A recent personal injury case out of New York purports to be an advancement for civil rights, but in fact is profoundly anti-scientific.

Image Credit: Steve Woods

Personal injury cases with severe injuries routinely employ actuarial science to figure out what a person has actually lost, in terms of both future medical expenses that otherwise wouldn’t have been and lost earning capacity over the course of a lifetime.  Recently a lawsuit over an injury caused by a Staten Island ferry accident forced a New York court to wrestle with a particular feature of actuarial tables: the use of race as a factor in predicting lifespan.  While the intentions of the judge might be noble in attempting to create a level playing field, his rationale for banning race as a factor in predicting lifespan is fundamentally flawed and appears seriously uninformed about the nature of actuarial science and statistics.

Staten Island ferry passenger James McMillan was injured when the ferry crashed into a pier.  When calculating damages, the state of New York presented actuarial evidence that suggested that M. McMillan, as a black man in New York, has a lower-than-average life expectancy.  However, in the opinion of Judge Jack Weinstein, the use of race-specific actuarial tables was improper.

Judge Weinstein gave three reasons in his opinion for the exclusion of race-specific tables.  The first was his conclusion that race-based tables were an inadequate as a matter of science, and a violation of the Fourteenth Amendment to boot.  First, the judge pointed to the lack of a biological definition of “race”, and concluded that race is a social construct rather than a biological trait.  From this assertion, the judge concludes that race-based tables are inadequate not only as a matter of law, but as a matter of science.

While banning the use of race in actuarial tables might make for good social policy, Judge Weinstein’s assertion that actuarial science must be restricted to biological factors in determining life expectancy is pure nonsense.  Even assuming the judge’s analysis that socio-economic status explains all the different between the races (as an aside, that different medicines have different rates of success in treating the same condition in different races suggests that there is a genetic component to the differences), it is still entirely appropriate as a matter of actuarial science to rely on race as a proxy for these differences.  If statistics suggested that people with tattoos lived shorter lives than those without, it would be perfectly acceptable as a matter of science to use that in calculating life expectancy.  This would clearly not be because tattoos biologically cause a person to die sooner.  Rather it would more likely be because tattoos are a sign that a person engages in riskier behavior that has a greater chance of shortening a person’s life.  That doesn’t invalidate the use of tattoos as a valid factor in estimating lifespan.

There’s also an argument to be made that the goals and aims of tort law are frustrated by such a policy.  One of the fundamental tenets of tort law is that the damages awarded in negligence cases are not punishment.  The goal of the monetary damages is to put the injured party as close to where they were before the injury as possible.  Punitive measures are reserved for intentional conduct because it’s much harder to deter people from doing what they don’t do on purpose.  One of the corollaries to this rule is that defendants “take the Plaintiff as it finds them.”  If a person injures a child with 70 years to live and that child needs lifelong medical care as a result, that person pays for 70 years of medical care.  If a person injured an elderly or terminally ill person with 5 years left to live, then that person pays for 5 years of medical care.

By forcing life actuaries to move away from a more accurate predictor of lifespan towards one that’s politically correct, the court is implicitly placing its own notions of racial justice at a higher priority than accurately assessing damage done to the plaintiff.  As a social policy, this might be an acceptable trade-off, but it’s a trade-off that the legislature should make, not the courts.  Legislatures decided to make courts adopt rape shield laws, legislatures decided what makes and doesn’t make a crime, and legislatures should decide whether accurate assessment of damages is more important than this sort of attempt at social justice.

While it’s pretty clear that Judge Weinstein was trying to do the right thing in this case.  But that doesn’t always lead people to actually do the best thing that can be done.  While trying to reduce the legitimacy of minority stereotypes is an admirable goal, the means to it in this case simply don’t measure up.  The actuarial tables don’t explain why their numbers are as they are, and the other considerations imposed by law get thrown by the wayside without do consideration.  Perhaps some other solution would be a better way to achieve Judge Weinstein’s goals.