By Michael Hoenig - New York Law
Journal - August 10, 2015
In a bombshell decision issued on July 30, Eastern District of New York
U.S. Judge Jack B. Weinstein held that it is unconstitutional to
use ethnicity-based statistics to calculate future economic loss
in a tort case. In
G.M.M. v. Kimpson,1 an
infant lead poisoning claim against a defendant landlord that
resulted in a two-week trial and a plaintiff's verdict of about
$2 million, the judge ruled that the testimony of three
economics experts (two for the plaintiff and one for defendant)
could not rely on assumptions based on ethnicity—in this case
the fact that the infant was Hispanic. The July 30 Memorandum
and Order copiously explained the trial ruling and the reasons
why such testimony is unconstitutional. Judge Weinstein found
that use of "ethnicity-based statistics" to obtain a reduced
damage award in calculating future economic loss violates due
process and equal protection.
Weinstein's decision could have profound impact on economic loss evidence
in cases where consulting or testifying economists rely on
assumptions and statistics based, in part, on ethnicity factors.
For example, in personal injury cases involving youngsters,
impairment of future earnings and earning capacity are often
contested issues. Proverbially and exaggeratedly speaking, just
to make a point, plaintiffs' lawyers might like to posit that a
5-year-old claimant, were she not injured, would have become a
neurosurgeon. The defense, however, might like to show that,
based on ethnicity and economic strata data, the child likely
would not have gone beyond a high school education, which
translates into a lower range of earnings into the future.
This kind of debate, fortified by assumptions, statistics,
trends, graphs and historical data, is subject matter routinely
and typically reflected in a battle among experts. The economic
loss damages in a given case can be significant. If a youngster
could be projected out to graduating from university into
high-paying professions, then a future worklife expectancy into
the child's 60s or 70s can support a high damage award. On the
other hand, if the infant plaintiff is likely to engage in
lower-paying work, then the economic loss projected forward for
five decades or so justifies only a lower award. Weinstein's
ruling and rationales affect the permissible assumptions and
statistical bases that expert economists can use and, therefore,
perhaps also the quality of their testimony as well as the loss
figures in their bottom-line opinions.
The Kimpson decision is lengthy and, as often in Judge
Weinstein's pivotal opinions, is lucidly erudite, chock-full of
facts, statistics and data. Although infant tort claims are a
natural arena in which the decision's influence will be felt,
that's not the only area of potential impact. Economic loss
issues affect adults in tort cases. Such questions can also
arise in non-personal injury settings as well. Thus, especially
if followed by other judges, the Kimpson ruling is something
litigators need to review right away. They need to infuse its
lessons into their trial evidence checklists when dealing with
Then, there is the question of what Kimpson's
will or should be with respect to cases not yet tried but
scheduled for trial soon in which the parties have hired
experts, issued expert reports, exchanged experts' depositions,
filed pretrial orders and, in effect, are "ready to go." Do
these cases now warrant a revisit by the affected counsel and
the filing of possible motions to preclude, curtail or modify
evidence? Should applications for trial postponements be made or
allowed to accommodate Judge Weinstein's declaration of
widespread constitutional effects?
Then there is the question of cases already tried to verdict yet
still alive in the post-verdict pipeline, for example, where
post-trial motions are pending. If the problem is one of
constitutional dimensions and the verdict was based on evidence
or economic testimony laced with unconstitutional
ethnicity-based assumptions or data, should that issue now be
considered at this stage? Does it matter if the issue was not
After all, Judge Weinstein acted on his own motion. Should other
judges follow suit? And, how about cases on appeal? If the
evidence was unconstitutionally infirm, is that a question that
has some effect for the pending appeal? Perhaps the issue was
waived, if the "prejudiced" party did not preserve the question
by objection, motion or application. Or, does Weinstein's
conclusion have prospective effect only? Such thorny but
practical questions warrant thoughtful consideration by counsel
since, again, Kimpson has
overt constitutional implications.
Let's briefly highlight select aspects of Judge Weinstein's
lengthy opinion. A mother sued on behalf of herself and her
child claiming injury to the infant's central nervous system
caused by absorption of lead dust. 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
the apartment contained lead-based paint that had not been
properly removed or encapsulated. The jury returned a verdict of
$2 million in favor of plaintiffs.
At trial the child was less than 4 years old. A critical factor
in determining damages required ascertaining the infant's
prospects for obtaining post-secondary education degrees had he
not suffered from lead poisoning. In contesting damages,
defendant's attorney attempted to show, through expert economic
testimony, statistics and cross-examination of plaintiffs'
experts, that because the child was "Hispanic," the likelihood
of obtaining a bachelor's, master's or doctoral degree, and any
corresponding elevated income, was improbable.
Judge Weinstein observed that the child's father has a
baccalaureate degree, the mother has a Master of Fine Arts. Both
held "responsible income-generating jobs." The family was
"stable," and the parents were "caring." Based upon "his
specific family background, had the child not been injured,
there was a high probability of superior educational attainment
and corresponding high earnings." Treated by experts as a
"Hispanic," however, his potential, based on the education and
income of "average 'Hispanics' in the United States," was
At trial, the court ruled that, for the purposes of projecting
damages, the "specific characteristics of the child and his
family," rather than the characterization of the child as a
member of a particular ethnic group, "must be used" in
determining damages. This ruling was based on the same
constitutional and other factors relied upon in a 2008 decision,
v. City of New York,3 which
held that statistical evidence, used to prove that a spinal
cord-injured "African-American" was likely to survive for fewer
years than occidental persons with similar injuries, "violated
the equal protection and due process clauses" of the U.S.
Constitution, and "was inadmissible in computing life expectancy
Judge Weinstein posed the question and answer this way: "[C]an
statistics based on the ethnicity (in this case 'Hispanic') of a
child be relied upon to find a reduced likelihood of his
obtaining a higher education, resulting in reduced damages in a
tort case? The answer is no."5
During trial, testimony regarding the future economic prospects
of the child, had he not been poisoned with lead, were discussed
by three experts: Dr. Kenneth W. Reagles, plaintiffs' forensic
rehabilitation expert; Dr. Frank Tinari, plaintiffs' forensic
economist, and Dr. Bernard F. Lentz, defendant's forensic
economist. Dr. Reagles noted the general "Hispanic" background
of the boy, but placed primary reliance on the parents' specific
On cross-examination, defense counsel emphasized the "low
general educational backgrounds of the ethnic group he
characterized as 'Hispanics'." After a series of questions and
answers along this line, the court precluded an answer "on its
own motion" and "exclud[ed] ethnicity as a factor in damages
computations." The court then asked Dr. Reagles whether his
testimony would be changed if the undifferentiated statistics
with respect to "Hispanics" would be struck, to which the expert
responded, "Not materially and substantially at all."7
The court explained outside the presence of the jury that it was
basing its decision on the McMillan ruling regarding race
sociology and statistics. Neither party objected to the ruling.
Before plaintiffs' separate economic expert, Dr. Tinari, took
the stand, the court reminded the jury of its earlier ruling and
instructed: "[y]ou cannot say that, for example, Hispanics
generally go to college less than others and therefore use that
statistic or that analysis or that chart." Dr. Tinari was told
to adhere in his testimony to that instruction. Dr. Tinari
projected the child's future economic losses to be between $2.5
and 4 million.8
Defense expert economist, Dr. Lentz, found that because the
child-plaintiff was "Hispanic," his "future economic loss of
earnings was lower than that projected by plaintiffs' forensic
economist." The court told Dr. Lentz about his ruling of
unconstitutionality and instructed: "So all of your answers
should be based on individual characteristics and not the
general characteristics of a group, ethnic group. Is that clear
to you?" Dr. Lentz responded: "I believe so, sir."9 Taking
the court's ruling into consideration, the defense expert
ultimately projected that if the child obtained a baccalaureate
degree, his total future economic loss would be some $2.5
million. If he obtained only a high school diploma, the loss was
projected as less than $1.4 million.10
In his Kimpson decision, Judge Weinstein explained at length the
McMillan precedent11 and
the unconstitutionality of "race" as a criterion for assessing
damages (including the "equal protection" and "due process"
and discussing a number of scholarly sources, Weinstein said
that "[e]thnicity, like race, as discussed in McMillan,
is a fictitious, changing, and unreliable social construct."13 It
is "unconstitutional in a tort trial to premise projected
societal and educational achievements on race or ethnicity to
reduce tort damages." Indeed, the "state itself discriminates by
enforcing a substantive rule of discrimination—damages—based on
race or ethnicity in reducing damages in tort cases. Such an
illegal standard cannot be enforced by the courts."14 Judge
Weinstein hinted that the problem may extend to "gender worklife
expectancy tables" but the court did not have to confront that
issue in this case.15 Counsel
and readers: Be alert to this gender evidence issue on the
There's more, lots more and, so, only a careful reading of this
studious opinion will uncover the potential to affect what
presently constitutes the gigantic status quo of statistically
based economic assumptions and expert opinions. Weinstein
admonished that use of "ethnicity-based statistics" to obtain a
reduced damage award in calculating future economic loss "is
unconstitutional." It violates due process "because it creates
arbitrary and irrational state action, and equal protection,
because it subjects the claimant to a 'disadvantageous estimate'
of damages 'solely on the basis' of ethnic classification."16
"Propelling race and ethnicity to the forefront of predictions
about an individual's future achievement ignores the myriad
factors affecting an individual's capacity to fulfill his or her
here's another land mine of sorts for trial counsel to ponder:
there may be times when the use of Federal Evidence Rule 403 to
exclude "racially-, ethnically- and gender-based tables," even
when they have probative force and are therefore relevant, is
Judge Weinstein's erudite opinion has some explosive potential
to alter the quality, quantity and content of expert opinions
regarding future economic loss as well as the tables,
statistics, charts and data upon which experts rely—to the
extent that they employ race-, ethnicity- or gender-based
conclusions and assumptions. Counsel certainly have some
interesting work ahead of them in order to keep pace. The bench
and bar generally have some homework too. So do economic
1. 2015 U.S. Dist. LEXIS 99715 (E.D.N.Y. July 30, 2013).
2. Id. LEXIS at *2-*3.
3. 253 F.R.D. 247 (E.D.N.Y. 2008).
supra n. 1, LEXIS at *3.
5. Id. LEXIS at *2.
6. Id. LEXIS at *8-*16.
7. Id. LEXIS at *15-*16.
8. Id. LEXIS at *17.
9. Id. LEXIS at *19.
11. Id. LEXIS at *20-*31.
12. Id. LEXIS at *31-*32.
13. Id. LEXIS at *50-*51.
14. Id. LEXIS at *53.
15. Id. LEXIS at *54.
16. Id. LEXIS at *63.
17. Id. LEXIS at *64.
18. Id. LEXIS at *78.
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