Race is off-limits factor in wrongful death case

From: Federal Judge Blasts Use of Statistics on Race to Set Damages in Ferry Crash, Anthony Lin, New York Law Journal, October 15, 2008


A Brooklyn federal judge has slammed the use of statistics showing racial differences in life expectancy to determine damages for a catastrophically injured black man.James McMillan was rendered a quadriplegic in the 2003 crash of the New York City-operated Staten Island Ferry. Last month, Eastern District of New York Judge Jack B. Weinstein awarded McMillan damages of $18.3 million.

The city had sought to limit McMillan's damages on a number of grounds, arguing that his past criminal records as much as his race indicated a shorter life expectancy. But Weinstein indicated during trial he would issue a written decision further explaining his reasoning on the race issue.

Issuing that decision Tuesday, Weinstein said the consideration of statistical differences in life expectancy among races in determining damages would be discriminatory and unconstitutional. He noted that a wrongheaded insistence on immutable racial differences had been behind the U.S. Supreme Court's infamous decision in Plessy v. Ferguson, 163 U.S. 537 (1896), which upheld racial segregation under the doctrine of "separate but equal.""Statistical reliance on 'race' leads to such questions as whether Plessy would have been today categorized as 'African American' for life expectancy purposes,"

Weinstein wrote. "In a more recent example, 'racially' characterizing for statistical purposes in a negligence lawsuit the current Democrat Party presidential candidate, born of a 'White' American mother and an 'African' citizen of Kenya, would be considered absurd by most Americans."

The judge also said racial statistics should be rejected on scientific grounds, and he approvingly cited a number of well-known anthropologists who regard race as a social construct rather than a biological fact."Reliance on 'race'-based statistics in estimating life expectancy of individuals for purposes of calculating damages is not scientifically acceptable in our current heterogeneous population,"

Weinstein wrote in McMillan v. City of New York, 03 civ. 6049.Though the judge acknowledged a documented mortality gap between blacks and whites, he said the gap likely owed much to socioeconomic factors masked as "race."

He noted some studies indicating that blacks and whites of equivalent socioeconomic status enjoyed similar longevity.Weinstein said that courts had increasingly moved toward race- and gender-neutral calculations of damages, and observed that racial differences were ignored by Special Master Kenneth R. Feinberg in his administration of the federal September 11th Victim Compensation Fund.The Corporation Counsel's Office declined to comment on Weinstein's decision.

Where to get life care cost data

Survey data for cost of services, supplies, durable medical goods and equipment. etc. has been collected annually by MediSys, Inc., for over 15 years.

Among the companies surveyed are:
Apria Medical
Alamo Mobility
APC Home Care
Girling Health Care
Central Texas Rehabilitation Associates
Columbia Case Management, Inc.

Life care planners in their own words

How do life care planners determine the cost of medical services and future medical care needs for injured plaintiffs? Here is an interesting exceprt from a life care planner deposition in Madison, Iowa.:



Page 1

13 Now, one of the things you indicate here is that
14 the current cost data represents the fair market value of
15 goods and services in the geographic domain where the
16 majority of care is anticipated. Is that where those
17 figures come from?
....
23 A. Right.
24 Q. -- represents the fair market place for goods and
25 services in a geographic domain where the majority of care

Page 2
1 is anticipated.
2 A. Yes, sir.
3 Q. Is that what was used here?
4 A. Well, actually, we used the Madison, Iowa and
5 surrounding area where we expected the majority of her
6 specialty care to be performed.
7 Q. And where -- where do I get that data from the
8 Madison, Iowa area regarding costs or services?
9 A. Those things in which it's tied to a geographic
10 factor, such as Physicians' Fee Reference, where we have
11 physicians' service and therapeutic services and
12 diagnostics are geographically adjusted. For my inpatient
13 hospitalizations, we're using 75th percentile for the
14 nation, because the nation is broken in 11 regions
15 throughout the United States and then bundled. And so
16 we're representing the 75th percentile; that's Solucient.
17 The Physicians' Fee Reference is what has the
18 geographical adjustments. So physicians' services,
19 surgeons' services, psychological services,
20 physical/occupational therapy services and all the
21 diagnostic services, anything that CPT code generated is
22 adjusted for the geographical factor.
23 Q. You said you use a 75th percentile?
24 A. Seventy-fifth percentile for both: the
25 professional services and hospitalization. I'll let you

Page 3
1 know, by the way, Solucient has been acquired this year by
2 Thomson. Thomson Healthcare Corp. If you're going to do
3 a research on it.
4 Q. Thomson Healthcare Corp?
5 A. Thomson Healthcare something; I'll have to go
6 back and get it. Just renewed our data with them and are
7 going through evaluating it again.