without question there have been great strides at the city’s law department to operate more efficiently, it is still impossible to obtain even the most prosaic information from the city’s counsel in the course of legitimate litigation including the names of city contractors who are responsible to both the plaintiff and the city, due to the deliberate, arcane and byzantine methods it uses to catalogue same, apparently designed to frustrate identification and retrieval.

The inordinate delay caused by the city’s presence in a case prompts plaintiff’s counsel to do anything to avoid having to sue the city, which might very well have been the plan in the first instance. Yet, however satisfying such a misdirection might be to the winning hand, such is hardly the proper way for a city to treat its citizenry. And this is not yet to mention the eve of trial witness revelations that happen constantly.

Perhaps Mr. Cardozo, who in his article talks about removing matters from the courts, can explain why the city will not participate as a litigant in mediation let alone arbitration. Is there a 60-day reporting system for his attorneys? Are they being held accountable for failing to comply with court orders and for the repercussions that follow? Are his attorneys being evaluated on their performances? Or does he just accept as we are told to accept that the volume of cases, lack of sufficient staffing and budgetary constraints make it impossible to be better than they are?

We were offended by Mr. Cardozo’s article, offended for the judges who confront unmanageable caseloads, insufficient staffing, unreal expectations from OCA and Mr. Cardozo, and who suffer from low morale because they haven’t had a pay increase in more than a decade.

We were also offended because the article was written by the three-term Corporation Counsel whose own house needs serious re-ordering. Since Mr. Cardozo has the ability to impact the way his office operates, we sincerely hope his third term is spent getting his own office better prepared. Perhaps if that’s done, just once, when a litigant asks for the information to which s/he is entitled, they can get it so they might avoid litigation and not have to sue the city to keep the statute of limitations from running out. That would be a great thing to accomplish indeed.

Helene E. Blank
Marc M. Dittenhoefer
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Full disclosure: I know both Blank and Dittenhoefer and frequently litigate against the city’s Corporation Counsel.