By Associate Dean Jennifer Wriggins
Lead in water is currently receiving lots of attention because of the Flint, Michigan debacle. Some legal scholars see Flint as an instance of “environmental racism,” the term used to describe the fact that the large majority of residents affected are lower-income African-Americans. Flint is not the only time lead has hurt African American communities. For decades, lead in paint has been an important public health threat. Like the Flint water, lead paint disproportionately has injured minority and poor children. Lawsuits for lead paint poisoning in rented apartments have provided some compensation to injured children, but the way damages have been calculated often has meant that injured children who are racial minorities have received lower damages than they would have received had they been white. Scholarship by Prof. Martha Chamallas of Ohio State University-Moritz College of Law and myself has played a role in drawing attention to this inequality and is having an impact in changing it. Adopting our arguments, a watershed decision in a 2015 New York lead paint poisoning case involving a Hispanic child held that it was unconstitutional to use race-based tables to determine damages in a lead poisoning case. We hope that Hernandez-Adams v. Kimpson, 2015 W.L. 4572470 (July 29, 2015, E.D.N.Y.), marks a turning point in this kind of tort litigation.
Lead paint, often still found in older, deteriorating homes, can cause cognitive problems that last a lifetime when even a small quantity is ingested by toddlers. Cognitive problems in turn can lead to reduced wages throughout a person’s lifetime. It is negligent to rent an apartment with lead paint to a family with young children, since toddlers often eat or try to eat things they are not supposed to eat – as any parent can attest. Lawsuits have been filed in many states seeking compensation for the damages caused by lead paint on behalf of toddlers who ingest it and are poisoned by it. Damages in these lawsuits often include lost wages for the child’s lifetime.
But how to predict what a toddler would have earned throughout a lifetime? The established law on damages for injuries such as these does not demand precision; all that is required is a prediction. However, some benchmark for an estimate of lost earnings is required. In lead poisoning litigation, experts such as economists often testify about estimates of lost future earnings to give a jury or judge guidance in making a damage award. To make an estimate of lost future earnings, economists often first predict how far a child will get in school, and then make an estimate based on that educational attainment. But how to predict a child’s educational path? This is the first point that race or gender generally enters the lawsuit. Expert economists often use race-based and gender-based tables to make the educational attainment prediction. In other words, they take the race and gender of the child and plug it into a table that is divided by race and gender, and come out with an estimate of how long that child will stay in school. They then use that estimate for the next step in the calculation, one that also considers race and gender. That next step takes the estimate of academic attainment and plugs it into a second race- and gender-based earnings table to determine how much someone of that race and gender can be expected to earn in their lifetime. Since educational attainment and average earnings of racial minorities and women are lower than white men, the expert will often offer the opinion that a child who is Hispanic or African-American will lose less in earnings than a similarly situated white child.
I used to litigate lead paint poisoning cases on behalf of injured children before I became a law professor and was flabbergasted to learn that the experts’ opinions were based on race and gender in these lawsuits. It seemed wrong and unconstitutional. In her research Professor Chamallas reached the same conclusion. We argued that using this information in court to reduce a minority child’s damage award endorsed and reinforced past inequity and racism. Given the longstanding history of race discrimination in education and in the workforce, it is unacceptable to use data based on that discrimination against compensation for an individual child. Instead of using race- and gender-based tables, experts should make in individual estimate of what a child would have earned and use that individualized measure to determine damages. Our book, The Measure of Injury: Race, Gender, and Tort Law (NYU Press 2010), explains and elaborates these arguments.
In the 2015 New York case, parents of a Hispanic child who was four years old when exposed to lead dust, sued their landlord for damage to the child. In a jury trial in federal court, each side presented an expert on lost future earnings. The plaintiff’s expert based the estimate on the individual characteristics of the child’s parents, stressing that both parents had college degrees, the mother also possessed a masters degree, and both parents held steady jobs. The expert for the landlord produced a lower estimate based on race-based and gender-based tables. Judge Jack Weinstein, a noted jurist in Brooklyn federal court, ruled that the opinion of the landlord’s expert was inadmissible for constitutional reasons, relying on our work (as well as that of Maine Law’s Professor Deirdre M. Smith). Our hope is that this decision, while not binding beyond the court where it was issued, will be followed by other judges and improve the landscape of damages for African-American, Hispanic, and other minority plaintiffs.