When he was a year old, G.M.M. was diagnosed with damage to his central nervous system as a result of exposure to lead-based paint. It was determined that lead paint in his family’s apartment was responsible for his injuries, and the family moved out. But by age 4, G.M.M. displayed a variety of cognitive, social and emotional impairments attributable to lead poisoning. A jury found that the landlord of the apartment had been negligent and was, therefore, responsible for compensating the child for the harm suffered (G.M.M. ex. rel. Hernandez-Adams v. Kimpson, 2015).
In calculating a damage award in a case like this, a key question is what the child’s lifetime earning potential would have been if he had not been injured. To come up with a value of that loss, the jury needed to estimate what the child’s likelihood of attaining postsecondary education would have been absent the lead poisoning. At various points in the trial, the landlord’s attorney attempted to show that “because the child was ‘Hispanic,’ his likelihood of obtaining a Bachelor, Master, or Doctoral degree, and any corresponding elevated income, was improbable.” One of the plaintiff’s experts also took ethnicity into account in making his estimates, though he also highlighted the educational attainment of the child’s parents—a father with a bachelor’s degree and a mother with a master’s degree.
The actuarial tables used by experts to make these sorts of estimates are often broken down by race or ethnicity. But the trial court judge, Jack Weinstein, ruled that ethnicity was not to be allowed as a factor in calculating the child’s tort damages. He noted: “Hispanics is too general a category.... We have professors as well as gardeners who are Hispanics, and I don’t believe that we ought to go forward in federal court with that assumption of uniformity.”
The judge noted that race-based estimates built on historical data reinforce “underlying social inequalities” and perpetuate discrimination. In addition, he noted that the use of race-based tables ignores the complexities of a multiracial society; obscures the connections between race or ethnicity, socioeconomic status and other related factors; and discounts the “myriad factors affecting an individual’s capacity to fulfill his or her potential.” He also observed that awarding lower amounts in damages for harms to minorities would undermine deterrence via the perverse effect of reducing incentives to protect them, noting that most of the children exposed to lead are poor and minority. Ultimately, the judge found that using ethnicity to determine educational potential violates the due process and equal protection clauses of the U.S. Constitution.
The issues raised in this case are not limited to race or ethnicity or to predictions about educational attainment. Indeed, estimates of several elements in this calculation—including the injured person’s life expectancy, work-life expectancy and expected wages—are all commonly broken down by race. These estimates are also typically broken down by gender. This can result in strikingly disparate damage awards for individuals of different races or genders who experience similar injuries.
As courts begin to think about how to most appropriately estimate likely educational attainment, life and work-life expectancies, and expected wages, psychologists may be able to provide some insight. Interestingly, Weinstein pointed to psychological research on resiliency as offering an alternative approach to evaluating children’s potential and quantifying their loss of earning capacity.
"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
