Recent Decision Rejects Ethnicity As A Factor For Determining Future Lost Earnings

Contributed by Christopher D. Barraza.

When it comes to proving damages in a case where future lost earnings are at issue, there’s a familiar cadence: the plaintiff puts on evidence that seeks to maximize potential future earnings and the defense rebuts with evidence that minimizes future earning potential, sometimes relying on statistics and data concerning race and ethnicity.  Given the recent decision by Judge Weinstein in G.M.M. v. Kimpson, 2015 U.S. Dist. LEXIS 99715 (E.D.N.Y. July 29, 2015), that familiar cadence may change.  In Kimpson, Judge Weinstein concluded that it is unconstitutional to use race and/or ethnicity to challenge economic loss claims.  If followed by other courts, the decision could dramatically impact the calculation of future lost earnings.

The background: a mother sued in tort on behalf of herself and her child claiming injury to the child’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 jury found that the apartment contained lead-based paint that had not been properly removed or encapsulated. The total verdict in favor of plaintiffs was $2,005,000.  Id. at *2.  At the time of trial, the child was less than four years old.  Determining damages required ascertaining the child’s prospects for obtaining post-secondary education degrees had he not suffered from lead poisoning.  The defense argued, 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.  Id. at *2-*3.  The court, however, concluded that “It is unconstitutional in a tort trial to premise projected societal and educational achievements on race or ethnicity to reduce tort damages… General ethnic characteristics of an injured person cannot be used to reduce damages.”  Id. at *53, *79-*80.  The decision is striking because instead of simply ruling that use of ethnicity was improper under the circumstances, it reached a far broader conclusion that it is unconstitutional, full stop, to consider rice or ethnicity when calculating tort damages.

One could dismiss the result in Kimpson as a district court one-off; however, given the prominence of Judge Weinstein, and further given his detailed analysis (which we have omitted for the sake of brevity), it is conceivable that other courts may follow Kimpson in instances where ethnicity is used to challenge calculations of future lost earnings in tort cases.  More broadly, Kimpson could be construed to bar the use of race-based statistics in calculating damages in cases outside of tort.

It remains to be seen if other courts will follow Kimpson; regardless, litigants should familiarize themselves with the decision and its analysis because the ruling will almost certainly appear in future cases where ethnicity and race are at issue when calculating damages.