JACK B. WEINSTEIN, Senior District Judge:
I. Introduction ...................................................................... 128
II. Communities Disproportionately Harmed By Lead-Based Paint ........................ 129
III. Facts ........................................................................... 130
A. Summary of Case ...... 130
B. Expert Testimony Regarding Ethnicity-Based Statistics ........131
1. Plaintiffs' Experts ........................................................131
2. Defendant's Expert .........................................................135
IV. The McMillan Rule .......................................................135
A. Law .....135
1. The Case ....................................................................115
2. Scholarship .................................................................140
a. Use of Minority-Specific Data in Tort Cases ..............................140
b. Use of Minority-Specific Data in Lead-Based Paint Cases ..................142
3. Race and Ethnicity .........................................................143
a. United States Census .....................................................143
b. Critiques of Census Practices ............................................146
B. Application ..............................................................148
V. Life, Worklife, and Educational Attainment Expectancy Tables .......................149
A. History .........................................................................149
B. Law .............................................................................151
C. Application .....................................................................152
VI. Categorical Advantages Afforded to Members of Historically Disadvantaged
Minorities Not Inconsistent with Excluding Evidence of Race or
Ethnicity Where Appropriate ........................................................154
A. Law .............................................................................155
B. Application .....................................................................157
VII. Constitutional Requirements Supplementing Rule 403 of the Federal Rules
of Evidence .......................................................................157
VIII. Conclusion .......................................................................159
Posed is the question: can statistics based on the ethnicity (in this case, "Hispanic") of a child be relied upon to find a reduced likelihood of his obtaining higher
A mother suing on behalf of herself and her child claimed injury to the infant's central nervous system caused by his absorption of lead dust. The defendant was the owner and lessor of the apartment the plaintiffs lived in during the child's gestation, birth, and first year of life. The apartment, the jury found, contained lead-based paint that had not been properly removed or encapsulated. The total verdict in favor of plaintiffs was $2,005,000.
When the case was tried, the child was less than four years old. A critical factor in determining damages required ascertaining the infant's prospects for obtaining postsecondary education degrees had he not suffered from lead poisoning. In contesting damages, defendant's attorney attempted to show, through the use of expert economic testimony, statistics and cross-examination of the plaintiffs' experts, that because the child was "Hispanic," his likelihood of obtaining a Bachelor, Master, or Doctoral degree, and any corresponding elevated income, was improbable.
The father has a baccalaureate degree, the mother has a Master of Fine Arts; both held responsible income-generating jobs; the family was stable; and the parents were caring. Based upon his specific family background, had the child not been injured, there was a high probability of superior educational attainment and corresponding high earnings. Treated by experts as a "Hispanic," his potential, based on the education and income of "average `Hispanics' in the United States," was relatively low.
At trial, the court ruled that, for the purposes of projecting damages, the specific characteristics of the child and his family, rather than the characterization of the child as a member of a particular ethnic group, must be used in determining damages. The ruling was based on the same constitutional and other factors relied upon in McMillan v. City of New York, 253 F.R.D. 247 (E.D.N.Y.2008). That case held that statistical evidence used to prove that a spinal cord-injured "African-American" was likely to survive for fewer years than occidental persons with similar injuries violated the equal protection and due process clauses of the United States Constitution, and was inadmissible in computing life expectancy and damages.
Lead-based paint is the primary means by which children are exposed to lead. See Center for Disease Control and Prevention ("CDC"), Preventing Lead Poisoning in Young Children 1, 4 (2005), http:// www.cdc.gov/nceh/lead/publications/PrevLeadPoisoning.pdf (last visited July 28, 2015). Lead poisoning is often caused by ingesting paint chips or dust, likely to be found in older buildings in low-income neighborhoods. See CDC, Managing Elevated Blood Lead Levels in Young Children 4, 17 (2002), http://www.cdc.gov/nceh/ lead/casemanagement/managingEBLLs.pdf (last visited July 28, 2015).
Laura Greenberg, Compensating the Lead Poisoned Child: Proposals for Mitigating Discriminatory Damages Awards, 28 B.C. Envtl. Aff. L.Rev. 429, 431-32 (2001).
Because low-income and minority families are more likely to occupy older homes with lead-based paint, the majority of children poisoned by lead in the United States are poor African-American and Latino children. See Martha Chamallas & Jennifer B. Wriggins, The Measure of Injury: Race, Gender, and Tort Law 1, 138-53 (2010) (analyzing how tort law and lead-paint case damage awards demonstrate racial and ethnic bias in the judicial system); CDC, Using GIS to Assess and Direct Childhood Lead Poisoning Prevention: Guidance for State and Local Childhood Lead Poisoning Prevention Programs 1, 2 (2004), http://www.cdc.gov/nceh/lead/ publications/UsingGIS.pdf (last visited July 28, 2015) (concluding that children at greatest risk for lead poisoning are those whose families are poor and live in substandard housing built before 1950, and that these children tend to be "African-American" or of "Hispanic" ethnicity); see also CDC, Surveillance for Elevated Blood Levels Among Children-United States 1997-2001, 52 Morbidity and Mortality Weekly Report No. ss-10 at 5 (2003) (discussing the lasting harms of lead exposure on children and the preventative measures taken to reduce such exposure); James L. Pirkle, Exposure of the U.S. Population to Lead, 106 Envtl. Health Perspectives 1, 11 (1998) (asserting new efforts must address the difficult problem of lead paint exposure, especially in older houses, as well as lead in dust and soil to remedy the prevalence of elevated blood-lead levels in children); Debra Brody et al., Blood Lead Levels in the U.S. Population, 272 J. Am. Med. Ass'n 277, 279 (1994) (highlighting how exposure to lead at levels that may adversely affect the health of children remains a problem especially for those who are minority, urban, and from low-income families).
The building containing plaintiffs' apartment was old. See Jury Instructions and Signed Verdict Sheet 6, July 10, 2015, ECF No. 83 ("Jury Instructions and Verdict"). It contained lead paint, which was, at least in part, covered by sheetrock or new paint installed by the landlord before the family moved in. See Trial Transcript ("Trial Tr.") 677:15-678:5, July 6, 2015.
"Until recently, children were identified as having a blood lead `level of concern'" if their blood-lead test resulted in "10 or more micrograms per deciliter of lead in blood." CDC, Lead, Update on Blood Lead Levels in Children, http://www.cdc. gov/nceh/lead/ACCLPP/blood_lead_levels.htm (last visited July 28, 2015). In expanding protection against this serious health danger, the CDC now suggests professional monitoring of children with five micrograms per deciliter of lead in the blood. Id.
The child in this case had almost ten micrograms per deciliter of lead in his blood. See Trial Tr. 344:8-13, June 30, 2015.
This case was tried by a jury. See G.M.M. v. Kimpson, 92 F.Supp.3d 53, 60-61, No. 13-CV-5059, 2015 WL 1285704, at *5 (E.D.N.Y. Mar. 19, 2015) (denying plaintiffs' motion for summary judgment and holding that fact issues existed as to whether landlord's renovation encapsulated paint and whether exposure to lead caused infant's condition). After a two-week
The infant plaintiff, G.M.M., and his mother, Niki Hernandez-Adams, were tenants in the basement apartment located at 490 MacDonough Street in Brooklyn, New York. Id. at 6. They alleged that defendant Mark Kimpson, their landlord, and the owner of the three-family apartment house at that location, was liable for the infant's elevated blood-lead levels. Id. This blood-lead level was first discovered by G.M.M.'s pediatrician when the infant was one year old. Id.
Defendant argued that he had sufficiently encapsulated the hazardous lead-based paint in the apartment. Id. at 7. He contended that plaintiffs' dog severely scratched the walls and the moldings in the apartment, releasing lead dust. Id. He also maintained that the infant's cognitive and behavioral difficulties resulted from other medical conditions of his mother during gestation. Id.
During trial, testimony regarding the future economic prospects of the child-plaintiff, had he not been poisoned with lead, were discussed by three experts: Dr. Kenneth William Reagles, plaintiffs' forensic rehabilitation expert, Dr. Frank Tinari, plaintiffs' forensic economist, and Dr. Bernard F. Lentz, defendant's forensic economist.
Dr. Reagles is a specialist in vocational rehabilitation and a retired professor of rehabilitation services at Syracuse University. See Trial Tr. 396:18-25, 397:15-17, June 30, 2015. He characterized his vocation as "render[ing] opinions about what a youngster might have become had [he] not become disabled. And then to contrast that with [his] circumstances presently and the barriers to education and employment that are confronted by individuals such as [G.M.M.]." Id. at 399:13-15, 399:20-25, June 30, 2015.
Reagles' direct testimony predicted what the child would have become without the injury. He noted the general "Hispanic" background of the boy, but placed primary reliance on the parents' specific backgrounds:
Id. at 400:19-406:1, June 30, 2015 (emphasis added).
On cross-examination, defense counsel emphasized the low general educational backgrounds of the ethnic group he characterized as "Hispanics."
Id. at 417:19-430:21, June 30, 2015 (emphasis added).
Precluding an answer, the court, on its own motion, ruled, excluding ethnicity as a factor in damages computations:
Id. at 430:23-431:7, 436:15-20, June 30, 2015 (emphasis added).
The court then inquired of the expert:
Id. at 436:24-437:2, June 30, 2015.
Dr. Reagles responded: "Not materially and substantially at all." Id. at 437:11-12, June 30, 2015.
After the jury left the courtroom, the court explained that it was relying on its decision in McMillan v. City of New York, 253 F.R.D. 247 (E.D.N.Y.2008), and the case's "[d]iscussion of race sociology and statistics." Id. at 441:11-14, June 30, 2015. Neither party objected to the ruling. Id. at 441:15-20, June 30, 2015.
On July 6, 2015, before plaintiffs' separate economic expert, Dr. Tinari, took the stand, the court reminded the jury of its June 30, 2015 ruling, adding:
Trial Tr. 576:19-577:8, July 6, 2015 (emphasis added). Plaintiffs' economic expert was then instructed as follows:
Id. at 577:10-12, July 6, 2015.
The economic expert projected plaintiffs' total future economic losses to be between
Dr. Lentz was defendant's forensic economist. See Trial Tr. 1128:5-11, 19-21, July 8, 2015. He holds a doctorate in economics and has conducted research and taught at Virginia Tech, Ursinus College, the University of Pennsylvania, and Drexel University. Id. at 1129:25-1135:6, July 8, 2015. Dr. Lentz testified about his analysis of occupational inheritance and the plaintiff-child's measure of economic loss. Id. at 1128:5-1174:22, July 8, 2015. He found that, because the child-plaintiff was "Hispanic," his future economic loss of earnings was lower than that projected by plaintiffs' forensic economist. See Trial Tr. 1140:15-1141:6, 1148:15-19, 1159:16-1160, July 8, 2015. The basis for the assessment was rooted in the following data:
See Daubert Hr'g, Court Ex. 8-F at 5, June 22, 2015 (emphasis added).
The following colloquy took place between the court and Dr. Lentz:
Trial Tr. 1140:15-1141:6, July 8, 2015 (emphasis added).
Taking the court's ruling into consideration, Dr. Lentz ultimately projected that if the plaintiff-child obtained a baccalaureate degree, his total future economic loss would amount to $2,509,542. Id. at 1160:2-6, July 8, 2015. If he earned only a high school diploma, his total future economic loss was projected at $1,384,776. Id. at 1160:7-12, July 8, 2015. A career pursued in the "arts and design" field after earning one or more postsecondary education degrees was estimated to yield $1,522, 067. Id. at 1159:16-23, July 8, 2015.
McMillan ruled on the following question:
McMillan, 253 F.R.D. at 248. The court held:
Id.
The case involved a claim by an "African-American" man injured in the 2003 Staten Island Ferry crash. Id. "[S]tatistical evidence [had been] introduced suggesting that a spinal cord-injured African-American was likely to survive for fewer years than persons of other races with similar injuries." Id. (citation omitted). Three arguments were made by the court in support of its decision to exclude race-based actuarial tables. Id. First, it pointed out that the tables were inadequate as a matter of actuarial science because race is a biological fiction. Id. at 249-50. Second, it found that lifespan variations among races were attributable largely to socioeconomic status, not biology. Id. at 251-52. Third, it held that race-based actuarial tables violated the equal protection and due process clauses of the United States Constitution. Id. at 255-56.
McMillan's full analysis is set out below because the "ethnicity" factor in the present case is treated in the same way as the "race" issue in McMillan.
Id. at 249-256 (citations omitted).
Race-based statistics and other race-centric data cannot be relied upon to find a reduced life expectancy for a claimant in computing tort damages. See, e.g., Anita Bernstein, What's Wrong With Stereotyping, 55 Ariz. L.Rev. 655, 711 (2013) (citing McMillan for proposition that use of race-neutral data in courts has been given legal effect); see also Deirdre M. Smith, The Disordered and Discredited Plaintiff: Psychiatric Evidence in Civil Litigation, 31 Cardozo L.Rev. 749, 821 (2010) (citing McMillan to support argument that use of race-based statistics should be discontinued); cf. Michael I. Meyerson & William Meyerson, Significant Statistics: The Unwitting Policy Making of Mathematically Ignorant Judges, 37 Pepp. L.Rev. 771, 797 (2010) (finding that "the introduction of racially-based DNA numbers into a courtroom proceeding is fundamentally misleading").
In neither the instant case nor McMillan has the court reached the issue of how life, worklife, and educational expectancy tables negatively affect other disadvantaged
Anthony J. Sebok, Ruling Barring the Use of Race in Calculating the Expected Lifespan of a Man Seeking Tort Damages: An Isolated Decision, or the Beginning of a Legal Revolution?, Oct. 22, 2008, http:// writ.news.findlaw.com/sebok/20081022.html (last visited July 28, 2015); cf. Roberts v. United Parcel Service, Inc., 115 F.Supp.3d 344, No. 13-CV-6161, 2015 WL 4509994 (E.D.N.Y. July 27, 2015) (surveying the lack of federal protections for gays and lesbian in the workplace); Mark L. Hatzenbuehler et al., Structural Stigma and All-Cause Mortality in Sexual Minority Populations, 103 Soc. Sci. & Med. 33 (2014) (finding in study with small sample size that life expectancy of lesbians, gays, and bisexuals living in communities with high levels of anti-gay prejudice is twelve years shorter than for those living in low prejudice communities); Center for American Progress, et al., A Broken Bargain: Discrimination, Fewer Benefits and More Taxes for LGBT Workers 7, 34 (June 2013) (finding "gay and bisexual men experience a `wage penalty' relative to heterosexual men[,]" and "[l]esbian and bisexual women actually fare better than heterosexual women, but still experience the gender-based wage gap relative to all men"); Amicus Brief of Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders in Support of Petitioners at 26-27, 2015 WL 981538, Obergefell v. Hodges, 135 S.Ct. 2584 ("LBGT people are under-represented at the top of the income pyramid and over-represented at the bottom." (citations omitted)); Amicus Brief of Organization of American Historians at 23, 2015 WL 1004709, Obergefell, 135 S.Ct. 2584, ("A 2012 survey of homeless youth providers discovered that almost [forty] percent of the homeless youth they serve identify as lesbian, gay, bisexual, or transgender." (citing Laura E. Durso & Gary J. Gates, Serving Our Youth: Findings from a National Survey of Service Providers Working with Lesbian, Gay, Bisexual and Transgender Youth Who Are Homeless or At Risk of Becoming Homeless, The Williams Institute (2012))).
Economic data that is minority-specific saddles those who do not conform to the data with adverse generalizations about their group, "the very kind of stereotyping that antidiscrimination laws were meant to prohibit." Martha Chamallas, Civil Rights in Ordinary Tort Cases: Race, Gender, and the Calculation of Economic Loss, 38 Loy. L.A. L.Rev. 1435, 1439 (2005) ("Chamallas I"); see also Elizabeth Adjin-Tettey, Replicating and Perpetuating Inequalities in Personal Injury Claims Through Female-Specific Contingencies, 49 McGill L.J. 309, 311 (2004) (arguing that, when judges sanction the awarding of depressed damages to tort claimants from historically disadvantaged groups, they reinforce the marginalization of minorities in society).
"[W]hen damages for injuring members of minority groups are lowered, the legal regimen [has] the perverse result of encouraging torts against them." Meyerson & Meyerson, supra at 808 (citation omitted). Seemingly "neutral tort rules" become a mechanism for replicating the "unequal status quo," making it "more difficult for disadvantaged social groups to bring
Meyerson & Meyerson, supra at 801-07 (emphasis added).
Smith, supra at 822; see also Joanna Shepherd & Paul H. Rubin, The Demographics of Tort Reform: Winners and Losers 1-8 (2007), https://www.law.umich. edu/centersandprograms/lawandeconomics/ workshops/Documents/Winter2007/shepherd.pdf (last visited July 28, 2015) ("By limiting certain types of damages relative to other damages, tort reform may disproportionately reduce damage payments to specific segments of the population[, including] women, children, the elderly, and less affluent members of society. . . [and] many disadvantaged minorities."); Joanne Doroshow & Amy Widman, The Racial Implications of Tort Reform, 25 Wash. U. J.L. & Pol'y 169 (2007) (stating that tort reforms, such as monetary caps on damages or removing access to juries in medical practice cases, will have a greater adverse impact on minority communities).
Economists and rehabilitation experts generally rely on gender-, race-, and ethnicity-based statistics to determine loss of earning capacity in lead paint cases to the detriment of racial and ethnic minorities. See, e.g., Greenberg, supra at 430 ("Using race-based statistics reinforces the current racial discrimination in the workforce, ignoring the possibility and the social value of upward mobility."); see also supra Part III.B (recording the expert testimony in the instant case). The use of such data results in significantly lower awards for "Hispanics," replicating historical patterns of discrimination in tort awards. Greenberg, supra at 430 ("Lead paint plaintiffs—young, poor and often African-American or Hispanic—are disadvantaged by the traditional determinations of loss of earning capacity."). Professor Martha Chamallas has described the phenomenon as follows:
Chamallas I, supra at 1440-41. The unacceptable result is: "[B]ecause it is cheaper to injure poor minority children, there is less incentive for defendants to take measures to clean up toxic hazards in the neighborhoods most affected by lead paint." Id. at 1441 (emphasis added).
The history of the classifications used by the United States Census Bureau ("Census Bureau") and the geopolitical landscape of the mid-twentieth century show how and why ethnicity generally, and the term "Hispanic" specifically, is a social and fluid concept, similar to race.
The United States conducted its first census in 1790. See Census Bureau, History-1790, http://www.census.gov/history/ www/through_the_decades/index_of_questions/1790_1.html (last visited July 28, 2015). Although questions concerning the conducting of the census persisted throughout the mid-eighteenth and nine-teenth centuries, it was not until 1930 that individuals of Latino origin were separately considered. See Census Bureau, History-1930, http://www.census.gov/history/ www/through_the_decades/index_of_questions/1930_1.html. In 1930, the option of "Mexican" as a "race" was made available for selection. Id.
Then, in 1935, the District Court for the Western District of New York denied citizenship to an individual of Mexican heritage. In Re Timoteo Andrade, No. 2272-P-24049, slip op. at 2 (W.D.N.Y. Dec. 11, 1935). Following the district court's decision, the United States Department of State, the Mexican government, and Mexican-American civil rights activists worked together to neutralize the ruling pursuant to the recently-adopted "Good Neighbor Policy." See Patrick D. Lukens, A Quiet Victory for Latino Rights: FDR and the Controversy over "Whiteness" (2012); see also Department of State, Good Neighbor Policy (1993), https://history.state.gov/ milestones/1921-1936/good-neighbor (last visited July 28, 2015) ("Good Neighbor Policy" provided that "No state shall intervene in the internal or external affairs of another[,]" and was designed to improve relations among countries in the Western Hemisphere). Implemented was an administrative policy whereby Mexicans and Mexican-Americans would, from that point forward, be classified as "White." Id. The notion of Latino or Hispanic as an ethnicity was born. Id.; cf. Jenny Rivera, An Equal Protection Standard for National Origin Subclassifications: The Context That Matters, 82 Wash. L.Rev. 897, 901 n. 20 (2007) ("The term `Latino' represents the experiences and histories of persons of Latin American and Latino Caribbean descent. The term `Hispanic' is representative of Latin America's connections and history as it relates to Spain and Europe exclusively[.]").
Today, both race and ethnicity appear in the United States Census. The terms are defined as "self-identification data items." See Census Bureau, Race, http://www. census.gov/topics/population/race/about.html (last visited July 28, 2015). In a
The federal government treats race and ethnicity for statistical purposes to be two separate and distinct concepts. Id. at 1. The Merriam-Webster Dictionary defines race as "a category of humankind that shares certain distinctive characteristics," and ethnicity as a "particular ethnic affiliation or group," where ethnic is defined as "of or relating to large groups of people classed according to common racial, national, tribal, religious, linguistic, or cultural origin or background." Merriam-Webster Dictionary, http://www.merriam-webster.com/(last visited July 28, 2015).
The Office of Management and Budget ("OMB") defines Hispanic or Latino as "a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race." Grieco & Cassidy, supra at 2. In data collection and presentation, "federal agencies are required to use a minimum of two ethnicities: `Hispanic or Latino' and `Not Hispanic or Latino.'" Id. The racial categories identified by OMB are: "White"; "Black, African American, or Negro"; "American Indian or Alaskan Native"; "Asian Indian"; "Chinese"; "Filipino"; "Japanese"; "Korean"; "Vietnamese"; "Native Hawaiian"; "Guamanian or Chamorro"; "Samoan"; "Other Pacific Islander"; "Other Asian"; and "Some other race." Id.
Using life, worklife, and educational attainment tables premised on OMB's racial and ethnic distinctions has the capacity to disadvantage a plaintiff, such as the child in the instant case, by assuming he would be in a socio-economic group lower than would be predicted by analyzing his real-life background. The below graphics produced by the Census Bureau demonstrate that restricting use of race- and ethnicity-based tables in reducing damages does make a difference:
Table 2-A.
Table 2-A. Median Synthetic Work-Life Earnings by Education, Race/Ethnicity, and Gender: Full-Time, Year-Round Workers Characteristic Synthetic work-life Standard Synthetic work-life Standard earnings error earnings errorHispanic None-8th grade $976,727 $3,152 $704,005 $3,573 9th-12th grade $1,136,694 $5,576 $811,885 $4,993 High school graduate $1,306,747 $6,144 $1,021,242 $4,202 Some college $1,679,364 $7,618 $1,301,068 $7,222 Associate's degree $1,837,607 $14,849 $1,446,134 $11,693 Bachelor's degree $2,080,558 $14,046 $1,701,767 $11,850 Master's degree $2,791,370 $31,625 $2,255,883 $22,522 Professional degree $3,120,466 $107,267 $2,334,295 $67,399 Doctorate degree $3,109,666 $121,372 $2,624,329 $94,510White Alone, Not Hispanic None-8th grade $1,351,121 $9,733 $932,641 $11,554 9th-12th grade $1,443,984 $4,354 $947,568 $4,205 High school graduate $1,690,285 $1,993 $1,183,917 $1,304 Some college $1,985,967 $2,080 $1,406,249 $1,940 Associate's degree $2,086,488 $4,038 $1,607,609 $3,052 Bachelor's degree $2,847,953 $3,827 $2,028,096 $2,958 Master's degree $3,318,658 $6,793 $2,366,374 $4,053 Professional degree $4,754,930 $24,973 $3,200,311 $18,546 Doctorate degree $3,692,684 $19,536 $2,967,826 $18,805Black Alone, Not Hispanic None-8th grade $1,045,580 $19,926 $863,231 $16,216 9th-12th grade $1,124,778 $9,985 $861,353 $5,715 High school graduate $1,340,407 $5,031 $1,070,827 $3,720 Some college $1,601,729 $7,010 $1,308,183 $4,590 Associate's degree $1,724,599 $12,357 $1,463,652 $9,495 Bachelor's degree $2,107,728 $12,238 $1,859,380 $8,642 Masters degree $2,530,574 $25,295 $2,310,171 $12,090 Professional degree $3,521,784 $77,518 $2,847,709 $53,871 Doctorate degree $2,912,750 $69,795 $2,881,587 $67,031Asian Alone, Not Hispanic None-8th grade $1,003,783 $19,132 $864,579 $16,235 9th-12th grade $1,159,638 $16,524 $942,418 $14,461 High school graduate $1,292,822 $10,420 $1,059,678 $7,315 Some college $1,678,196 $14,528 $1,394,305 $11,002 Associate's degree $1,843,014 $18,282 $1,600,797 $17,984 Bachelor's degree $2,437,516 $15,225 $2,061,186 $11,656 Master's degree $3,454,087 $18,621 $2,735,465 $26,871 Professional degree $4,700,782 $91,225 $3,680,543 $106,135 Doctorate degree $3,601,577 $40,889 $3,134,482 $87,894Other, Not Hispanic None-8th grade $1,228,762 $32,412 $848,544 $28,385 9th-12th grade $1,320,118 $27,908 $902,420 $19,700 High school graduate $1,478,622 $12,851 $1,135,015 $10,849 Some college $1,757,852 $21,149 $1,321,789 $10,330 Associate's degree $1,857,056 $26,447 $1,513,536 $18,165 Bachelor's degree $2,381,770 $25,746 $1,866,935 $20,691 Master's degree $2,954,449 $53,872 $2,217,916 $49,229 Professional degree $4,086,575 $246,403 $2,889,210 $160,628 Doctorate degree $3,318,995 $160,809 $2,678,873 $151,809 Note: Synthetic work-life earnings represent expected earnings eve a 40-year time period for the population aged 25-64 based on annual earnings from a single (cross-sectional) point in lime. The estimate was calculated by adding median earnings tor eight 5-year age groups, multiplied by live. Source: U.S. Census Bureau, American Community Survey, 2006-2008.
Tiffany Julian & Robert Kominski, Education and Synthetic Work-Life Earnings Estimates, United States Census Bureau 1, 6, 9 (September 2011), https://www. census.gov/prod/2011pubs/acs-14.pdf (last visited July 28, 2015).
The American Anthropological Association has criticized OMB's practice of separating "race" and "ethnicity":
See American Anthropological Association Response to OMB Directive 15, Race and Ethnic Standards for Federal Statistics and Administrative Reporting (emphasis added); see also Ruth B. McKay & Manuel de la Puente, Cognitive Research in Designing the CPS Supplement on Race and Ethnicity, Proceedings of the Bureau of the Census' 1995 Annual Research Conference 435-45 (1995) (determining that respondents were unaware of the difference between "race" and "ethnicity"); E. Kissim, et al., Hispanic Responses to Census Enumeration Forms and Procedures, Report Prepared for the Bureau of the Census (1993) (concluding that Hispanic respondents view "Hispanic" as a race and look for this category when asked on documents or surveys for their "race"); C.E. Rodriguez & J.M. Cordero-Guzman, Place Race in Context, 15 Ethnic Racial Stud. 523-43 (1992) (same).
The United States Commission on Civil Rights has echoed the criticisms lodged by the American Anthropological Association: "[S]ome people regard `Hispanic' as a race and some do not. Some may refer to a particular individual's Hispanic background as his `ethnicity' and others may reject the term on the ground that it implies something untrue about the individual's cultural traits. . . ." U.S. Comm'n on
Ethnicity, like race, as discussed in McMillan, is a fictitious, changing, and unreliable social construct. See, e.g., Ian Haney Lopez, White by Law: The Legal Construction of Race 7-14 (2006) (tracing legal construction of race and ethnicity through America's legal system); Camille Gear Rich, Angela Harris and the Racial Politics of Masculinity: Trayvon Martin, George Zimmerman, and the Dilemmas of Desiring Whiteness, 102 Cal. L.Rev. 1027, 1028 n. 3 (2014) ("Latinos/Hispanics occupy a liminal space in America's racial paradigm, as many Latinos believe that the term Latino refers to a racial group, and other Latinos treat Latino or Hispanic background as a kind of ethnic designation."); Wendy D. Roth, Race Migrations: Latinos and the Cultural Transformation of Race 4-8 (2012) (examining traditional black and white racial dichotomy in America and how that dichotomy is challenged by considering Latinos as a separate racial category as opposed to an ethnic group).
Yolanda Vazquez, Constructing Crimmigration: Latino Subordination in a "Post-Racial" World, 76 Ohio St. L.J. 599, 657 (2015); see also Anthony V. Alfieri, Objecting to Race, 27 Geo. J. Legal Ethics 1129, 1133-34 (2014) ("Rooted in conscious, unconscious, or implicit bias, race talk often intersects with other categories of bias, including ethnicity and gender. The intersection of multiple kinds of bias in civil rights and criminal cases exacerbates common stereotypes and reinforces long-held prejudices."); Laura E. Gomez, Manifest Destinies: The Making of the Mexican American Race 1-3 (2007) (explaining that the use of the term ethnicity with respect to Latinos masks the historically discriminatory treatment that Mexican Americans have faced as a racial group); Elizabeth Vaquera & Grace Kao, The Implications of Choosing "No Race" on the Salience of Hispanic Identity: How Racial and Ethnic Backgrounds Intersect Among Hispanic Adolescents, 47 Soc. Q. 375, 389 (2006) (noting two-thirds of Latinos in a sample regarded Latino as a racial category); Clara E. Rodriguez, Changing Race: Latinos, the Census, and the History of Ethnicity 16 (2000) (finding that many Hispanics claim "a multiple racial ancestry").
The issue of the plaintiff-child's ethnicity first arose at the trial during the cross-examination of one of plaintiffs' experts. See supra Part III.B.1. The court cut off an attempt to use the child's ethnicity as a projection point for his education, life and worklife expectancies as it related to limiting damages:
Trial Tr. 576:20-577:8, July 6, 2015.
It is unconstitutional in a tort trial to premise projected societal and educational
The court did not have to confront the issue of the applicability of gender worklife expectancy tables because the plaintiff-mother was not physically injured, nor was she in jeopardy of experiencing future economic loss based on any status attributed to herself.
Before 1950, judges generally made "intuitive" judgments about damage awards, allowing "race and racism to have tremendous influence in ways that are nearly impossible to provide." Jennifer B. Wriggins, Damages in Tort Litigation: Thoughts on Race and Remedies, 1865-2007, 27 Rev. Litig. 37, 56 (2007).
A tidal shift started in 1950, when the United States Bureau of Labor Statistics published its worklife tables. See Bureau of Labor Statistics, U.S. Dep't of Labor, Bulletin No. 1001, Tables of Working Life: Length of Working Life for Men (1950); Bureau of Labor Statistics, U.S. Dep't of Labor, Bulletin No. 1204, Tables of Working Life: Length of Working Life for Women (1957). These tables calculated worklife duration "as if it were a simple function of sex and age." Shirley J. Smith, Bureau of Labor Statistics, U.S. Dep't of Labor, Bulletin No. 2254, Worklife Estimates: Effects of Race and Education 2 (1986) ("Bulletin 2254").
Three decades later, in 1982, after completing a comprehensive survey of worklife methodology calculations, the Bureau of Labor Statistics modified its life and worklife expectancy tables. See Bureau of Labor Statistics, U.S. Dep't of Labor, Bulletin No. 2135, Tables of Working Life: The Increment-Decrement Model (1982). As was the case in 1950, "[t]ables were prepared separately for men and women, giving no additional demographic or functional detail by race, educational attainment, occupation, or other characteristics that might distinguish high from low turnover groups." Bulletin 2254 at 2. Innovative was the fact that the 1982 tables "for the first time quantified the impact of midlife labor force withdrawal and reentry on worklife duration," based on observed rates of labor force entry and exit at all ages. Id. at 1.
Publication of the 1982 tables "drew responses from many economists involved in litigation of wrongful injury or death cases." Id. at 1. Several of these responses appeared in the Monthly Labor Review, a publication composed of economists and statisticians, which researches and analyzes a myriad of fields, including the economy and the labor force. Id. at 1, 7 n. 2. The responses led to refinements that were implemented in the Bureau of Labor Statistic's 1986 revisions to the life and worklife expectancy tables. Id. at 1, 7 n. 3.
The Bureau's 1986 tables, Bulletin 2254, presented a new set of official worklife estimates based on data collected between
Id. at 2 (emphasis added). These tables explored, for the "first time," the relationship between "race and educational background," and their effect on "lifetime labor force behavior." Id. at 1.
The tables presented in Bulletin 2254 were subdivided by sex, race, and educational attainment. Id. at 4, 5, 6. The two racial categories displayed were "white (88 percent of the sample) and blacks and others (12 percent)." Id. at 4. "A separate set of tables detail[ed] years of schooling completed, using the categories of less than high school (about 20 percent of the sample), high school graduate to 14 years (about 52 percent of the sample), and 15 years or more (about 28 percent)." Id. The new tables quantified the lifetime relationship between race and labor force involvement. Id. From it the conclusion could be drawn that,
Id. at 4-6.
In the past three decades, the Bureau of Labor Statistics has not revised these still widely circulated life, worklife, and educational attainment tables, reflective of data collected in 1979 and 1980. See, e.g., Lawrence M. Spizman, Bulletin 2254 Worklife Expectancy Tables and Tort Gender Inequality, 12 The Earnings Analyst 1 (2012) (arguing that Bulletin 2254 should not be used because structural changes in the labor market for females have dramatically changed since its publication). According to a 2012 survey of forensic economists, only 4.8 percent of forensic economists use the Bulletin 2254 tables. See Brookshire, et. al., A 2012 Survey of Forensic Economists: Their Methods, Estimates, and Perspectives, 24 J. of Forensic Econ. 67, 86 (2013). This is down from 72.6 percent in the 1991 survey. Id. But see infra Part V.B (discussing New
The Department of Labor no longer publishes life, worklife, and educational attainment tables, but it continues to provide the data on which the tables were based, leaving it to the public to use the data as it deems fit. Id. at 1.
New York law incorporates Bulletin 2254 in deciding damages in tort cases. See, e.g., N.Y. Pattern Jury Instr. Civil Appendix B (2014) ("Tables 1 through 8 in Appendix B are extracted from a report published by the United States Bureau of Labor Statistics, United States Department of Labor, entitled `Report: Worklife Estimates: Effects of Race and Education' (February 1986)."). The state's pattern jury instructions ("PJI") include tables from Bulletin 2254 for use in determining worklife expectancy. Id.; see also Spizman, supra at 2. Appendix A, which provides for life expectancy data, is periodically updated but lags behind the most current life expectancy tables published by Drs. Skoog, Ciecka and Krueger in 2011. See Spizman, supra at 2-3, n. 3 ("Appendix A in the 2012 PJI used [the] U.S. Life Tables from 1999 Vol. 47, No 28 (December 13, 1999)."); see also N.Y. Pattern Jury Instr. Civil Appendix A (2014).
New York's pattern jury instructions contain the following warning regarding the use of Bulletin 2254:
N.Y. Pattern Jury Instr. Civil 2:290 (2014). This statement recognizes the Bulletin's use of outdated data, signaling to parties that they can rely upon damage experts to question the Bulletin's reliability.
The Final Report of the Special Master, Kenneth R. Feinberg, for the September 11 Victim Compensation Fund of 2001 indicated Feinberg's reluctance to rely on gender- and race-based life and worklife tables. See Kenneth Feinberg, Dep't of Justice, Volume 1, Final Report of The Special Master for the September 11th Victim Compensation Fund of 2001 33, n. 109 (2004) (citing James Ciecka, Thomas Donley & Jerry Goldman, A Markov Process Model of Work-Life Expectancies Based on Labor Market Activity 1997-98, 10, 2 J. of Legal Econ. 27 (2000)); see also Chamallas & Wiggins, supra at 155-83 (discussing Special Master Feinberg's refusal to take into account race and gender based statistics when computing damages in the interest of "public policy and equity").
Courts, and the experts testifying before them regarding future economic loss, are less discomforted and careful than Mr. Feinberg, relying daily on race-, ethnicity-, and gender-based statistics, reminiscent of Bulletin 2254, to determine loss of future earning capacity. See supra Part III.B (highlighting testimony of experts in this case); Kurt V. Krueger & Frank Slesnick, Total Worklife Expectancy, 25 J. of Forensic Econ. 51, 53 (2014) ("While gender-based and labor force-based worklife expectancy tables have such discriminatory features, courts and economists have developed a habit of using them."); see also generally Dan B. Dobbs, Paul T. Hayden, & Ellen M. Bulbick, The Law of Torts,
"[T]he willingness of economists and judges to rely on sex and race as a measure of an individual's future earning potential may have as much to do with habit as it does with strict fidelity. . . ." to appropriate economic analysis. See Chamallas & Wiggins, supra at 168.
Chamallas II, supra at 465, 467. For many tort cases, and particularly for lead paint cases, loss of earning potential is the big ticket item of damages, which can make the difference between a modest and sizeable award. See Martha Chamallas, Questioning the Use of Race-Specific and Gender-Specific Economic Date in Tort Litigation: A Constitutional Argument, 63 Fordham L.Rev. 73, 75 ("Chamallas III") (collecting cases).
The use of race-based statistics to obtain a reduced damage award—which is now extended to the use of ethnicity-based statistics, to calculate future economic loss—is unconstitutional. See supra Part IV (discussing McMillan rule and its application). It violates due process because it creates arbitrary and irrational state action, and equal protection, because it subjects the claimant to a "disadvantageous estimate" of damages "solely on the basis" of ethnic classification. Id.
Race and ethnicity are not, and should not, be a determinant of individual achievement. To support such a proposition distorts the American dream, denigrating minorities' chances of climbing the socio-economic ladder. Using these statistics to calculate future economic loss reinforces the rigid racial and ethnic barriers that our society strives to abolish. See infra Part VI.A (discussing affirmative action). Basing an individual's earning capacity on his or her race or ethnicity is "problematic for poor minority plaintiffs because it assumes that racism and classism will exhaust their opportunities in the same way that it may have adversely affected their relatives." Greenberg, supra at 430; see also Patrick Sharkey, Neighborhoods and the Black-White Mobility Gap, The PEW Charitable Trusts: Economic Mobility Project (2009), http://www. pewtrusts.org/~/media/legacy/ uploadedfiles/wwwpewtrustsorg/reports /economic_mobility/PEWSHARKEYv12pdf.pdf (last visited July 28, 2015) (exploring the impact of neighborhood poverty rates experienced during childhood as an important factor affecting the mobility gap).
Propelling race and ethnicity to the forefront of predictions about an individual's future achievement ignores the myriad factors affecting an individual's capacity to fulfill his or her potential. See, e.g., Bulletin 2254 at 2, 6-7 (indicating that access to healthcare likely has a disproportionate impact on minorities and may be a factor affecting worklife duration); Jonathan Kozol, The Shame of the Nation: The Restoration of Apartheid Schooling in America (2005) (examining the negative social and
Race- and ethnicity-based statistics "assum[e] that the current . . . racial pay gap will continue in the future, despite ongoing legal and institutional efforts to make the workplace more diverse and less discriminatory." Chamallas III, supra at 75.
Crosby Burns, et al., The State of Diversity in Today's Workforce: As Our Nation Becomes More Diverse So Too Does Our Workforce, Center for American Progress, 6 (2012), https://cdn.americanprogress.org/ wp-content/uploads/issues/2012/07/pdf/ diversity_brief.pdf (last visited July 28, 2015); see also, e.g., Nat'l Ctr. for Educ. Statistics, U.S. Census Bureau, Policy Alert, Integrated Postsecondary Education Data System, The U.S. Workforce Is Becoming More Diverse, (2005), http:// www.highereducation.org/reports/pa_ decline/decline-f1.shtml (last visited July 28, 2015) (maintaining that the minority portion of the workforce is projected to double from 18% to 37%, creating a more divorce working economy); Bureau of Labor and Statistics, U.S. Dep't of Labor, Women's Earnings: 1979-2012, TED: The Economics Daily Blog (Nov. 4, 2013), http://www.bls.gov/opub/ted/2013/ted_ 20131104.htm (last visited July 28, 2015) ("When adjusted for inflation, women's earnings since 1979 have increased considerably across the major race and Hispanic ethnicity categories.").
Psychologists have adopted an alternative to the use of race- or ethnicity-based statistics: the "resiliency theory" utilizes three distinct processes for evaluating loss of earning capacity.
Greenberg, supra at 454; see also Marc A. Zimmerman, Editorial, Resiliency Theory: A Strengths-Based Approach to Research and Practice for Adolescent Health, 40 Health Educ. Behavior 381, 381 (2013) ("Resiliency theory focuses attention on positive contextual, social, and individual variables that interfere with or disrupt developmental trajectories from risk to problem behaviors, mental distress, and poor health outcomes.") Unlike race- or ethnicity-based statistics, which do not acknowledge a child's ability to persevere through a difficult familial or social upbringing, resiliency theory "starts from the proposition and expectation that there are kids in families from very adverse situations who really do beautifully, and seem to rise to the top of their potential, even with everything else working against them." Greenberg, supra at 454.
Another option that has been suggested is to "consider each person as equivalent to the average, unless evidence is produced which removes the plaintiff from the normal range." Sherri Lamb, Toward Gender-Neutral Data for Adjudicating Lost Future Earning Damages: An Evidentiary
Absent the use of an alternative to raceor ethnicity-based statistics, lead poisoned children will continue to be "inadequately compensated" for their present and future injuries. Greenberg, supra at 457.
Id. Courts cannot accept a principle in awarding damages "that reflect subtle but pervasive racism and classism." Id.
There is a need to revise the current expectancy tables as applied in prospective calculations to lower tort damages for specific communities. See supra Part V.A (discussing history of tables). Various sociological and vocational studies projecting life and earning capacities used by tort experts require review and recalculation. See supra Part V.B (discussing use of tables). A traditional, automatic, unthinking approach by experts in this field can no longer be tolerated. See supra Part III.B (discussing expert testimony in this case).
The reinterpretation of our constitution in recent years and statutory protections regarding minority social groups mandates rejection of bias by our judicial system towards members of such groups. Cf. Obergefell v. Hodges, ___ U.S. ___, 135 S.Ct. 2584, 2588, 192 L.Ed.2d 609 (2015) (holding marriage is a fundamental right and declaring unconstitutional the laws of states that either ban same-sex marriage or refuse to recognize same-sex marriages performed out of state).
Elimination of racial and ethnic differences used to reduce damages to members of minority groups is not inconsistent with using such groupings to overcome the adverse effects of prior discrimination or to assist in providing a more equal role for minorities in our society.
There is "a critical distinction between racial [and ethnic] references that subvert" the Constitution and "racial [and ethnic] references that actually enhance the rationality and fairness" of it. See Jody Armour, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit, 83 Cal. L.Rev. 733, 735 (1995) (arguing that colorblind formalism advocated by courts is counterproductive in reducing discrimination).
Whatever the Supreme Court may decide in cases such as Fisher v. Univ. of Texas at Austin on admissions and aid discrimination in favor of minorities in school administration is not inconsistent with the instant decision. See Fisher v. Univ. of Texas at Austin, ___ U.S. ___, 135 S.Ct. 2888, 2888, 192 L.Ed.2d 923 (2015) (granting certiorari). If the Supreme Court finds affirmative action constitutional in Fisher when affording advantages to minorities by category in a college or law school admissions process, it will be doing so based on policy and goals different from that applied to the damage issues present in the instant case. In the school cases, the policy is to assist minorities. Diversity in schools is arguably a compelling state interest that (1) promotes better educational, occupational and business out-comes; and (2) improves the occupational spreads of specific career pipelines. See
In the case of damages, basing life, worklife, and education probabilities on ethnicity or race tables disadvantages some individual members of the group. Individuals in the group would do better if they were treated as individuals on the basis of their individualized characteristics.
In the past five decades, government and private "affirmative action" programs affording advantages to individuals in ethnic and racial groups have had a checkered constitutional history. Compare Anita Bernstein, Diversity May Be Justified, 64 Hastings L.J. 201 (2012) (concluding that affirmative action promotes the compelling interest of diversity within schools and workplaces), and Reginald T. Shuford, Why Affirmative Action Remains Essential in the Age of Obama, 31 Campbell L.Rev. 503 (2009) (suggesting that affirmative action is necessary to combat the prevalence of minorities attending primarily segregated schools), with Douglass C. Lawrence, Challenging Affirmative Action: Does Diversity Justify Race-Conscious Admissions Programs?, 36 Suffolk U.L.Rev. 83 (2002) (opining that adoption of race-neutral alternatives may better achieve diversity because these policies result in a greater number of minority students on college campuses than race-based affirmative action policies (collecting sources)).
In 1978, the Supreme Court addressed affirmative action in school admissions based on race and ethnicity in Bakke. See Regents of Univ. of California v. Bakke, 438 U.S. 265, 270, 320, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (holding "special admissions program" that denies "specific percentage" of seats in incoming class to white students unconstitutional). The court recognized that "the goal of achieving a diverse student body is sufficiently compelling to justify consideration[s] of race in admissions decisions under some circumstances[.]" Id. at 267, 98 S.Ct. 2733.
Id. at 314, 98 S.Ct. 2733.
In 1980, in Fullilove v. Klutznick, the Court held that the use of modest racial
In 1986, an action was brought challenging a school board's policy of protecting minority employees by laying off non-minority teachers first despite their seniority. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 271, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). The Court concluded that "layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in a serious disruption of their lives." Id. at 283, 106 S.Ct. 1842.
Id. at 282-83, 106 S.Ct. 1842 (emphasis in original) (citations omitted).
In 1987, in United States v. Paradise, the Court upheld the use of strict quotas to remedy the systematically discriminatory practices of the State of Alabama's Department of Public Safety. See United States v. Paradise, 480 U.S. 149, 185-86, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987).
In 1989, ten years after Bakke, affirmative action was ruled "a highly suspect tool." City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (holding state and local affirmative action programs in Richmond, Virginia that sought to set aside thirty percent of city construction funds for black-owned firms was not narrowly tailored to remedy effects of prior discrimination). Affirmative action, the Court found, was subject to "strict scrutiny." Id. at 493, 109 S.Ct. 706. "[T]he purpose of strict scrutiny is to `smoke out' illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool." Id.
Applying the logic of Croson to federal affirmative action programs, in Adarand Constructors, Inc. v. Pena, the Court remanded a case challenging the federal highway program, which gave contractors a financial bonus for awarding subcontracts to companies owned by members of minority groups. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 236-37, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (holding that setting aside thirty percent of city construction funds for black-owned firms was not sufficiently "narrowly tailored to remedy prior discrimination since it [wa]s not linked to identified discrimination in any way"). The Court noted that "the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country" justified the use of race—and ethnicity-based remedial measures in certain circumstances, should they pass strict scrutiny. Id. at 237, 115 S.Ct. 2097.
In 2003, the Supreme Court issued Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). It upheld the University of Michigan Law School's policy that used race as one of
Justice Kennedy's plurality opinion in Parents Involved emphasized that the promotion of racial and ethnic diversity was a compelling state interest:
Id. at 782, 788-89, 127 S.Ct. 2738 (emphasis added) (Kennedy J., concurring); see also Fisher v. Univ. of Texas, ___ U.S. ___, 133 S.Ct. 2411, 2420, 186 L.Ed.2d 474 (2013) (finding universities may continue to use race as a factor in their admissions processes because diversity promoted educational benefits, "but . . . before turning to racial classifications" a university had to prove that "workable race-neutral alternatives [did] not suffice").
The policy goals and problem recognized in affirmative action differs from the policy objective of using race- and ethnicity-based life, worklife, and education expectancy tables when computing fair tort damages. The former seeks to promote diversity in educational and occupational spreads, while the latter seeks to project, as accurately as possible, the potential that a tort victim would have in adulthood (recognizing that to do so in an infant is largely guesswork) had he or she not been harmed by defendant's delict.
Adjusting to this nation's continuing struggle for equal rights and effective equal opportunities for all will require subtle changes in reliance on race-, ethnicity-, or gender-based statistics in individual cases. Each evidentiary ruling needs to
Even when racially-, ethnically-, and gender-based tables have probative force and are therefore relevant, there are instances under Rule 403 of the Federal Rules of Evidence that they may be excluded. See Fed.R.Evid. 403 ("The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.").
There is another factor that may justify exclusion: constitutional and general policy considerations may warrant excluding relevant evidence, as in the instant case with respect to a specific child. In such cases, Rule 403 sometimes needs to be supplemented by exclusions based on policy. See, e.g., Jack B. Weinstein, Some Difficulties in Devising Rules for Determining Truth in Judicial Trials, 66 Colum. L.Rev. 223, 246 (1966) ("It is not possible to produce a system permitting facts to be found with any certitude. Nor is it possible to satisfy fully all the purposes served by our law of evidence since, in particular instances, a rule which aids one end will disserve another. In case of conflict, the court's truth-finding function should receive primary emphasis except when a constitutional limitation requires subservience to some extrinsic public policy.")
This memorandum deals only with the use of race- and ethnicity-based tables to reduce tort damages. It does not address the separate problem of advantaging particular groups or parties by the use of such tables. Cf. supra Part VI (discussing affirmative action cases).
There are instances where statistical life-expectancy tables based on race and ethnicity may be utilized. An obvious instance is in applying them to the rule that juveniles cannot be kept in prison for a non-homicide offense for their full life without parole. See Graham v. Florida, 560 U.S. 48, 50, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding that eighth amendment prohibits the imposition of "life without parole" sentence on juvenile offenders who do not commit homicide); see also Adele Cummings & Stacie Nelson Colling, There Is No Meaningful Opportunity in Meaningless Data: Why It Is Unconstitutional to Use Life Expectancy Tables in Post-Graham Sentences, 18 U.C. Davis J. Juv. L. & Pol'y 267, 288, 292 (2014) (arguing that Colorado's practice of using race-and ethnicity-neutral life expectancy tables "should not be applied to the distinctive group of young people facing decades of incarceration, who are mostly poor and disproportionately black and Hispanic" because they "overestimate the length of life of the juveniles being sentenced"). Use of race-, ethnicity-, and gender-based life tables in such circumstances might benefit a juvenile offender by putting a cap on the sentence imposed. Cf. United States v. Tocco, 135 F.3d 116, 131-32 (2d Cir.1998) (finding that imposition of 435-month sentence of imprisonment for arson homicide conviction, which exceeded defendant's life expectancy when good-time credits were not accounted for, but was slightly less than his life expectancy when good-time credits were considered, did not violate statute requiring jury recommendation for imposition of life sentence).
General ethnic characteristics of an injured person cannot be used to reduce damages in this case.
SO ORDERED.
