The death of Roger Ailes in May adds an unexpected challenge to both parties of the sexual harassment lawsuit filed against Ailes. While close family and friends of Roger Ailes are still grieved by the loss, the attorneys representing the plaintiffs and Ailes’ estate are facing the complications of “Dead Man’s Statute.”
The Death of Roger Ailes
Both sides involved in the litigation have expressed their sympathies and grievances after the news of Roger Ailes’ death was released. Rupert Murdoch, CEO of Twenty-First Century Fox, stated, “Everybody at Fox News is shocked and grieved by the death of Roger Ailes. Roger and I shared a big idea which he executed in a way no one else could have. Roger was a patriot who never ceased fighting for his beliefs.”
“Roger Ailes has left behind a grieving widow and teenage child.” said New York-based attorney, Judd Burstein, who is currently representing former Fox News anchor Andrea Tantaros in a sexual harassment lawsuit.
According to the Palm Beach Medical Examiner, Roger Ailes died from a subdural hematoma (bleeding in the brain) after a fall in his home in Florida.
“Dead Man’s Statute”
The attorneys who are defending Ailes’ estate now face a large problem: Roger Ailes can no longer provide testimony. However, according to New York state law, this also limits the testimony that may be used by the plaintiffs because of “Dead Man’s Statute.”
A Dead Man’s Statute is a law of evidence created in 1851 that is still in use by a minority of states to protect against perjury, and is most commonly cited in cases involving wills and trusts. To put it simply: the Dead Man’s Statute prevents the use of testimony regarding private conversations to be used against a deceased party. Many sexual harassment cases are built on the foundation of witness and victim testimony, which the Dead Man’s Statute will now drastically limit.
Jack Schaedel, part of the labor and employment group in the Los Angeles office of Dykema Gossett, stated, “Harassment cases like these often involve ‘she said/he said’ situations. What’s to stop the plaintiff from saying that Ailes promised her $10 million for sex? If he’s not there to rebut it, does that mean she can say it and she wins?”
While this situation poses a large challenge to the plaintiffs, it also, on the other hand, creates a challenging situation for Fox. For example, if the court finds that top leadership at Fox News was aware of problems involving sexual harassment, but did nothing to stop the inappropriate conduct, then the defense will have a more difficult time defending itself without Ailes to give context or refute further claims.
Ana Fromholz, an employment attorney who founded the Pasadena, California-based Fromholz Firm, stated, “Typically, it’s the obligation of the top leadership of the company to see that there was a problem and take steps to correct it and prevent it from happening again. In these cases, the top leadership of the company are the ones accused of creating the problem, and Ailes won’t be around to explain what happened.”
There are other avenues in which the plaintiffs may still provide testimony, even if the Dead Man’s Statute applies. If there is any physical evidence of Ailes recounting the events in question, this may be used as ground for providing testimony by parties involved. “He may have recounted one of the incidents to someone, or sent emails giving his side of the story,” said Fromholz, “and that would be admissible as an exception to the hearsay rule.”