On December 21, 2024, Governor Kathy Hochul of New York vetoed, for a third time, the Grieving Families Act (“Act”), a significant bipartisan legislative proposal in New York aimed at reforming the state’s wrongful death statute, which has remained largely unchanged since 1847. The Act’s provisions, including expanding recoverable damages, extending the statute of limitations, and broadening the definition of beneficiaries, have significant implications on civil law in New York, including asbestos litigation.

Current Statutory Framework

Pursuant to N.Y. Estates, Powers & Trusts Law section 5-4.1, a wrongful death action must be initiated within two years of the Decedent’s death by a child, parent, spouse, or personal representative of the decedent’s estate. The wrongful death action seeks to compensate the survivors for economic or pecuniary losses resulting from the death. Recoverable damages include medical and funeral expenses and, for surviving children, the value of parental guidance, nurturing, and care. The current law does not permit recovery for non-economic damages such as loss of consortium for spouses and other family members, pain and suffering, emotional anguish or grief, or loss of companionship. The objective nature of the law means that it focuses on tangible economic losses rather than subjective emotional impacts.

Survivors can also file a survival action, brought under N.Y. CPLR section 214(5), for the damages associated with the personal injuries the deceased suffered from the time of injury until their death (in other words, it allows the decedent’s estate to pursue claims that the decedent could have pursued if they had survived, including loss of consortium for a surviving spouse from the date of the injury until death).

Key Features of the Grieving Families Act and Implications for Asbestos Cases

In 2022, the New York Legislature drafted the Grieving Families Act to expand the scope of compensation in wrongful death lawsuits. The first version of the Act sought to address three particular issues:

• Compensating family members for non-economic damages with no cap on said damages, such as emotional and psychological loss (e.g., grief, loss of companionship, and mental anguish. Of note, the Act noted that its provisions applied retroactively to all pending wrongful death actions;
• Expanding the category of beneficiaries in wrongful death claims, allowing “close family members,” to file a claim;
• Increasing the statute of limitations from two years to three and a half years.

The first version of the Act was vetoed by Governor Hochul on January 30, 2023. She noted that by failing to define “close family members”, virtually anyone related to the Decedent could file a claim, leaving the finder of fact with the burden to determine whether, in fact, the suggested plaintiff was close enough to warrant compensation. She also pointed to the dangers of the retroactivity clause, vastly larger potential damages values, and that the Act was missing “a serious evaluation of the impact of these massive changes on the economy, small businesses, individuals, and the state’s complex healthcare system.”

Undeterred, the New York Legislature introduced a revised Act in 2023 with a narrower definition of “close family member”. Governor Hochul vetoed the Act for second time on December 29, 2023 for similar reasons.

The Act was reintroduced for a third time in February 2024. Again, minor changes were made, including changing the retroactivity effect of the statute to January 2021. The Governor vetoed the Act for a third time on December 21, 2024. In her veto message, she noted her support for expanding the categories of damages available in wrongful death actions (i.e., allocating recovery for grief and anguish), but noted that these changes as proposed in the Act would likely cause negative consequences that remained unaddressed.

The asbestos litigation community, in particular, has closely monitored the Act due to its potential to reshape the landscape of wrongful death claims in the state. The Act’s provisions would allow for higher damages in wrongful death cases, including compensation for emotional anguish and loss of companionship, which are currently not recoverable. Moreover, the New York court system, already overburdened due to a shortage of judges (among other issues), will face an influx of litigation should an expansive category of plaintiffs be suddenly allowed to file lawsuits. Additionally, expanding the statute of limitations period, since diseases such as mesothelioma often have long latency periods and complex causation issues, could allow more claims to proceed.

What’s Next?

The repeated vetoes by Governor Hochul underscore the complexity of reforming the wrongful death statute in New York and has sparked significant debate. The possibility of future legislative attempts to pass a revised version of the Act or an override of the Governor’s veto cannot be ruled out. In the meantime, the ongoing debate highlights the delicate balance between grieving families and the economic interest of the state that the Legislature must recognize in order to procure the Governor’s support.