Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
L. Rabin, California Bars the Calculation of Tort Damages Based on Race, Gender and Ethnicity,
SLS Blogs: Legal Aggregate (Nov. 13, 2019), https://perma.cc/RR45-6Z2Z. On July 31, 2019,
Governor Gavin Newsom signed into law Senate Bill No. 41, which prohibits “the estimation,
measure, or calculation of past, present, or future damages for lost earnings or impaired earning
capacity resulting from personal injury or wrongful death from being reduced based on race,
ethnicity, or gender.” S.B. 41, 2019-2020 Leg., Reg. Sess. (Cal. 2019). The law also explicitly
acknowledges how, historically, such reductions have “perpetuate[d] systemic inequalities,”
magnifying the significance of “gender pay gaps and workforce discrimination” and
“disproportionately injur[ing] women and minority individuals.” Id. at Section 1(e)-(f). What
effects do you expect this law to have on the landscape of tort law in California? To the extent
that the law seeks to address structural inequality, does it go far enough? Are there other types of
bias that might unfairly affect damage calculations and should be addressed? Note that in 2016,
U.S. senators Cory Booker and Kirsten Gillibrand and representatives Joe Kennedy III and Mia
Love proposed federal legislation that would prohibit any “court of the United States” from
“award[ing] damages to a plaintiff in a civil action using a calculation for the projected future
earning potential of that plaintiff that takes into account the race, ethnicity, gender, religion, or
actual or perceived sexual orientation of the plaintiff.” Fair Calculations in Civil Damages Act of
2016, H. R. 6417, 114th Cong. (2016), available at https://perma.cc/4H7QRWDX. Congress did
not enact the legislation during that session, but the bill was reintroduced in 2019. See Fair
Calculations in Civil Damages Act of 2019, H.R. 4418, 116th Cong. (2019), available
at https://perma.cc/G9UN-WZ7Q; Fair Calculations in Civil Damages Act of 2019, S. 2512,
116th Cong. (2019), available at https://perma.cc/W4LV-DG34.
3. A slippery slope to average? One possible outgrowth of the reforms discussed in Note 2
is simply less tailoring of damage awards. The less tailored a statistical analysis is, the less
damages determinations will be individualized, and the more they begin to reflect the outcome of
an injury to a hypothetical average person. Are litigants likely to accept this? Or should we
expect to see litigants finding other ways to individualize, based on other predictive variables?
Would we see factors like residential zip code take on a new role in damage calculations? See
Bedonie, supra (disallowing the use of zip codes because of the strong correlation with race in
that case). Such questions run into the uncomfortable truth that many factors outside a plaintiff’s
control—factors other than the ones listed in the proposed legislation—powerfully affect things
such as life expectancy and therefore might powerfully shape tort damages awards. Where such
factors have predictive power, is it wrong to take them into account? If one of the foundational
ideals of tort law is to make the plaintiff “whole,” the inquiry should be specific to the plaintiff,
including all the plaintiff’s statistically relevant characteristics. But that obviously means
reproducing all sorts of unfairness. Can you imagine an approach to calculating damages that
would honor tort law’s commitment to corrective justice while also recognizing the injustice
inherent in existing distributions of life chances?
4. Market inequalities, tort inequalities. Inequities in damages based on expected future
earnings are not only gender- or race-based phenomena, of course. They are also a class
phenomenon. This became painfully clear in the lawsuits following the terrorist attacks of
September 11, 2001. One reporter recounted the claims that families contemplated:
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