Academic journal article Vanderbilt Law Review

For What It’s Worth: The Role of Race-And Gender-Based Data in Civil Damages Awards

Academic journal article Vanderbilt Law Review

For What It’s Worth: The Role of Race-And Gender-Based Data in Civil Damages Awards

Article excerpt

(ProQuest: ... denotes formulae omitted.)


Death and taxes, arguably may be certain; statistics, though often a valuable predictive aid, usually are not.

-Judge Bruce M. Selya1

Following months of behavioral problems, hyperactivity, and intermittent complaints of headache and nausea, five-year-old Kelsey Craig’s mother finally takes her to the pediatrician to determine the root of the problem. After multiple consultations, a blood test shows a surprising culprit: there is a dangerously high amount of lead present in Kelsey’s blood, suggesting prolonged exposure to the irreversibly toxic substance. Upon returning to their older, prewar apartment building, Kelsey’s mother passes a neighboring family in the hallway and woefully relays the tale of her diagnosis. The neighbors’ eyes grow wide as they realize their own five-year-old son has been experiencing the very same symptoms. They immediately take him to the doctor and a blood test confirms their fears: the child’s lead levels are through the roof.

A later inspection shows the toxic substance is present in dangerously high levels in multiple units throughout the apartment building. Amongst the affected tenants are five-year-olds Kelsey, John, and shaun, who each suffer identical injuries and resulting permanent impairment. Kelsey is a Caucasian female with aspirations of becoming a scientist; her single mother works as a server at the local diner and is currently pursuing her GED. John is an African American male with dreams of following in his parents’ footsteps by becoming a doctor. Shaun is a multiracial male who was adopted at birth; his parents each hold doctorate degrees and are professors at the local university.

At trial, the jury quickly finds the landlord liable for his negligence in failing to detect and otherwise remove the toxic leadbased paint from the walls of the building. However, when it comes time to award damages according to standard calculations based on life expectancy and future lost earnings, the jury is at a loss. Should Kelsey receive a smaller award than John and Shaun because she is a female, and the average female earns less than the average male?2 Should Shaun and John receive more than Kelsey because their parents are highly educated and receive a higher salary than Kelsey’s single mother?3 Or should Kelsey receive more than both Shaun and John because she is Caucasian and, statistically speaking, Caucasian people earn more than African Americans and people of mixed racial descent?4

The gut reaction is certainly not-determining damages based on these race-specific and gendered classifications would only perpetuate existing systematic discrimination. These are simply fiveyear-old children, and given their identical injuries and impairment, they should receive equivalent awards. Awarding Kelsey less because of her gender or awarding Kelsey more because of her race immediately implicates constitutional concerns and issues of impracticability.5 Arguably, equal protection and due process are not vindicated through a determination of worth based on race or gender. The very idea raises a red flag by permitting the determination of a person’s worth to be predicated on innate phenotypic characteristics beyond their control.6 Further, even if these applications are constitutional, how could they be accurately and consistently applied to all persons to guarantee a sound result throughout the state and federal court systems?7

However, consideration is also owed to those adversely affected by the exclusion of such data. From a defendant’s standpoint and through a corrective justice lens, the goal of the tort system is to accurately compensate the plaintiff for harms caused by the defendant.8 Through damages, the defendant is able to monetarily restore the plaintiff to his or her former position. Ultimately, it is up to the jury to determine the cost of this restoration. In situations concerning a plaintiffs permanent impairment or death, determining this cost requires juries to calculate future damages. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.