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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.
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.
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 education, resulting in reduced damages in a tort case?
The court held that general ethnic characteristics of the injured person cannot be used to reduce damages. 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.