Washington Post: The 4-year old boy was mentally disabled, unable to speak in complete sentences and unable to play with other children because of his violent fits of hitting and biting.
The decision facing one Brooklyn jury last year was how much a landlord should pay in damages to the boy — named “G.M.M.” in court documents — after an investigation showed he had been living in an apartment illegally coated with lead paint. To determine that, the jury would have to decide how much more the boy would have earned over his lifetime without the injury.
Attorneys representing G.M.M. said $3.4 million was the right number, arguing that the boy would have had a bright career ahead of him; both of his parents had graduated from college and his mother received a master’s degree, according to the court documents. But the landlord’s defense put the figure at less than half that – $1.5 million. Attorney Roger Archibald noted that because the boy was Hispanic, G.M.M. was unlikely to attain the advanced education that would garner such a large income.
“The [proportion] of Hispanics attaining master’s degrees was in the neighborhood of 7.37 percent,” Archibald told the court.
The 4-year-old’s case is a rare public look at one corner of the American legal system that explicitly uses race and gender to determine how much victims or their families should receive in compensation when they are seriously injured or killed.
As a result, white and male victims often receive larger awards than people of color and women in similar cases, according to more than two dozen lawyers and forensic economists, the experts who make the calculations. These differences largely derive from projections of how much more money individuals would have earned over their lifetimes had they not been injured – projections that take into account average earnings and employment levels by race and gender.
In one case, when a 6-year-old girl and a male fetus were killed in the same car crash, the settlement for the fetus was calculated to be up to 84 percent higher than the girl’s, according to court records….
Defenders say it is the most accurate way to make calculations about the losses people incur when they are injured. “If there’s a difference in society, it is what it is. It’s a difference, and the economist’s job is to figure out what would have happened,” said James Woods, a forensic economist in Houston…
George Barrett, a forensic economist in Charleston, W.Va., said “the overwhelming majority” of economists account for gender, and though it’s far less universal, it’s “absolutely” common for race-based tables to be used. He called employing demographics averages “the industry standard.”
In a 2009 survey by the National Association of Forensic Economics, 44 percent said they considered race and 92 percent said they considered gender when projecting the annual wage for an injured child. Race and gender also come into play in many other calculations as well…
The practice of using race and gender to determine personal injury damages, which dates back at least a century, has produced some striking results.
The case of the male fetus and 6-year-old girl came in 1996, after a collision between a postal truck and a car left the car’s passengers – the girl and her godmother, a pregnant 33-year-old – dead.
In the case, which took place in a federal court in the Southern District of Georgia, both sides agreed the male fetus’s award to be higher than the girl’s, largely because of the difference in how much they were expected to earn over their lifetime, commonly known as “future lost income.”
…In a 1991 case, the son of a USAID employee stationed in Liberia fell ill and sustained serious, permanent brain damage, allegedly because of the negligence of State Department doctors and other officials. The court ruled in the boy’s favor, but when it came to assessing damages, there was an uncomfortable conflict: The boy’s mother was white. His father was black. So what race was he?
The government argued that he qualified as black, which would have significantly decreased their liability. The plaintiff, with whom the judge eventually sided, pushed for considering both black and white statistics, according to court records.
Calculating future lost income takes into account the number of years a victim would have worked and his or her expected wages. Women and minorities are lower on both fronts. Economists’ calculations use these averages to varying extents based on the details of the case, also accounting for things such as the person’s age and wage history. Demographic averages tend to play the biggest role in cases where lengthy work history, education and other variables aren’t readily available – such as with children and people who (by choice or not) don’t work…
When Archibald, the landlord’s lawyer in the lead poisoning case, brought up Hispanic averages in discussing the boy’s eventual education level, the judge interjected.
“I won’t allow you to continue along those lines. Hispanics is too general a category,” said Judge Jack Weinstein of the Eastern District of New York. “We have professors as well as gardeners who are Hispanics.”
From then on, none of the discussion in court directly addressed G.M.M.’s demographics, according to court records. Yet that wasn’t the end of the story. Although the judge banned discussion of the boy’s ethnicity in the court, the jury still had access only to calculations of damages that included ethnicity as a component.
In a sign of how common the practice is, even the boy’s legal team accounted for his ethnicity, but gave more weight to his family characteristics. The defense focused on outcomes of Hispanics nationwide.
