Valuing the Lives of Plaintiffs of Color in Tort Law: A Critique of the Use of Race-Based Data in Damage Award Calculations

Authors

Alejandra Ayotitla, Pesek Law, LLC
Ross Pesek, Pesek Law, LLC

Date of this Version

8-27-2023

Document Type

Article

Citation

Nebraska Law Bulletin (August 27, 2023)

Comments

Copyright 2023, the authors

Abstract

Prohibiting the use of race-based data in damage award calculations will not eradicate other forms of systemic racism in tort law, as manifested in generational disparities in healthcare, education, or wealth. But it will be a step forward in valuing the lives of plaintiffs of color. To make this change, economists, the legal community, and legislators must reject what has become a widespread practice of relying on race-based data to calculate damage awards. There are additional reasons to reject such practice, most notably because the use of race-based data is a violation of the Equal Protection Clause and bad policy, as evidenced by the reduced damages awarded to plaintiffs of color, the unfairness of generalizations about racial groups, the reduced incentives to care for communities of color, and the furtherance of racial discrimination.

The use of race-based data is not as neutral and data-driven as it first appears. This practice unjustly devalues the lives of plaintiffs of color. The problem with race-based data is that it reflects disparities caused by systemic subjugation of racial groups. The data does not show an assessment of capacity, but the impact of racist policies and exclusions that racial minorities have historically faced. When judges and juries rely on such data, they tend to award lower damages justified by the idea that plaintiffs of color will live shorter lives or earn less wages than their white counterparts. Race-specific data is based on the flagrantly wrong premise that the lives of people of color are worth less than those of whites.

Leslie, the 5-year-old Latina girl described in this piece, who became disabled after a severe car accident, should not be seen as less valuable simply because data based on her race says so. The experts, attorneys, judge, and jury involved in her case should not use race to calculate her damage award. If tort law is genuinely committed to making plaintiffs whole, Leslie’s race must not matter.