Dead Mans Statute; Roger Ailes Sudden Death May Complicate Sexual Harassment Lawsuits

via AP

Roger Ailes death could present a major setback to a series of lawsuits that claim he sexually harassed women anchors and contributors at Fox News. Last year, Ailes left Fox News amid the storm of scandal highlighting rampant sexual harassment by Ailes and at Fox News.  Ailes died last week after a fall causing bleeding in his brain.


Former Fox News co-host Andrea Tantaros at the 2015 White House Correspondents’ Association Dinner. (Charles Sykes/Charles Sykes/Invision/AP)

Roger Ailes and Fox News had been rocked by a number of sexual harassment allegations including a lawsuit filed by former anchor Andrea Tantaros and contributor Julie Roginsky. Roginsky’s lawsuit, filed in April, is the most recent.   It followed a New York Times expose which revealed $13 million in settlements to five women who have accused Fox News host Bill O’Reilly of sexual harassment and other inappropriate behavior.  In August 2016, Tantaros filed a lawsuit alleging that, in addition to being subjected to harassment by Ailes, Fox hacked into her personal computer and engaged in illegal surveillance of her.  Both women allege that Fox News retaliated against them when they complained.  Roginsky’s case is pending in Manhattan’s New York State Supreme Court.  Tantaros is appealing a decision to relegate her case to arbitration in New York.  Gretchen Carlson also sued Ailes in July for sexual harassment and retaliation. Her case is in a New Jersey State court.


Julie Roginsky co-hosts “The Five” on the Fox News Channel on March 30, 2015. Richard Drew / AP, file

Despite Ailes’ death, the cases can move forward against Ailes’ estate.  The New York cases, however, may confront a legal mechanism that would keep out the plaintiffs’ testimony about private conversations they had with Ailes. Both Tantaros and Roginsky base their key claims on these private conversations. Commentators have evoked an arcane 19th century New York statute, referred to as the “Dead Man’s Statute.”  The law operates by keeping a witness from testifying about personal conversations with a dead litigant. It is designed to protect a dead litigant’s interest from misrepresentation. The basic idea is that a dead man can’t give his perspective on or context for private one-on-one conversations. Thus it would be unfair to allow testimony about that conversation to be entered into evidence.

The dead man’s statute can be used two ways: offensively and defensively.  Defensively, Roger Ailes’ lawyers can argue that since Ailes is not present to defend against statements that he allegedly made during one-on-one conversations with the Plaintiffs, the Plaintiffs should not be allowed to testify about those conversations. The statute may be used offensively, when the Plaintiff has taken the dead defendant’s deposition. A deposition is sworn testimony taken by the opposing party during the evidence gathering phase of a lawsuit.  If Plaintiffs had taken Ailes’ deposition, that deposition testimony could be submitted as evidence.  Thus, outfoxing the basis for the statute. The idea here is that if a party was deposed before dying, his testimony should be considered and weighed against the plaintiff’s account of events.

Ailes forcefully denied the accusations against him. However, besides a veiled statement late last year, Roger Ailes had not commented in depth about the sexual harassment allegations that multiplied against him.  In November 2016, Ailes released the following statement to the Washington Post via his lawyer:

“I categorically deny the allegations Megyn Kelly makes about me. I worked tirelessly to promote and advance her career, as Megyn herself admitted to Charlie Rose. Watch that interview and then decide for yourself. My attorneys have restricted me from commenting further — so suffice it to say that no good deed goes unpunished.”

Megyn Kelly via Vanity Fair

Ailes was referring to reports that Kelly told outside investigators that Ailes had sexually harassed her a decade ago. The statute of limitations for a sexual harassment lawsuit varies by state.  In New York the limitation period is three years so even if Kelly wanted to file a lawsuit at that point, it would have been time-barred.

Getting back to archaic New York laws, commentators note that the statute, a mechanism commonly applied in the context of wills and trusts, has never been employed in sexual harassment case.  If, however, Ailes’ estate invokes the Dead Man’s Statute’s protection and the judge buys arguments that the law applies, Roginsky and Tantaros will have an uphill battle. As Ailes said, his lawyers advised him against any further comment, and depositions at these early stages of litigation would be rare. Thus, it would be the plaintiffs’ testimony against a dead man’s; a result that New York would not allow.

Among the pending lawsuits is a case filed in federal court last year by Lidija Ujkic. She says that Ailes asked her former boyfriend whether she would “put out, sexually” and refused to hire her telling her she was not “ready” for Fox News when he was told that she was a “very nice girl.” Federal courts apply state law on this issue. Douglas Wigdor, a New York City attorney representing Ujkic, pointed to the essential issue raised by Ailes’ death:

“When our client testifies to these things, Roger Ailes will not be there to rebut her,” said. “Fox won’t be able to call him (as a witness) and say that’s not true.”

Plaintiffs will need to produce workplace records that would corroborate or give context to the Plaintiff’s testimony. Lawyers for the plaintiffs have yet to comment on how they plan to move forward.

Ailes has been lauded as a media genius but there is so much more to be said about this depraved and deplorable dead man and his legacy of setting back women’s equality in the workplace.  


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