Wrongful death settlements based on race and gender are capricious and biased

This is a bit of an unusual rabbit hole to drag you down, but it’s one which has come up in the past and there’s been no real resolution to the issue offered thus far. In a large number of civil lawsuits as well as criminal proceedings, determinations of wrongful death or permanent disability on the part of victims frequently results in an award of damages based on the income lost over the expected lifetime of those who are injured or killed. That’s a tricky proposition to begin with because it requires some serious reading of the tea leaves, but much like any insurance claim, there are estimates available to guide the courts. Unfortunately, as this well documented article at the Washington Post explains, defendants often try to push down settlements based on the race or gender of victim.

They begin by citing some truly off-the-bell-curve examples which should aggravate anyone hearing about them. The first concerns a four year old boy living in an apartment which was illegally coated in lead based paint. The resulting lead poisoning left the child unable to ever achieve full adult functionality. The plaintiffs cited reasonable evidence that his lifetime earnings, based on the background of his parents, would have been roughly three and a half million dollars. The defense countered by saying that since the boy was Hispanic is chances of getting accepted to a school offering an advanced degree were statistically less, so they offered less than half that amount.

As the author goes on to demonstrate, this isn’t some aberration in the legal system, but far more often the norm. And it crosses lines of both race and gender. Note the emphasized portion of the excerpt below.

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.

You may find room to quibble over individual settlements in some of the cases which fall into this category, but when the “value” of a male fetus is nearly twice that of a six year old girl from the same family something has gone seriously off the beam.

Fortunately, this is one of those situations where a solution is available and shouldn’t be that hard to implement on a state by state basis as well as at the federal level. We develop actuarial tables for insurance purposes all the time and it’s a system which, while imperfect, has served us fairly well. Those tables also require a lot of guesswork since they involve estimating when someone is going to die. It shouldn’t be all that hard to generate some sort of averages for income taking regional variations in wages into account. When you’re talking about adults who are already established in their career path you clearly have to take that factor into consideration and it will be a bit more involved than in the case of kids. (A brain surgeon in Boston is going to earn more on average over the course of their life than someone stocking shelves at a convenience store.) But trying to vary that further because women earn a bit less than men in that particular field or black resident specialists are less likely to be hired at Johns Hopkins than their white peers is both speculative and, frankly, insulting. It shouldn’t be impossible to generate one estimate based on profession for a given area which serves as an average.

When it comes to children (including the unborn) it may be even simpler. Just because both of the parents have medical degrees that doesn’t mean the child won’t decide to become a stand-up comic and fail at it miserably. If neither the mother nor father made it through college we can’t say that the child wouldn’t have excelled and become a lawyer. Surely each region could have an average lifetime earnings estimate for all residents with no regard to gender or race and the courts could be provided with those figures as a guideline for settlements.

This is an offensive situation and it’s one which could be fixed with a bit of effort on the part of state legislatures and the Congress. What say we defy our normally dismal expectations of our elected officials and actually get this done?


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