Judge Jack Weinstein's 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?
	By ANTHONY J. SEBOK
	Wednesday, Oct. 22, 2008

The Facts of the Case and the Context of Judge Weinstein's Opinion

James McMillan is one of the many people who were injured when one of the Staten Island ferries ran full speed into a pier on October 15, 2003. (There were also a number of fatalities.) The incident led to a suit against the City of New York, which operates the ferry, and the litigation has taken a number of interesting twists and turns. For instance, the City attempted to use arcane doctrines of admiralty law to drastically limit its liability-but failed. Ultimately, the City was found liable and Judge Weinstein has been working through the damages cases of the many victims.

McMillan was completely paralyzed in the legs and partly in the arms. An advisory jury empanelled by Judge Weinstein recommended an award of $18.3 million for his past and future economic and non-economic losses. In the course of making its argument about McMillan's damages, the City tried to introduce evidence about McMillan's future life expectancy based on his sex (male) and race (Black). However, Judge Weinstein suggested from the bench that he found the use of race in calculating expected damages problematic. A few weeks later, he issued an opinion barring race-based life-expectancy calculations.

Why Judges Have, In the Past, Allowed Race to Be Taken Into Account In Damages Calculations - and Why It's Been Controversial

Many readers may be very surprised to learn that traditionally, courts have used, or allowed juries to use, race when determining damages in civil cases. One reason for this is that, generally, courts grant parties very wide latitude when deciding what evidence the factfinder can see - as long as it is relevant to the question before the jury, and it does not inflame the jury's prejudices. (For instance, evidence of past criminal activity, even if relevant, might still be excluded in determining damages in a civil case, on the ground that such evidence would be unfairly prejudicial).

Of course, Judge Weinstein was well-aware of the traditional practice of allowing race-based evidence of life-expectancy when he asked the parties to brief the question of whether he or his advisory jury should use race-based actuarial tables when calculating McMillan's damages. But, as his September 3, 2008 order to the parties indicated, Judge Weinstein also knew that the use of race-based tables has come increasingly under attack.

Most notably, in virtually every state, the use of race-based actuarial tables in the pricing of insurance (auto, life, etc.) has been prohibited by statute. Moreover, various courts have refused to use such tables in the calculation of damages. And analogously, after public criticism led by the NOW Legal Defense Fund, the Special Master of the September 11th Victim Compensation Fund reversed his decision to use gender-based actuarial tables to calculate the lost earnings of those killed on 9/11 in determining their families' compensation.

So Judge Weinstein's decision to reject race-based actuarial tables is not unique. It is one chapter in a long struggle that will have to be resolved by each state system and the federal system deciding for itself whether the goals of the tort law require-or forbid-the use of race-based actuarial tables.

The Argument in Favor of Using Race-Based Actuarial Tables In Damages Calculations

The argument for using these tables is simple, and was once taken for granted. Every first-year Torts student learns that the defendant "takes his victim as he finds him." This simple slogan reflects a number of controversial and profound moral assumptions. For example, a defendant cannot seek the protection of the court if it turns out that his victim is more delicate than he expected. For example, suppose the defendant has carelessly tripped a person who - unbeknownst to anyone -- turns out to have a "glass jaw," such that his fall results freakishly in total paralysis. In such a case, even though virtually any other such fall would result at most in a broken jaw or a cut lip, the defendant must pay for the damage he caused (paralysis) not the damage he would have foreseen causing.

Conversely, if a defendant injuries someone whose future life prospects are more limited than those of the average person, he can benefit from that stroke of luck. A careless driver who runs over a retired person will almost certainly pay less in the subsequent tort suit than if he had run over a young, high-earning doctor with a non-working spouse and children. Even the Special Master of the September 11th Fund recognized this: Families who lost a breadwinner who was a high-earning bond trader or who had multiple dependents received more than, for instance, the families of an unmarried janitor.

The Argument Against the Use of Race-Based Actuarial Tables in Damages Calculations

Drawing on this type of precedent and tradition, the City of New York argued in the McMillan case that it should pay for McMillan's actual future expenses, to the extent that they were determinable. To determine his future expenses, one would have to know how much medical care he would need, how much pain and suffering he would experience and how long he was expected to live. Judge Weinstein agreed with the City's approach to the first and second element of the damages calculation, but not the third, which took race into account via actuarial tables.

(Interestingly, regarding the first point, future medical care expenses, Judge Weinstein held that the City's expert, who testified that McMillan would not need a nurse 24 hours a day, seven days a week, was more credible than McMillan's expert. This ruling is interesting as it illustrates that Judge Weinstein is not reflexively pro-plaintiff; he is looking to do the right thing.)

In support of his decision to exclude the race-based actuarial tables, Judge Weinstein made three arguments. First, he argued that the tables at issue were inadequate as a matter of actuarial science. He reasoned that, if the purpose of an actuarial table is to predict the lifespan of a person based on their objective features, then the features one uses must be fixed and identifiable. Yet Judge Weinstein cited numerous anthropological studies that argue against the idea of race as a fixed and immutable category. Given the history of America, he pointed out many Americans have mixed parentage, with varying proportions of "White" European genes and "Black" African genes (as well as genes from populations that lived in other parts of the world, such as Central and South America, the Pacific, and Asia). Race, he concluded, is thus a "biological fiction."

Second, Judge Weinstein argued that most lifespan variation among the races is due to socio-economic factors, not biology. Since socio-economic status can change, he further argued that it would be mere speculation for the court to assume that McMillan's lifespan would have remained on the trajectory predicted by his race. After all, but for the ferry accident, his socio-economic status might have changed.

Third, Judge Weinstein held that it would be a violation of the Equal Protection Clause of the Fourteenth Amendment -- as well as inconsistent with Congressional intent, as indicated in statutes like Title VII, the main federal anti-discrimination statute -- for the federal courts to use race to distinguish between the tort damages to which McMillan was entitled. His constitutional argument relied primarily on the academic writings of Prof. Martha Chamallas, who has put forth this argument in the context of differential tort damages based on gender and race. Judge Weinstein anchored his Due Process argument upon the notion that the Constitution elevates a citizen's property interest in tort damages because the property in question is paid as redress for a violation of a private wrong. Citing my co-author Prof. John Goldberg, he contended that the right to such redress is something the Founders took as seriously as even the rights to free speech or freedom of religion.

Judge Weinstein Gave Powerful Reasons for His Decision - But They Either Prove Too Little or Too Much

Judge Weinstein, who truly has earned the title "maverick," does not do things halfway. McMillan is a short but very important decision. It sets out a challenge that will have to be met by judges who choose to continue to use race-based actuarial tables. Moreover, the reasons Judge Weinstein cited in support of his decision (as listed above) are powerful-but as I will argue, they either prove too little or too much.

First, it is worth noticing that Judge Weinstein did not go as far as he could have in McMillan in two respects. First of all, Judge Weinstein did not hold that race-based actuarial tables could not be used when calculating future earnings, as opposed to when calculating lifespan. This was because, as the judge noted cryptically, McMillan made an apparently tactical decision to forego suing for loss of earnings "to avoid evidence of reduced earning capacity that might have prejudiced his case." Typically, actuarial tables are used not just to predict lifespan, but differences in earnings by gender and race over the same lifespan. But McMillan's tactical decision allowed Weinstein to avoid that reality - which was the 800-pound gorilla in the room.

Second, Judge Weinstein did not explicitly bar the use of gender in the McMillan case. Perhaps if the question had been directly before him, he would have done so. After all, he approvingly cited the Ontario Supreme Court, which has barred the use of gender-based actuarial tables in the determination of tort damages. In my view, Judge Weinstein should have reached the question of gender. If he truly wants to articulate a principle that would remove impermissible discrimination from the calculation of tort damages, I believe it is incumbent on him to anticipate and answer the obvious question: If race cannot be used, what about gender? Statistically, both are correlated with dramatic differences in lifespan and earnings.

One reason that Judge Weinstein may have wanted to duck the question about gender is that it is much harder to argue that gender, as a category, is not fixed and identifiable-in contrast with race. Of course, there are transgendered persons who identify with a sex other than their biological sex, but they are statistically few. Thus, actuarial tables are based on data on biological sex, not gender identification. And unlike with race, the question of biological sex is not blurred by any equivalent of "intermarriage." No person is biologically 70% male but 30% female.

Thus, Judge Weinstein's first argument - the argument that racial categories are so complex, inaccurate, and reductive as to be unreliable -- cannot resolve the parallel question of the use of gender-based actuarial tables. But what about his second and third arguments?

The problem with the second argument - that the real causal force regarding differences in lifespan is socioeconomic factors, not race -- is that it does not prove enough. All it proves is that race is a bad basis for predicting the future. It does not prove that other factors-such as socio-economic status-are also bad predictors of future lifespan, and should not be used instead.

Granted, Judge Weinstein argued that increased health care-resulting from increased income and better health insurance-might improve McMillan's expected lifespan. That is true, but irrelevant. That can be said about any aspect of a person whose future prospects are being evaluated in a tort case. McMillan's future health prospects could also be improved if he were to receive a lot of money from an unexpected source, such as an inheritance, or an unexpected windfall in the job market. So what? The job of the factfinder, when determining damages, is to base its prediction on the facts that are available at the time of the lawsuit.

If McMillan's socioeconomic prospects were such that, when his case went to trial, his health prospects were objectively worse than the average person, then the lifespan used in the calculation of his damages should reflect that objective socio-economic fact. That is the hard truth that every tort plaintiff faces. It is the flip side of the slogan that the defendant has to take the plaintiff as he finds him; the plaintiff must take his life situation as it was prior to the tort, not as he might have wished it had been.

In the end, I suspect that the only argument that really can sustain Judge Weinstein's ambitious goal in McMillan is his third argument - based on a mix of the Constitution's antidiscrimination mandate and its emphasis upon the importance of the right to civil damages. This argument is extremely sweeping, and has the problem of having never actually been adopted by any American court. It may be the case that it is unconstitutional to use race or sex in the determination of tort damages, but Judge Weinstein's brief reference to this argument-notwithstanding the law review articles he cites-needs to be developed more fully. Perhaps that is Judge Weinstein's next project.

Anthony J. Sebok, a FindLaw columnist, is a Professor at Benjamin N. Cardozo School of Law in New York City. His other columns on tort issues may be found in the archive of his columns on this site.