No Punitive Damages in Sex Abuse Lawsuits Against Jeffrey Epstein Estate, Because of Epstein's "Reported Suicide"

Under N.Y. law, "punitive damages shall not be awarded" when the defendant is dead; that's also the general rule throughout the country.

|The Volokh Conspiracy |

From an opinion by Judge Katherine Polk Failla in Doe v. Indyke (S.D.N.Y.), decided in late June, but just mentioned in the Westlaw Bulletin:

To begin, Defendants seek dismissal of Plaintiff's punitive damages claim on the ground that New York law bars such claims in personal injury suits against representatives of a decedent's estate. The statute in question, § 11-3.2(a)(1) of New York's Estates, Powers and Trusts Law ("EPTL"), provides:

"No cause of action for injury to person or property is lost because of the death of the person liable for the injury. For any injury, an action may be brought or continued against the personal representative of the decedent, but punitive damages shall not be awarded nor penalties adjudged in any such action brought to recover damages for personal injury."

As three recent cases in this District, presenting similar claims against the same Defendants, have recognized, this provision clearly prohibits the award of punitive damages in the situation at hand. See Mary Doe v. Indyke, 2020 WL 2036707 (S.D.N.Y. Apr. 28, 2020); Lisa Doe v. Indyke, 2020 WL 3073219 (S.D.N.Y. June 9, 2020); Doe 15 v. Indyke, 2020 WL 2086194 (S.D.N.Y. Apr. 30, 2020) ("New Mexico common law as announced by the state supreme court, like EPTL § 11-3.2(a)(1), bars punitive damages in a personal injury action against a tortfeasor's estate."). Both federal courts addressing constitutional-tort claims under New York law, and state courts in personal injury actions governed by New York law, have concluded similarly. See Mary Doe, 2020 WL 2036707, at *2 (collecting New York federal and state cases).

This position is also reflected in the majority of United States jurisdictions, as the Restatement (Second) of Torts indicates. See Restatement (Second) of Torts § 908 cmt. a (Am. Law Inst. 1979) ("Punitive damages are not awarded against the representatives of a deceased tortfeasor."). The common justification for the majority rule is that "punishment and deterrence—the recognized bases for imposing punitive damages on a tortfeasor—are not advanced by imposing punitive damages on his or her estate." Mary Doe, 2020 WL 2036707, at *3; see also Blissett v. Eisensmidt, 940 F. Supp. 449, 457 (N.D.N.Y. 1996) (brackets and citation omitted) ("There is a strong policy against the assessment of punitive damages against an estate on account of wrongful conduct of the decedent.").

The court also held, consistently with past decisions, that New York law applied, because

Plaintiff was domiciled in New York. All of the alleged torts took place in the home Epstein maintained in New York. Further, Plaintiff chose to sue in New York, where her causes of action are timely pursuant to the New York Child Victims Act…. These facts, taken together, demonstrate that New York's interest in applying its punitive damages rules to this case outweighs the USVI's interest, which exists only because of Epstein's decision to probate his estate there. If anything, it is the USVI, and not New York, that has a "merely fortuitous relationship with the case," minimizing its interest in governing punitive damages.

(The court also concluded that Virgin Islands law would likely also preclude punitive damages against dead tortfeasors, but in any event New York law definitely precluded such damages, and it was New York law that applied.)

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  1. Why?

    Why is this distinction made?

    1. Not the same deterrence interest, I presume.

      1. All I am going to say is that Jeffrey Epstein did not commit suicide.

        1. “All I am going to say is that Jeffrey Epstein did not commit suicide.”

          I’ve wondered about autoerotic asphyxiation — if he was having as much sex as he reportedly was, on a daily basis, and then suddenly was without female companionship, well….

          As it was explained to me, oxygen deprivation intensifies the orgasm, although continued oxygen deprivation results in death. Accidental hanging — it happens. It happened at UMass, I forget what the press was told but it wasn’t what really happened.

    2. Next time try reading the post and not just the title.

      The common justification for the majority rule is that “punishment and deterrence—the recognized bases for imposing punitive damages on a tortfeasor—are not advanced by imposing punitive damages on his or her estate.” Mary Doe, 2020 WL 2036707, at *3; see also Blissett v. Eisensmidt, 940 F. Supp. 449, 457 (N.D.N.Y. 1996) (brackets and citation omitted) (“There is a strong policy against the assessment of punitive damages against an estate on account of wrongful conduct of the decedent.”).

      1. Sounds completely reasonable.

      2. I’m not sure why imposing punitive damages on an estate isn’t a deterrent. People like to leave money to their heirs.

        1. It might be. On the other hand, it’s also levying a punishment on the heirs.

          1. Not really. No one is entitled to an inheritance.

          2. But can’t punitive damages be assessed against a corporation even though the malefactor is dead? And that can be a punishment on the heirs.

    3. Punitive damages are not intended to compensate the victim for the harm suffered. They are supposed to punish or deter particularly bad actions.

      In practice, of course, I have my doubts that juries always make that distinction. And a plaintiff is as happy receiving a payment of $20 million, whether broken down as all $20mm in compensatory damages, or as $10 million compensatory plus $10 million punitive (it’s the same $20 million in the plaintiff’s pocket, if actually paid). So it might be a bit of a legal fiction. (Of course, if the defendant is not super wealthy, a plaintiff may want higher compensatory damages, since insurance cannot pay punitive damages in any state I’m aware of. On the other hand, if the defendant is very wealthy, then the plaintiff may want a good chunk of punitive damages, as they cannot be discharged in bankruptcy. This does not get into the due process limits on the ratio of punitive damages to compensatory damages that the United States Supreme Court has set.)

      Lastly, the rule assumes that the prospect of a future, post-death award of punitive damages reducing a defendant’s heirs’ inheritance is not sufficient deterrence to the tortfeasor to justify scrapping the old rule.

      In any event, unless NY law places a cap on compensatory/general/noneconomic damages, I think the victims will be asking for tens of millions each in compensatory damages (at least). And I can imagine juries issuing such large verdicts. So I’m not sure the plaintiffs/victims will be hurt financially from this. But an interesting question is whether there is certain damning evidence that will be excluded now that punitives are not longer on the table.

      1. Punishment and deterrence are quite different.

        Punitive damages certainly punish the bad guy, which is useless when he’s dead, but I don’t see how deterrence affects him, living or dead.

        Deterrence surely is aimed at possible future tortfeasors, not the one being sued – he already did it – so the basis of the rule doesn’t look as firm as all that.

        1. That’s what I was thinking. You so something particularly horrific (i.e. dump toxic waste in an elementary school’s drinking water) but die before the suit gets to trial, your estate gets to keep all the ill-gotten gains?

          1. No, they have to give up the ill-gotten gains. But you want the next guy to be worried that he’ll have to pay more than the ill-gotten gains. But that applies equally to estates, you want the next guy to be worried that he won’t leave anything to his heirs.

      2. I thought I’d been told that compensatory damages generally aren’t taxed, while punitive damages generally are, which is another reason why a plaintiff would prefer compensatory to punitive if the amount is the same either way.

        1. Depends what the underlying tort is. If it is personal injury you are correct. If it is economic injury, including employment discrimination, then it’s all taxable.

          1. In my prior firm, some of the partners handle emploment cases. At the time, the rule was that emotional-stress damages were not taxable, but lost wages were. So, not surprisingly, when parties settled, the plaintiffs wanted as much as possible of the settlement characterized as the former instead of the latter. Paying defendants generally did not care — the same amount of money came out of their pockets.

            The IRS (or maybe Congress) later changed the rule that all aspects of employment discrimination awards are taxable.

          2. That makes sense. When I was told that, it was in regards to a vehicle accident involving a hit and run that caused major injury.

            I was also told that, if it went to trial and the judge/jury (idk which it would’ve been) decided that the insurance company wasn’t playing fair (by denying that their driver was involved when evidence overwhelmingly showed he was), that they could be forced to pay punitive damages or amounts in excess of policy limits. They ended up settling for policy limits shortly before the trial was scheduled to start, so that didn’t end up happening.

      3. “I think the victims will be asking for tens of millions each in compensatory damages (at least). And I can imagine juries issuing such large verdicts.”

        What exactly are their COMPENSATEABLE damages?

        They are now healthy middle-aged women, they aren’t in wheelchairs, they don’t heed PCAs, they are able to work and have normal lives.

        What happened to them was horrific and it should be punished — but it’s over now and isn’t happening anymore.

  2. In most places punitive damages are uninsurable — because it’s the insured himself who should pay them; they should not be paid out by anyone else, such as his insurance company. This logic means that if he’s dead, his heirs shouldn’t pay them either.

    1. “This logic means that if he’s dead, his heirs shouldn’t pay them either.”

      This strikes me as clearly different. You obviously don’t want to let people mitigate the risk that they might be punished. OTOH, punishing someone by diminishing their estate creates a disincentive to others who might want to leave something to their heirs.

    2. This logic means that if he’s dead, his heirs shouldn’t pay them either.

      Even if punitive damage claims survived death, the heirs wouldn’t be paying them; the estate would.

  3. But . . . if he was still alive, and there was a judgment entered against him for punitive damages, and then he died, would his estate be on the hook for them (just like they’re on the hook for any other unpaid judgments)?

    1. Interesting question. I don’t know the answer, so I’m hoping that lawyers who actually practice in this area will see your question and respond. (My default fallback answer is, “Depends on the jurisdiction.” which seems to be correct 99% of the time, when people ask me legal questions outside of my fields of practice. But it’s also a weasel answer. LOL.)

    2. But . . . if he was still alive, and there was a judgment entered against him for punitive damages, and then he died, would his estate be on the hook for them (just like they’re on the hook for any other unpaid judgments)?

      Yes. A judgment is a judgment; you don’t look through the judgment to find out what it’s for. (That’s not true in all contexts; for example, the dischargeability of a judgment in bankruptcy can depend on what the judgment is for.)

  4. So as long as you die you can get away with anything. Noted.

    1. Epstein, his estate, and “clients” haven’t gotten away with anything, if you believe there is a spiritual reckoning after drawing one’s last breath.

      Meanwhile, they’ve left the world dirtier for their having lived and exploited whom they would.

      1. “Epstein, his estate, and “clients” haven’t gotten away with anything, if you believe there is a spiritual reckoning after drawing one’s last breath.”

        If people genuinely believed that we would witness profoundly different behavior.

        1. Yes, that explains such hideous behavior and acts of atrocity. Too bad, not only for both the perps and their victims, but for our collective consciousness.

          No doubt you sleep well at night.

  5. If punitive damages are, well, punitive, then I suppose they wouldn’t want to impose such damages on someone who is beyond the reach of human justice. It would be like the Cadaver Synod.

    https://en.wikipedia.org/wiki/Cadaver_Synod

    Only it would be the Cadaver Damages.

  6. The headline seems misleading.

    The reason for no punitive damages is simply that Epstein is dead. The theory, in many jurisdictions, is that it’s not possible to punish or deter the dead, so punitive damages against the dead or their estate serve no purpose.

    Nothing to do with the manner of his death. The headline incorrectly suggests that Epstein’s “reported suicide,” not the death itself (a fact no-one disputes), is the reason.

  7. This is an unfortunate rule that encourages suicide. A person should not be in a position to make their heirs better off by killing themselves.

    1. How about Giles Corey who refused to enter a plea to Witchcraft and was pressed to death — enabling his two sons-in-law to inherit his estate.

    2. Yeah, the rule makes sense generally, but not in the case of suicide. It rewards the deceased for having committed suicide to avoid a punitive judgment against him (or her).

    3. The death penalty is considered the ultimate punishment as it is completely irreversible and takes everything from the defendant. If a defendant take the death penalty voluntarily, it seems entirely appropriate to eschew all lesser punishments. Especially as the defendant is no longer here to suffer them.

      I mean think about non-monetary punishments for a moment. He committed suicide to prevent himself from suffering the punishment of life in jail! We’re going to prevent his heirs from burying his body and prop his corpse up in a jail cell for 40 years, so future people don’t use suicide to get out their punishments!

  8. Can Hillary deduct as a business expense her used pantyhose with which she strangled Mr. Epstein?

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