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New York

New York’s fall in the rankings is in no way a reflection of positive change in the Empire State, but rather due to the immense challenges facing other jurisdictions.  Lawsuit abuse continues to plague New York and bog down the state’s economic growth. Meritless food class actions, American with Disabilities Act lawsuit trolling, third-party litigation financing, and nuclear verdicts only worsened in New York in 2022.

New York City paid out $794.4 million in taxpayer funds to cover judgments and settlements in the 2022 fiscal year, up more than 38% from the previous year ($575.9 million). This exceeds any 12-month high at least since 1998. According to a study by the New York Civil Justice Institute, New York State is ranked number one in lawsuit costs per capita and number of lawyers per capita in the world.

Meanwhile, the legislature did not address the problems plaguing the state’s civil justice system, and instead, lawmakers focused on expanding liability.

 

     

NUCLEAR VERDCITS ON VERGE OF ANOTHER BOOM

New York State continues to see a surging number of nuclear verdicts, obtained by plaintiffs’ lawyers who use manipulation tactics like “reptile theory” and anchoring to drive up awards using New York’s generous liability laws.

Nuclear verdicts are awards at levels above $10 million. With no caps on pain and suffering awards and plenty of jurors with negative opinions about businesses, New York has been a prime target for plaintiffs’ lawyers seeking outrageous verdicts. According to a recent U.S. Chamber study, New York was #3 for the most nuclear verdicts in personal injury and death cases between 2010 and 2019 and #2 for the number of nuclear verdicts per capita.

One of the main drivers of nuclear verdicts is a New York law, CPLR 4016(b), which allows plaintiffs’ lawyers to request that a jury award a specific dollar amount for any element of damages. Plaintiffs’ lawyers use this law to engage in a tactic known as “anchoring,” in which they place an extremely high figure into the jurors’ minds to start as a base dollar amount for a pain and suffering award, which, unlike medical expenses or lost wages, lacks a means of objective measurement. Although New York law confines a plain- tiff’s recovery to “reasonable compensation,” its courts have repeatedly awarded amounts beyond its former de facto cap of $10 million for a pain and suffering award. In 90% of the cases where a plaintiff’s lawyer asked a jury to award more than $20 million, the jury awarded at least the level requested.

In November 2021, a New York appellate court sustained the largest noneconomic damage award in the state’s history. In that instance, a Manhattan jury awarded $59 million against the New York City Department of Education after a high school laboratory experiment went wrong, severely burning a student. This amount was just below the $70 million suggested by the plaintiff’s lawyer. Even after an appellate division reduced the amount of the pain and suffering award to $29 million, it remains the highest pain and suffering award approved by a New York appellate court.

Bad becomes Worse

The state legislature has only added fuel to the fire of nuclear verdicts through the recent passage of the Grieving Families Act (GFA). Introduced by State Senator Brad Hoylman, the Act expands compensable damages in New York’s wrongful death actions. Though state law previously limited recovery to pecuniary losses, plaintiffs’ lawyers will now be able to seek unlimited and subjective damages for grief or anguish. The GFA also expands the eligible recipients of these damages to include “close family members,” including, but not limited to, spouses, domestic partners, children, parents, grandparents, stepparents, and siblings.

Whether a person qualifies as a “close family member” would be an issue to be decided by a jury at trial. In addition, the GFA nearly doubles the statute of limitations for filing lawsuits to blame someone for a per- son’s death. In sum, the GFA means more wrongful death lawsuits, by more people, with larger awards will soon arrive in New York. The changes will surely increase litigation costs, settlement demands, and verdicts.

The GFA is on the verge of becoming law after passing both the New York Senate and Assembly on June 2, 2022. With only the governor’s signature standing between its enactment, Senator Hoylman has urged Governor Kathy Hochul to sign the bill without any modifications. Meanwhile, medical groups and businesses have spoken to Hochul to express their concern about expanded liability. At the time of publication, Governor Hochul had yet to offer her decision on the legislation with pressure from both sides, but she has until December 31 to act.

In sum, the GFA means more wrongful death lawsuits, by more people, with larger awards will soon arrive in New York. The changes will surely increase litigation costs, settlement demands, and verdicts.

NUMBER OF FOOD LAWSUITS CONTINUES TO RISE

Since 2017, food and beverage class action filings have more than tripled in New York. Plaintiffs’ lawyers regularly abuse the vague language of New York’s consumer protection law (GBL § 349), which does not require a plaintiff to demonstrate that the business intentionally misled consumers or that a consumer actually relied on the misrepresentation to her detriment. Although a plaintiff must demonstrate that a practice is “likely to mislead a reasonable consumer acting reasonably under the circumstances,” many New York courts have refused to assume that a reasonable consumer reads the product’s ingredients.

Many of these lawsuits settle for their nuisance value soon after they are filed, providing no benefit to consumers. Those that are certified as class actions provide big paydays to plaintiffs’ lawyers. For example, in Hesse v. Godiva Chocolatier Inc., the U.S. District Court for the Southern District of New York approved a $7.5 million settlement in a certified class action lawsuit that alleged that Godiva Chocolatier’s packaging misled consumers into believing all its chocolate was produced in Belgium. The case settled after the court found that reasonable consumers could view a label touting the location of a company’s founding as representing the products’ continued place of production. The court ultimately approved $2.7 million in fees for the plaintiffs’ lawyers, an amount that was reduced from the $5 million they had sought because consumers only claimed about half of the money set aside to reimburse them for their supposed loss.

Vanilla Vigilante

After years of filings by the “Vanilla Vigilante” – Spencer Sheehan, New York courts have grown impatient with his lawsuits that have often claimed that vanilla-flavored products do not include, or lack a sufficient amount of, pure vanilla. For example, in Parham v. Aldi, a New York federal court dismissed allegations that Aldi misled its consumers about its vanilla almond milk product. The Southern District of New York adopted the report of a magistrate judge who found that a “reasonable consumer would understand the word ‘vanilla’ on the front of the carton to describe how the product tastes, not what it contains, especially in circumstances where the ingredients listed on the product container do not mention vanilla at all.” The court did not allow the plaintiff to amend the complaint, finding any attempt to salvage the claim would be futile. The Eastern District of New York similarly dismissed a lawsuit alleging the same complaint against Dove vanilla ice cream bars. “This case, like the litany of vanilla cases before it, is about flavor and there is no allegation that the ice cream bars do not taste like vanilla,” wrote U.S. District Judge Raymond J. Dearie.

This ruling marked the sixth court in New York to have dismissed vanilla cases with the same reasoning, showing signs of hope for the vanilla-flavored product makers.

Although the number of vanilla cases may be subsiding in New York, Sheehan has his eyes set on other flavorings. From strawberry flavoring in Pop-tarts to onion powder in Yumions, Sheehan has relentlessly filed class action lawsuits targeting other consumer products. Fortunately, judges have applied the same reasoning used in vanilla cases to other flavors, stating that no reasonable consumer would expect the flavor described on the label to necessarily reflect the product’s ingredients.

PREDATORY LAWSUIT LENDING

Third-party litigation financing has flourished in New York City in recent years, generating millions of dollars for finance firms. This industry preys on vulnerable consumers, while making it more difficult to resolve cases for reasonable amounts.

These businesses operate like payday lenders, encouraging individuals with lawsuits to take a relatively small “advance” on their expected settlement. Examples abound of consumers taking a small loan ($350 to $1,200) while a run-of- the-mill claim like a slip-and-fall is pending and then being on the hook to pay the lender five or ten times that amount. These amounts are taken from the plaintiff’s settlement, after payment of the personal injury attorney’s contingency fee. When a settlement is reached, a consumer may have little or nothing left. In one instance, a lawsuit lender has reportedly charged New Yorkers interest rates as high as 124%.

In 2017, the state Attorney General and the Consumer Financial Protection Bureau brought a suit against RD Legal Funding for exploiting 9/11 first responders and NFL concussion victims with interest rates up to 250 percent. Although the initial lawsuit was dismissed by Judge Loretta A. Preska in 2018 due to constitutional defects in the CFPB’s single-director leadership structure, the 2020 U.S. Supreme Court ruling in Seila Law v. CFPB fixed the problematic structure and compelled Judge Preska to reverse her decision in 2022. The CFPB and the Attorney General may now proceed with their litigation from 2017, but there have not been any updates.

Other dangers of litigation funding are illustrated by a scam that played out in New York City. In 2021, a federal grand jury indicted five conspirators – two doctors, two personal injury lawyers, and one litigation funder – on mail- and wire-fraud charges. The defendants were caught recruiting vulnerable individuals, also referred to as “patients” by the perpetrators, to stage trip-and-fall accidents in various areas of New York City. After the patient staged an accident, the two attorneys would file personal injury lawsuits on their behalf against businesses and insurers. The two doctors would then instruct patients to undergo unnecessary medical and chiropractic treatments to maximize the value of their claims. Afterwards, the patients received a mere post-surgical stipend of $1,000 to $1,500.

The litigation funder would offer to pay for patients’ medical and legal costs in exchange for up to 50% interest rate on medical loans and up to 100% on personal loans.

The scam, which began in 2013, generated almost $31 million, according to prosecutors. After pleading guilty to wire fraud conspiracy, the litigation funder agreed to forfeit over $650,000, and awaits sentencing. He may be on the hook to pay as much as $3.9 million in restitution and will likely face prison time up to 20 years. The lawyers and doctors involved will soon go to trial.

In an advertisement for advocacy group Consumers for Fair Legal Funding (CFLF), Reverend Kirsten John Foy shared his story on how people may fall victim to predatory lawsuit lending. During an arrest by New York Police Department (NYPD) officers for alleged trespassing, Foy was left with a fractured kneecap and a torn rotator cuff. Foy sued NYPD for monetary damages, but his inability to work and the need to cover medical bills led him to rely on lawsuit lending. Foy ultimately received an approximately $225,000 settlement from NYPD. The amount of money that Foy saw was less than half of the actual settlement – about $75,000 after repaying his two loans.

According to CFLF, there are many like Foy who fall victim to these practices. For that reason, CFLF is pushing lawmakers for greater regulation of the lawsuit lending industry.

Although State Senator Anna Kaplan has proposed two bipartisan bills to rein in these abuses by setting a ceiling on interest rates and tracking litigation funding, the industry’s lobbying power prevents the legislation from moving out of committee. One of the bills, named New York Consumer Litigation Funding Act, aims to limit the litigation funding company’s control over the litigation and require these companies to disclose in exact terms the maximum amount the consumer may have to pay.

In addition to subjecting lawsuit lending to safeguards similar to other consumer loans, New York should ensure that the court and all parties are aware of such arrangements. Transparency can expose predatory lending practices and also ensure that parties are aware that a third party may be influencing the litigation or impeding the ability to reach a settlement. Lawsuit lending can drive up settlement demands (as plaintiffs must consider not only how much of the settlement will go to his or her attorney, but also to the lawsuit lender) and make it more difficult to reasonably resolve cases.

Unlike some jurisdictions, New York does not require litigants to disclose the existence of a litigation funding agreement. Although a funding agreement could potentially be discoverable if it is relevant to the case and not otherwise protected from disclosure, thus far, New York courts presented with the issue have found funding agreements irrelevant and undiscoverable.

NEW YORK RISES UP THE RANKS OF WORST STATES FOR DOCTORS

New York is now the second worst state for doctors, after previously coming in at No. 3, according to an annual ranking by WalletHub. The state also ranks first in two categories: highest malpractice award payout amounts per capita and most expensive annual malpractice liability insurance. The average payout of a neck/back injury rose from $3.8 million in 2015 to $6.8 million in 2019. During the same time period, a brain injury award increased by 560 percent from $5 million to $27 million.

One reason New York is home to so many medical liability cases is because it is one of 15 states that allows unlimited damage awards. New York also has no rules regarding minimum expert qualifications, making it easier for plaintiffs’ lawyers to bring in unqualified witnesses to testify against doctors.

State lawmakers are pushing for a bill that will make bringing medical malpractice cases even more lucrative for personal injury lawyers. Current New York law protects patients with a sliding scale for the percentage an attorney can take as a contingency fee after a successful medical malpractice case. The percentage declines as the total amount of settlement or award increases, starting with 30 percent on the first $250,000 down to 10 percent of any amount over $1.25 million.

S.9421 sponsored by Assemblyman Charles Lavine and Senator Jamaal Bailey, would alter the standard for a court to allow an attorney to receive a fee that exceeds the cap. Rather than require “extraordinary circumstances,” it allows a court to grant a higher fee based on the performance of the attorney, results of the case, and consent of the client (though not required). The bill does not require the attorney

to submit the number of hours spent working on the case. Lawsuit Reform Alliance of New York Director Tom Stebbins stated, “These bills have nothing to do with justice and everything to do with enriching trial lawyer sharks as they circle the injured and vulnerable.”

The shift in contingency fees will not only affect the plaintiff, but the defending doctors and health care workers. With more medical malpractice lawyers who seek to maximize profit, New York’s malpractice liability insurance and award payout will increase even more.

RETROACTIVE COVID-19 LIABILITY

In the early days of the COVID-19 pandemic, the New York legislature enacted the Emergency Disaster Treatment Protection Act (EDTPA), which provided immunity to those who provided health care services in good faith during the pandemic, absent gross negligence, reckless conduct, or willful or intentional misconduct. The legislature repealed EDTPA on April 6, 2021, however, when then-Governor Cuomo signed Senate Bill S5177.

Days later, a plaintiff filed a medical malpractice lawsuit against Elderwood at Amherst, which provides nursing home care in western New York. At issue is whether the repeal of EDTPA retroactively eliminates the liability protection extended to health care facilities and professionals. The Erie County Supreme Court decided that the repeal is not retroactive and dismissed the plaintiff’s complaint in its entirety. The court determined that the New York bill, as any other legislation, is presumed to apply prospectively absent clear legislative intent otherwise and no such showing was made in this case. By ruling on this ground, the court did not need to address the constitutional due process implications of retroactively eliminating protections that healthcare providers relied upon during the pandemic.

The plaintiff appealed the dismissal and the case is currently pending in the Appellate Division, Fourth Department. ATRA filed an amicus brief alongside others to support the trial court’s order. As the brief explains, the presumption against retroactivity is rooted in the elementary notions of fairness, as it prevents a legislature from exercising arbitrary power to violate due process.

GROUND ZERO FOR ‘AMERICANS WITH DISABILITIES ACT’ LAWSUIT ABUSE

In recent years, New York has seen a surge in Americans with Disabilities Act (ADA) lawsuits filed in federal courts. Specifically, some plaintiffs’ lawyers have focused on lawsuits claiming that websites are not sufficiently accessible to those with disabilities. Few of these lawsuits are filed by plaintiffs who face real injury from lack of access, and most of these cases are filed by firms and serial plaintiffs who make vague and conclusory allegations about the inaccessibility of websites to those who are visually impaired.

While traditional ADA accessibility lawsuits focus on physical barriers in brick-and-mortar locations, the drastic increase in ADA website accessibility cases began in 2017, when New York courts decided that websites qualify as a “place of public accommodation” under the ADA; and therefore, must comply with its statutory requirements. Since these decisions, New York courts have been flooded with ADA website accessibility cases.

In 2021, 2,074 of the 2,895 website accessibility lawsuits nationwide were filed in New York’s federal courts, which amounted to 71% of the litigation. California placed a distant second with only 359 filings during the same period. With its broad interpretation of “place of public accommodation,” New York’s federal courts have been targeted by serial plaintiffs who file countless lawsuits through firms like Stein Saks, PLLC and Cohen & Mizrahi LLP.

Second Circuit Intervenes in No Injury ADA Lawsuits

Even if such claims are viable, the federal appellate court overseeing New York has made clear that ADA plaintiffs, like others, must show they experienced an actual injury to pursue a website accessibility claim. In Harty v. West Point Realty, a disabled Florida resident sued a hotel in a New York federal court for having a website with allegedly insufficient accessibility information required by the ADA. In March 2022, the Second Circuit upheld the district court’s dismissal of the lawsuit because the plaintiff asserted no plans to actually visit the Holiday Inn Express West Point; and therefore, his ability to travel was not hampered by the inaccessibility of the hotel’s website. The Second Circuit ruled that plaintiffs must prove that they suffered a “concrete” and “particularized” injury from being deprived of information on a website to establish the Article III standing that is constitutionally required to maintain an action in federal court.

Three months later, the Second Circuit again intervened to reject no-injury ADA lawsuits. In that instance, the appellate court affirmed a district court’s order dismissing five ADA accessibility lawsuits brought against retailers, alleging that they failed to offer gift cards in Braille. Southern District of New York Judge Gregory Howard Woods found that the plaintiffs had filed a generic complaint that failed to show standing and that, even if they experienced an injury, the ADA regulates places not products.

In affirming the plaintiffs’ lack of standing, the Second Circuit called out the “Plaintiffs’ transparent cut- and-paste and fill-in-the-blank pleadings,” and observed that the four plaintiffs before the court had filed 81 of 200 “essentially carbon-copy complaints” in just a three-month period. The complaints even included the same typos. The Second Circuit found the plaintiffs’ naked assertions of injury stemming from the inability to purchase braille gift cards implausible.

Despite a few positive court decisions, plaintiffs’ lawyers and serial plaintiffs are undeterred in their efforts and continue to file abusive ADA lawsuits at an alarming rate. Small businesses across the state are one frivolous lawsuit away from being forced to close their doors as many still struggle to regain their footing following COVID-19 shutdowns.

ASBESTOS LITIGATION

Courts nationwide have experienced a significant decrease in the number of asbestos complaints filed, amounting to a 16 percent drop between 2017 to 2021. Although New York City mirrored this trend with 19.4 percent fewer asbestos filings in 2021 than the previous year, its courts continue to serve as the third most popular jurisdiction for asbestos litigation with 249 cases filed that year. Only Madison and St. Clair counties in Illinois host more. In a 2022 mid-year report, New York retained its ranking with the third most asbestos filings and a 11% increase in cases filed than the previous year.

Over-Naming Defendants

A main cause of concern in New York asbestos litigation in recent years has been the over-naming of businesses as defendants. Plaintiffs’ lawyers name numerous defendants without any proof that their client was exposed to a particular company’s products and pressure these companies to settle. On average, plaintiffs’ lawyers named 48 companies as defendants in each complaint filed in New York’s asbestos docket in 2021 and sometimes significantly more. This practice wastes taxpayer dollars, congests the court system, and delays plaintiffs’ compensation.

New York lacks a proper gatekeeping function to prevent plaintiffs’ lawyers from over naming defendants. Senator Pete Harckham introduced S.7810 in January 2022, which would require plaintiffs’ lawyers, when filing an asbestos complaint, to submit an information form identifying the basis for the suit against each defendant. The bill remains stagnant in the Senate Judiciary Committee.

Proof of Causation Matters

In an April 2022 decision, New York’s highest court issued a ruling that will make it less likely that companies that are not responsible for a plaintiff’s asbestos-related medical condition will nevertheless be held liable or feel compelled to settle.

In Nemeth v. Brenntag North America, the Court of Appeals found that the plaintiff’s expert witnesses had not shown that the plaintiff contracted mesothelioma as a result of exposure to talcum powder allegedly tainted with asbestos, rather than her exposure to numerous other asbestos-containing products made by defendants who had settled before trial. This testimony was insufficient, the court ruled, because the experts failed to establish that the plaintiff was actually exposed to a level of asbestos from the remaining defendant’s product that could have caused her illness. The court emphasized that, in any toxic exposure case, “conclusory assertions of causation” are not enough. As a result, the appellate court reversed a $16.5 million verdict.

Following the Nemeth decision, New York experienced a wave of dismissals as the Appellate Division applied this causation standard. Each case cited Nemeth and required a showing beyond mere exposure to products with asbestos to meet the causation burden.

For example, in Dyer v. American Billtrite, the plaintiff claimed that the decedent’s cancer was caused by his exposure to asbestos while cutting vinyl floor tiles. Although the plaintiff’s expert witness testified that there was a “dangerous concentration” of asbestos released during this work, the Appellate Division found he failed to show that those levels are known to cause lung cancer. Simply saying that an amount is “dangerous” or “excessive” is not enough to establish causation. The Appellate Division reached a similar result in Grunert v. American Biltrite. In that instance, the plaintiff did not show that he actually worked with Amtico tile, as opposed to five similar brands, and, even if he did, that level of exposure to asbestos from working with the tile would have been insufficient to cause cancer.

Preventing Forum Shopping

The New York Court of Appeals also took steps to prevent out-of-state state asbestos cases from over- whelming New York courts by raising the standard to establish personal jurisdiction.

In June 2022, the Court held that plaintiffs bear the burden of establishing personal jurisdiction using a two-pronged jurisdictional inquiry – the first inquiry is whether a defendant conducted sufficient activities to have transacted business within the state; and the second inquiry is whether plaintiff’s claim arises from the transactions. In that instance, the court dismissed a case filed in New York arising from exposure to asbestos during military service in California against a valve manufacturer that principally operated in Massachusetts and Texas. The claimed link to New York was that the company sold valves to a New York company for use in their boilers. The ruling prevents out-of-state plaintiffs from crowding New York courts with asbestos lawsuits that originate in other states.

Following these positive developments, it remains to be seen whether they will have a meaningful impact and prevent the types of abuses that have been so prevalent in New York’s asbestos litigation.

UNIQUE SCAFFOLD LAW CONTINUES TO BURDEN STATE ECONOMY

New York City is the second most expensive city to live in worldwide. One root cause of the high cost of living in New York is excessive construction costs due in part to the state’s “Scaffold Law.” Over a century ago, the state legislature enacted the Scaffold Law to protect construction workers who helped build the concrete jungle known as New York City today. After Illinois repealed a similar law in 1995, New York is the only state that maintains this form of absolute liability over contractors.

Written in New York Labor Law’s section 240/241, the Scaffold Law assigns strict liability for any gravity-related injuries. Contractors and employers are virtually defenseless from lawsuits regardless of the workers’ negligence or recklessness. Eliminating the strict liability component would create over 27,000 new jobs and 12,600 additional housing units.

The increased risk of liability has led to a 300 percent increase in general liability insurance rates. New York School Boards Association estimates the Scaffold Law costs Upstate New York $200 million every year while the School Construction Authority paid $240 million in insurance costs alone despite an excel- lent safety record. The Scaffold Law costs approximately $785 million in public dollars every year and is adding hundreds of millions of dollars to construction projects like the Hudson Gateway project and Tappan Zee bridge reconstruction.

An interesting statistic indicates that frequency of injuries on construction projects in New York has decreased, but the number of Scaffold Law cases has nonetheless increased by 500 percent since 1990. This indicates that the Scaffold Law no longer serves the intended purpose of protecting workers but is rather utilized by plaintiffs’ lawyers to inflate non-serious injury claims and reap the benefits of absolute liability.

There is one recent piece of good news. In April 2022, the New York Court of Appeals reined in misuse of the statute when it ruled in Cutaia v. Board of Mgrs. that an “accident alone” involving a fall is insufficient to establish a Scaffold Law violation. There must be at least some evidence an employer’s failure to provide an additional safety device or lack of a sufficient ladder caused the fall.

NEW YORK AT THE FOREFRONT OF EAST COAST CLIMATE CHANGE LITIGATION

Like its west coast counterpart, California, New York City continues to be on the forefront of regulation through litigation with respect to U.S. energy policy on climate change on the East Coast.

After New York lost its lawsuit against Exxon and other energy producers in 2021, Attorney General Letitia James immediately filed another lawsuit against the same companies under a different legal theory. Instead of arguing that state courts have the authority to advance national energy policies, New York City contends that the defendants violated the City’s Consumer Protection Law by misleadingly promoting their products as beneficial in addressing climate change and marketing their companies as environmentally responsible. Upon both parties’ agreement, the New York City case is on hold as the U.S. Supreme Court decides whether to review a similar case that would have major implications on the future of climate change litigation.

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