New York Wrongful Death Lawyer Blog

A Suffolk Superior Court (Boston) jury awarded $71 million in compensatory damages and $81 million in punitive damages, in a wrongful death case decided in mid-December.

The son and the estate of Marie Evans sued Lorillard, Inc., manufacturer of Newport cigarettes, claiming that the company seduced Ms. Evans into a lifelong addiction to smoking by giving out free samples, a part of a broader marketing campaign that was aimed at youngsters in black neighborhoods. She died of lung cancer in 2002.

Similar to the facts from my last blog entry First Ever Wrongful Death Settlement for Smokeless Tobacco, where the decedent began using smokeless tobacco at age 13, Ms. Evans began smoking at the same age.

The jury found that Lorillard acted with negligence, in breach of trust and in a wanton and reckless manner.

Aside from the size of the jury award for both compensatory and punitive damages, this case was novel for its challenge to the marketing and advertising of cigarettes to youngsters.

William Evans, decedent's son, graduated from Harvard Law School

Shortly after the deadly blast that killed 29 coal miners at Massey Energy Co. facility in West Virginia, the company's board met by phone and agreed to offer each deceased miner's family the sum of $3 million.

That amount, it was thought, would help the miner's dependents financially, and help to stave off a wave of anticipated litigation over the cause of the explosion.

The Massey offer was greater than the average wrongful death settlement, which was $1.8 million in 2009. It is less, however, than the average jury verdict for wrongful death, $7.8 million for the same year.

It has become standard operating procedure for large companies to offer settlements in cases of workers killed on the job, for example, in the following cases involving explosions: the 11 workers on the BP oil rig; the 4 killed on the California gas line; and the 6 killed in the Connecticut power plant blast.

By early December, nine months after the offer had been made, only seven of the twenty-nine families had accepted it. Only three of those had been finalized by court action. Clearly the lure of certainty was not a decisive factor in the decision making process.

Some relatives did not appreciate the assigning of a dollar value to their kin.

Some just want their day in court.

Others have retained attorneys, and are waiting for the result of state and federal investigations into the cause(s) of the blast. If Massey Energy Co. was blamed for intentionally or recklessly causing it, punitive damages may become part of the damage equation.

The families can afford to take their time in consideration of the settlement offer. Widows are receiving miner's full salaries, from Massey, for the rest of their lives, or until they remarry. Medical benefits, child care expense and in-state college scholarship money is also available.

The material used for this entry is from the Wall Street Journal Dead Miners' Kin Wrestle With Choice to Settle or Sue, by Kris Maher.

Ford Motor Company and the family of Brian Cole settled the wrongful death/product liability case after the huge jury verdict was awarded at trial. The settlement amount was not disclosed.

Mr. Cole, then 22 years old, was drafted by the New York Mets, and early indications were that he would develop into a stellar professional athlete. He died on March 31, 2001, when a tire blow out resulted in a rollover accident where he was ejected from the Ford Explorer.

Through their attorneys, Cole's family alleged that he died because a design defect in the seat belt caused it to fail, and also, that Ford Explorers had a tendency to roll over, particularly when a tire blow out occurred.

A settlement protects Ford from potentially greater liability for punitive damages which sometimes outstrip the compensatory damages awarded.

Ford has spent huge sums settling Explorer roll over cases. The National Traffic Safety Administration estimates that nearly 4 of 10 fatal automobile accidents involve SUV roll overs.

Lawyers for the families of the two young Hungarian tourists who died after the collision between the duck-boat and a garbage barge have filed suit in PA state court, against both the tour operator and the tugboat company.

Attorneys claim that the deaths were senseless and preventable. Punitive damages are being sought.

I would guess that punitive damages may apply in this case, given the many safety measures that appear to have been violated by both vessels:

• a non-working airhorn on the duck boat;
• attorneys charge that the dead were trapped in the boat by the canopy of the duck boat; an NTSB report on a 1999 duck boat accident said that canopies on the amphibious vessels were a safety threat and should be removed;
• no look-out posted on the barge (violation of statute);
• attorneys received an anonymous tip, that at the time of the collision, the tug's helmsman had turned the volume of the vessel's marine radio down so he could talk on his cell phone; the duck boat's distress message went unheard.

Perhaps criminal charges will be considered by authorities concerning the helmsmans' lack of concern for safety on the river.

Punitive damages may be awarded in a variety of legal causes, including wrongful death cases. The purpose of punitive damages is to punish the defendant, and to deter repetition of the same conduct.

Under New York law, punitive damages may be awarded where a defendant's conduct, even though unintentional is "grossly negligent, or wanton or so reckless as to amount to a conscious disregard of the rights of others", as contained in the Court of Appeals case Home Insurance Company v. American Home Products Corp., decided in 1990.

A recent wrongful death blog entry Fatal Gunshot to Head: Part 2 - $7M Punitive Damages Award Reduced , mentioned a jury award of punitive damages being adjusted by an appeals court, where a policeman's gun went off, killing a man unintentionally, but where the jury found the force used "excessive" and his conduct to be "wanton, reckless or malicious".

A 2007 appeals case, Guariglia v. Price Chopper and Schady, serves as another illustration of wrongful death and punitive damages. Apparently Mr. Schady worked as a pharmacist at Price Chopper, a NY grocer. He pled guilty to the criminally negligent homicide of his girlfriend's two-year-old child because he left a vial containing valium and cocaine unsecured and within easy reach of the child, who found it, ate it and died from it.

A court awarded the plaintiff, the child's father, $750,000.00 and the appeals court affirmed the amount.

Not only was the defendant convicted of a felony for his indifference to human life (as he admitted during his plea allocution to his awareness that if ingested by a child the contents of the vial would probably be lethal), but was punished civilly for it.

The appeals court noted that although the defendant had surrendered his NY pharmacy license, he was still continuing to practice pharmacy in New Jersey.