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.

Value of housework by gender, income, and race

In injury and death cases, the value of lost household work that would have been performed by the injuried or deceased is frequently an issue. In these cases, the value of the lost household work is determined by first calculating how many hours the person would have normally performed. Second, the market value of the lost household services experienced by the person is calculated. The market value of the household services is determined by the average hourly wage of individuals who perform similar services in the labor market. The total value is found by multiplying the value and number of hours performed.

The question is does the person's gender, income level, and race matter in the calculation?

The answer is yes, yes, yes.


In a Princenton working paper titled: Does Household Work Matter Anymore?
Comparisons of Household Production and the Distribution of Income in the United States
in 1965-66 and 2003' the authors, Cathleen D. Zick, Ph.D., W. Keith Bryant, Ph.D., and Sivithee Srisukhumbowornchai, M.S. provide some insights.

They find that the value of household production is:

* higher for women
* decreases as income goes up (less hours worked)
* African-American and Hispanic males have fewer household production hours
* Hispanic females work more household production hours

See also:


Bryant, W.K., C.D. Zick, and H. Kim. 1992. The dollar value of household work. Ithaca, NY:
Conrell University, College of Human Ecology.

livingto100.com:New life expectancy calculator

This calculator can be used to provide lifestyle adjusted life expeactancy estimates. The problem is that it may be too detailed for forensic economics purposes. Some of the questions, like 'how do you deal with stress', would not answerable in many wrongful death suits. Liberal estimates could be made by assuming the best case. Still a helpful tool,

Military Survior Benefits are Increasing

As of March 2008, if a military member died under the old rules the surviving spouse then received 35% of his retirement pay. Under the new rules, that spouse now will receive 55%.


Details (from retirement planner newsletter):

As March came to an end so did the Survivor Benefit Plan (SBP) Social Security Offset. As a result of Public Law 108-375, the Social Security Offset for annuitants was eliminated effective April 1, 2008. The law provided for a phased-in elimination which began October 1, 2005, and ended March 31, 2008, with the last Social Security Offset deduction. Prior to October 2005, at age 62 the SBP annuity was reduced because the beneficiary became eligible to receive the retiree’s Social Security benefits.

Effective April 1, 2008, annuitants that had their annuity reduced by the Social Security Offset now have the offset removed. Annuitants that were eligible for the minimum annuity percentage of 35 percent prior to October 2005 are now entitled to the full 55 percent of the base amount. Annuitants who were receiving the Supplemental Survivor Benefit in addition to the basic benefit will also be paid at the new rate of 55 percent. The minimum annuity percentage is now 55 percent for all annuitants.

For example: with a $1,000 base amount the annuitant should see an increase in monthly annuity to $550 (55% x $1,000).

Calculating economic damages when death is imminent

Q: In a case where a person is diagnosed with a terminal condition, such as mesothelioma – and who has 12 to 24 months to live at the most. Would you treat this as a personal injury case or a wrongful death case?

[Note: The issue revolves around the fact that in personal injury cases, the economist would need to remove personal consumption from the damages. Personal consumption factors would make the final damages number anywhere from 10 to 40% lower in a PI case than a wrongful death case]

A: Here are some responses from a popular forensic economics list serv:

1. you don't have a choice. He is not dead. What you have is a 'lost years' case, assuming the defendant was the cause of his current condition.
2. Yes. Deduct consumption starting at when the docs say he is likely to die. Or give alternatives based on l. e. of both 12 and 24 months. ( Try to get a doc's opinion on how long he is likely to be able to work, perform household services, etc. If unable to get that, assume conservatively that he will be able to keep going until he dies
3. ....How one defines short is problematic, but the FE need not be concerned with this definition if GIVEN a probability of death within two years. As has been repeated on this list several times, one way to avoid a plaintiff bias in such a case is to run two separate but linked columns on your spreadsheet with a crossover to ascending and descending column for values during life and death in any given year....

Measuring undocumented Mexican worker wages: Collecting information

For Mexican undocumented worker cases, specialized and more specific work life expectancy estimates for the injured or deceased worker can be constructed using the methodology in research such as: 'How Long Do Mexican Migrants Work in the U.S.?', Journal of Forensic Economics 19(2), 2006, pp.217-229.

However there is some data and information that must be collected about the deceased or injured undocumented worker that is not routinely collected in injury and death cases. The check list of items to collect in undocumented worker cases is below.


* Gender
* Age
* Maritial status
* Years of education (home + U.S)
* Does the worker have familiy in U.S.?
* Was the injured or deceased involved in sports or social organizations prior to the injury?
* Injured or deceased does not BOTH speak and read english
* Individual was earning more than minimum wage at time of injury
* Person is legalized or authorized worker
* City in U.S. in which they lived
* Date of migration
* Total years in U.S