Dead Men Win No Lawsuits

Why ambulance-chasing attorneys won't go near your grandpa's demise

When sculptor Richard Lippold died in 2002, he left behind a breathtaking body of work, including huge wire-and-metal installations at the MetLife Building, Lincoln Center, the Four Seasons, and other venues around the world. He also left behind three children, a wife, and one angry boyfriend, who is now accusing a Long Island hospital of murdering the 87-year-old artist.

"They kill an old person and they don't care, because they know no one will take the case," says Augusto Gianni Morselli, Lippold's companion of 28 years. "If they can cause the death of this great human being, just imagine what they could do to you so-called normal people."

Lippold first gained a following in the 1950s avant-garde scene and hung out with fellow artists John Cage and Merce Cunningham. He married a dancer, Louise Greuel, had three children, and moved to Long Island. According to friends, Greuel "comprehended Lippold's need to have a separate, independent life" that included a string of serious boyfriends. Among them was the collage artist Ray Johnson. (Johnson walked into the ocean in 1995, committing suicide in what the art community described as his "final performance.") Lippold left Johnson in the 1970s for Morselli, a much younger Italian man who became his companion and assistant for the next three decades. Sculptor and NYU professor Marilynn Karp, a longtime friend of the couple and co-executor of Lippold's will, calls Morselli "Richard's devoted assistant, his inspiration, and his aide-de-camp in every way."

The Long Island house that the two men shared with Lippold's wife—and where Morselli still lives—is now in the middle of a tug-of-war between Morselli and the artist's children. The dispute landed in Nassau County court, where it is currently stalled. Morselli declined to provide details, saying only that it's a delicate issue and that the two sides are trying to hammer out some sort of agreement this week.

Meanwhile, Morselli is also in court battling Long Island's St. Francis Hospital in a case that has illuminated a quirk in state law that makes it difficult to sue for the wrongful death of elderly people and children. Morselli and Karp are suing the hospital, believing that a botched blood transfusion ultimately killed Lippold.

Morselli objected to a blood transfusion that Lippold was given; he says it was obvious that the final unit of blood had been sitting out too long and looked dangerously thick. The transfusion was halted when Lippold developed breathing problems and a fever. The next afternoon, he was dead. A private autopsy report blamed a reaction to the transfusion as a preliminary cause of death; the county's final report listed heart disease and pneumonia.

Morselli goes to New York County Civil Court on November 14, but he knows that the law is not on his side. New York state law allows damages for wrongful death only to remedy loss of income. If the deceased wasn't making money—as in the case of children, elderly people, housewives, or homeless people—there's no recourse: No damages for emotional loss can be awarded.

Because of this, Morselli has not been able to get a lawyer to see the case through. Bruce Ginsberg, a Manhattan personal-injury lawyer, agreed to work with Morselli to file the initial wrongful-death claim in 2004 but bowed out of the case soon after for reasons he won't disclose. He says only that he "finds it difficult to prosecute wrongful-death cases of elderly people . . . . The older you get, the less likely it is that a case involving wrongful death is worthwhile." Ginsberg isn't alone in his assessment: Normally ambulance-chasing lawyers would barely touch the case because of Lippold's age. "I spoke to 50 or 60 law firms, but they won't take the case because there's no money in it," says Morselli.

Jeff Korek, president of the New York State Trial Lawyers Association, calls the state law—unchanged since its passage in 1847—"archaic." The association has been trying to change the law for at least 17 years, but proposed legislation that would allow families to sue for emotional loss continues to get ignored. Trade associations like the Medical Society of New York have argued for years that the change could raise insurance premiums and cost hospitals millions of dollars.

Korek provides another example at the opposite end of the age spectrum: Maria Vega, whose six-year-old son Andry was run over and killed by a South Brooklyn Casket Company truck last winter. The driver ran a red light and struck the little boy, who was walking a few steps ahead of his baby-sitter and brother. In the case of a child being killed instantaneously, as Andry was, there's little ground to sue, says Korek, because it's difficult to prove that the child suffered as he died, or that the family suffered any economic losses. "There were no lost earnings; he had no pain and suffering," says Korek. "It's a terrible thing to say, but if that child had been maimed, the truck driver would be better off backing that truck up to kill him" (since causing an injury can be so much more costly than causing a death). So, while Korek has made a wrongful-death claim, he has also sued over the emotional distress of Andry's brother, who witnessed the whole thing. "The way the law is, you can collect more if you were frightened than if you were killed," said Mark Lagerkvist, the association's communications director.

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