Trial Magazine

For too long, women and people of color have been at risk of having their injuries devalued by the tables experts use to calculate damages.¹ For example, in a car crash that killed a 6-year-old girl and a male fetus, gender-based tables resulted in 84% higher damages for the male fetus.² The difference in damages occurred despite evidence of the girl’s early achievements and existing college fund.

Yet of the forensic economists who testify on tort damages, approximately 44% reported using race-based tables and approximately 90% reported using gender-based tables to make their calculations.³ This practice preserves structural inequalities and perpetuates discrimination—something directly antithetical to the aims of the civil justice system.⁴ Here’s how to help your clients overcome this bias.

Use the case law. The majority of states have yet to mandate the use of blended tables that do not delineate based on gender or race, so relying on experts who use status-specific tables remains the prevailing practice. Still, some courts have rejected calculations that segregate ­plaintiffs based on race and gender for three primary reasons:

1. The tables are unreliable. Because they are based on historical data, the tables cannot accurately reflect future progress for women and people of color in the workforce.⁵ For example, as the trial judge in Reilly v. United States noted, reducing the work-life expectancy of a female plaintiff makes no sense given ongoing changes in women’s labor force participation rates.⁶
2. The tables are discriminatory. Courts using this reasoning find it inappropriate to incorporate current and potential future discrimination into justice-based awards for lost wages damages.⁷ In McMillan v. City of New York, the court refused to allow the defendant to use race-based tables to limit the life expectancy of an African-American plaintiff because the tables failed to acknowledge racial constructs and the importance of other socioeconomic factors.
3. The tables are unconstitutional. This analysis finds courts’ use of the tables an unconstitutional state action.⁸ In G.M.M. v. Kimpson, the court said that using “ethnicity-based statistics” violates due process and equal protection because it “ignores the myriad factors affecting an individual’s capacity to fulfill his or her potential” and relies solely on categorical classifications.⁹

Use this case law to argue against calculations that devalue your clients’ damages potential because of their demographics. Start educating the court early through pretrial submissions and other evidentiary motions.

Personalize the damages analysis. The gig economy, workforce digitization, diversity and inclusion mandates, and skilled-worker shortages have changed the nature of work, which means you may need to develop client-specific economic loss evidence and hire experts who can provide an in-depth understanding of those losses. College or university professors as well as people recognized as industry leaders can serve as resources on the true economies of your clients’ abilities. Knowledgeable people from within a particular career demographic can provide meaningful insights to the fact-finder about the specific earnings capacity of a plaintiff who can no longer work within that field.

Making economic loss damages personal and unbiased not only increases the odds of obtaining a fair measure of justice for your clients but also helps to protect the system we all serve.

Kathleen Flynn Peterson is a partner at Ciresi Conlin in Minneapolis. She can be reached at KFP@ciresiconlin.com.

Notes

1. See Lawyers’ Comm. for Civil Rights Under Law, How Race, Ethnicity, and Gender Impact Your Life’s Worth: Discrimination in Civil Damage Awards (2018), https://tinyurl.com/y3zo6byq.
2. Childs v. United States, 923 F. Supp. 1570 (S.D. Ga. 1996). 
3. See Kim Soffen, In One Corner of the Law, Minorities and Women are Often Valued Less, Wash. Post Wonkblog (Oct. 25, 2016), www.washingtonpost.com/graphics/business/wonk/settlements/.
4. In April, AAJ cosigned a letter to the Nat’l Assoc. of Forensic Economics with a call to take “an official position against the use of race- or gender-based statistics that result in awards below what a similarly situated white man would receive.” Read the letter at: https://tinyurl.com/yxegrvp8.
5. See, e.g., Reilly v. United States, 863 F.2d 149 (1st Cir. 1988).
6. Id. See also Vanessa Fuhrmans, Female Factor: Women Drive the Labor Force Comeback, Wall St. J. (Mar. 1, 2019).
7. See, e.g., McMillan v. City of New York, 253 F.R.D. 247, 250 (E.D.N.Y. 2008) (citing Audrey Smedley & Brian D. Smedley, Race as Biology Is Fiction, Racism as a Social Problem Is Real, 60 Am. Psychologist 16, 23 (2005); see also Wheeler Tarpeh-Doe v. United States, 771 F. Supp. 427, 455 (D.D.C. 1991), rev’d on other grounds, 28 F.3d 120 (D.C. Cir. 1994).
8. G.M.M. v. Kimpson, 116 F. Supp. 3d. 126 (E.D.N.Y 2015); see also McMillan, 253 F.R.D. 247.
9. G.M.M., 116 F. Supp. 3d at 152.