Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
Notes
1. Gender and tort damages. Legal scholar Martha Chamallas offers a pointed critique of
the logic of Feldman:
Gender and race have disappeared from the face of tort law. . . . But as in so many
other areas of the law, formal equality on the face of the law of torts bears little
connection to gender and race equity as measured by real-world standards. Most
empirical studies indicate that women of all races and minority men continue to
receive significantly lower damage awards than white men in personal injury and
wrongful death suits.
Martha Chamallas, The Architecture of Bias: Deep Structures in Tort Law, 146 U. PA. L. REV. 463
(1998). Chamallas’s calculations from a 1996 practitioners’ guide to settlement and damages
awards found that damages awards for male plaintiffs “were twenty-seven percent higher” than
those for female plaintiffs. Similar studies in the 1980s by the Washington State Task Force on
Gender and Justice in the Courts concluded that the average award in death cases involving a male
decedent was $332,166, as compared to $214,923 in death cases with a female decedent. A
Washington Post study estimated that damages for the future lost income of an average white 25-
year-old man would exceed those of the average 25-year-old black woman by more than $1
million. Kim Soffen, In One Corner of the Law, Minorities and Women Are Often Valued Less,
WASH. POST, Oct. 25, 2016.
Chamallas also found that courts regularly rely on life expectancy tables that calculate socalled
“work-life expectancy” (i.e., expected work years remaining) on the basis of gender, and
sometimes also race. “[L]oss of future earning capacity,” Chamallas writes, “is typically
measured by estimating the number of years the plaintiff would have worked had she not been
injured (work-life expectancy) and the amount the plaintiff would have earned each year, reduced
to present value.” Id. White men typically have longer work-life expectancies than similarly
aged non-white men and also than similarly aged white and non-white women, in part because
people in these latter categories are more likely to suffer from periods of unemployment.
2. Making Black Lives Matter in tort law. Despite the general rule of applying race- and
gender-based actuarial tables, some judges have rejected their use as unconstitutional. In
McMillan v. City of New York, Judge Jack Weinstein refused to admit evidence of statistical data
suggesting that an African American person was likely to have a shorter life expectancy than a
similarly situated person of a different race. 253 F.R.D. 247 (E.D.N.Y. 2008); see also G.M.M. ex
rel Hernandez-Adams v. Kimpson, 116 F. Supp. 3d 126 (E.D.N.Y. 2015) (Weinstein, J.) (holding
that reliance on a child’s Latinx ethnicity in calculating damages award violated the 14th
Amendment’s due process clause and its guarantee of equal protection of the laws). In McMillan,
Judge Weinstein also cast doubt on the reliability of what he called “race-based statistics,”
arguing that race has little actuarial value. Id. at 250.
Would a better view be that reproducing marketplace race discrimination in the courts
through lower tort awards for lost income is wrong, even if it is predictive? If reliability is the
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