TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, August 25, 2015

More on Race and Tort Damages

This is a hot topic.  Judge Weinstein issued a ruling in late July and Tony Sebok blogged about the decision at New Private Law.  Now, in recent postings to SSRN, Ronen Avraham and Alberto Bernabe take up the topic.

Avraham's piece, Is Race- and Sex-Based Targeting Efficient?  A Look at Tort Law's Discriminatory Damage Awards, has the following abstract:

Under traditional law and economics analysis, it is deemed efficient to target individuals and communities based on race and gender when doing so results in the lowest tort liability for a rational actor.  This results in the targeting of low income minorities and women - a fact which law and scholars economics would stamp with analytical approval, but are likely embarrassed to admit.  Surprisingly, the basis for this targeting is the seemingly neutral use of race- and gender-based statistical tables (for example life expectancy or worklife expectancy) which, when used in tort damage calculations, result in a large disparity between damages awarded to whites versus blacks, and men versus women.  First, this paper provides a full account of courts' existing discriminatory practices, identifying both theoretical and actual examples of race and gender targeting. It then challenges the conventional wisdom that the use of race- and gender-based tables are justified on efficiency grounds, pointing out fatal flaws inherent in the tables, in how the tables are used in courts to calculate damages for individuals, and in the incentives they create.  Under the status-quo, tort law’s remedial damage scheme both perpetuates existing racial and gender inequalities and creates ex-ante incentives for potential tortfeasers to engage in future discriminatory harm (discriminatory targeting) towards women and minorities.  The paper then shows that similar discriminatory practices surprisingly and ironically exist in federal law such as the ADA and even Title VII. After discussing the legal and theoretical background, statistical shortcomings, and efficiency concerns associated with the use of race- and gender-based statistical tables, this paper proposes a feasible, low cost, and logical solution to save American courts as well as the law and economics movement from this great embarrassment, and push towards a more efficient, and fair tort law remedial system.

Bernabe's piece, Do Black Lives Matter?: Race as a Measure of Injury in Tort Law, has the following abstract:

Much of the current debate over race relations in the United States revolves around police brutality and legal injustice.  However, prior to the events that made the phrase “black lives matter” the signature message of a protest movement against racism in the American justice system, the nation’s media was captivated briefly by another legal question: whether a child’s race should be used as a measure of injury to the child’s parents as part of a torts claim based on the “wrongful birth” of the child.  Unfortunately, once the attention turned to the events that prompted the protests and the debate that has developed since, the discussion about whether someone’s racial identity could be used as a measure of injury faded.

Yet, the issues raised by the case are too interesting and important to be relegated to the background of the debate.  The case not only offers the opportunity to discuss the issue of using race as an element in a tort law claim, it also poses interesting questions about the extent to which modern reproductive technologies change the way we think about injuries for purposes of tort law. 

Obviously, there have been many wrongful birth and wrongful pregnancy cases in the past, but this one is different.  Because the mother wanted to have a child and because the child was not born with a disability, the basis of the complaint is that the child’s race should be considered to be an injury to her and that the child’s existence should be considered to be an injury to the mother.  If we are ready to recognize a claim in cases where the child is born with a condition that could have been avoided had the defendant not been negligent, should we also recognize a claim if the child turns out to have different physical traits than planned, or expected?

Martha Chamallas and Jenny Wriggins, who have focused on this topic for years, must be smiling.

August 25, 2015 in Damages, Scholarship | Permalink | Comments (0)

Tuesday, August 18, 2015

Sebok on Weinstein's Holding on Discriminatory Damages

At New Private Law, Tony Sebok discusses Judge Jack Weinstein's ruling in G.M.M. v. Kimpson that a plaintiff's race is irrelevant when calculating future damages.

August 18, 2015 in Current Affairs, Damages | Permalink | Comments (0)

Thursday, August 6, 2015

Weinstein Rules Ethnicity Irrelevant to Reduce Damages in Lead Paint Cases

Last week, Judge Jack Weinstein rejected a landlord's attempt to use a tenant's Hispanic ethnicity to reduce damages in a lead paint poisoning case.  NYT coverage is here.  Thanks to Jenny Wriggins for the tip.

August 6, 2015 in Current Affairs, Damages | Permalink | Comments (0)

Thursday, April 30, 2015

Lim on Civil Damage Awards & the Media

Claire Lim (Cornell-Economics) has published Media Influence on Courts:  Evidence from Civil Case Adjudication

The study’s findings include:

  • As the “liberalness” of a district increases, so too does the likelihood of higher civil trial awards. In other words, liberal districts tended to adjudicate larger final damage awards to plaintiffs. (This general finding is supported by other academic research, as well.)
  • More specifically, a one standard deviation increase in the liberalness of political orientation in a district is associated with a 33% increase in the amount of final award in districts with average newspaper coverage.
  • However, the influence of political orientation on final awards becomes smaller as media coverage increases.
  • Neither the volume of media coverage alone, nor having elected judges, has a statistically significant impact on the amount of final award in civil adjudications.
  • Coverage appears to have no statistically significant impact on plaintiff win rates — only on the amount of damage awards adjudicated.

Journalist's Resource has more details.

April 30, 2015 in Damages | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2015

MD: Legislature Debates Raising Cap for Claims Against Local Governments

Late last month, the Maryland Court of Appeals upheld the cap on damages for claims against local governments.  The current cap is $200,000 per claim, with a maximum of $500,000 for any number of claims stemming from a single incident.  The House passed a bill raising those limits to $300,000 and $600,000.  Last week a Senate committee proposed raising the limits to $500,000 and $1,000,000.  The full Senate will vote on Friday.  Cecil Whig has the story.

April 15, 2015 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, April 2, 2015

MD: Cap on Damages Against Local Governments Upheld

On Monday, the Maryland Court of Appeals upheld a cap on damages against local governments.  A jury awarded $11.5M to the family of a man shot to death by police, and the family argued the cap was unconstitutional.  The court rejected the challenge; the family will receive $400,000.  The Baltimore Sun has the story.

April 2, 2015 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 17, 2014

IN: Constitutional Challenge to Damages Cap

Like many jurisdictions, Indiana has a tort claims act.  Pursuant to Indiana's version, the maximum total payout to victims for any single event is $5M.  In 2011, a stage at the Indiana State Fair collapsed; 62 victims have been paid damages from the incident.  One of the injured, 10-years-old at the time, opted to sue the state.  On Monday, an appellate court heard arguments that the cap is unconstitutional.  In a filing, plaintiff's lawyers stated:

 “The $5 million cap, both on its face and as applied, violates Plaintiff’s constitutional rights, which provides in relevant part [that] all courts shall be open, and every person for injury done to him and his person, property or reputation, shall have remedy by due course of law." has the story.

December 17, 2014 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, October 9, 2014

WI: Judge Holds Med Mal Cap Does Not Apply to $25.3M Verdict

A Milwaukee County circuit judge held the state's $750,000 cap on pain and suffering did not apply to a $25.3M verdict, including $15M of pain and suffering to her and $1.5M to her husband, for a woman who lost all 4 limbs due to septic infection.  The court did not find the cap unconstitutional, but held there was no rational basis to apply it to this case.  An appeal is expected.  A Journal Times editorial in support of the judge's ruling is here.


October 9, 2014 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 29, 2014

Behrens & Appel on Medical Monitoring in NLJ

Recently the New York Court of Appeals rejected medical monitoring.  Behrens and Appel approve:

The New York Court of Appeals reached the right conclusion. For over 200 years, one of the fundamental principles of tort law has been that a plaintiff cannot recover without proof of a physical injury. This bright-line rule may seem harsh in some cases, but it is the best filter courts have developed to prevent a flood of claims, provide faster access to courts for those with reliable and serious claims, and ensure that the sick will not have to compete with the nonsick for compensation.

The full op-ed (behind a pay wall) is here.


January 29, 2014 in Current Affairs, Damages | Permalink | Comments (0) | TrackBack (0)

Friday, September 20, 2013

Recovery from Injuries

Huff Post has a piece on the recovery of Chef Eduardo Garcia from injuries he received in a 2011 hunting accident.  Garcia's left arm was amputated below the elbow and he now has a bionic hand.  John Hochfelder, who blogs at, represented Garcia in the tort case.


September 20, 2013 in Damages, Science | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 2, 2013

Tweets Affect Damages in Georgia Car Accident Case

Attorneys on both sides believe that a plaintiff's Twitter posts affected the damages that she received in a car accident case in Georgia state court.   In her tweets, the plaintiff described an "epic weekend" in New Orleans, posted photos at the beach for spring break, and stated "I'm starting to love my scar," which both sides claim hurt her pain and suffering claim.  The Daily Report has the full story.

Thanks to Lisa Smith-Butler for the alert.


January 2, 2013 in Current Affairs, Damages | Permalink | Comments (1) | TrackBack (0)

Thursday, October 11, 2012

5th Circuit Asks for Supplemental Briefs in Mississippi Non-Economic Damages Cap Case

The Fifth Circuit has asked for supplement briefs in a case addressing the constitutionality of Mississippi's $1 million cap on non-economic damages.  The Mississippi Press has more.


October 11, 2012 in Current Affairs, Damages | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 5, 2012

VA: Facebook "Likes" Admissible, But Defamation Punies Award Cut

In a federal case in Virginia, the number of"likes" an allegedly defamatory Facebook page received was admissible, but a punitive damages award was reduced.  Peter Vieth of Virginia Lawyers Weekly has the story:

A federal judge says a dog trainer who claimed he was defamed by online accusations of animal abuse was entitled to tell a jury how many people “liked” the offending Facebook page, a federal judge has ruled.

Nevertheless, U.S. District Judge James Cacheris said the jury’s “grossly excessive” $60,000 punitive damages verdict in favor of the dog trainer should be cut by three quarters. Cacheris says the defendant can either accept the reduction of punitives to $15,000 or take a new trial.

The full story is here.


September 5, 2012 in Damages, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, August 6, 2012

Missouri Supreme Court Holds Cap on Non-Economic Damages Violates State Constitution

In a decision issued July 31st, the Missouri Supreme Court struck down the state's statutory cap on non-economic damages as violating the Missouri state constitution.  Specifically, the court found that the cap violated the right to a trial by jury.  A copy of the decision is available here (pdf).


August 6, 2012 in Current Affairs, Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 6, 2012

NY: Nonpecuniary Damages Not Available for Legal Malpractice

So held the Court of Appeals in Dombrowki v. Bulson  (pdf) (at least against criminal defense attorneys). 

Thanks to Mark Weber for the tip.


June 6, 2012 in Damages | Permalink | Comments (0) | TrackBack (0)

Monday, April 23, 2012

Judge Awards $65k Damages for Loss of Pet

A Colorado judge has awarded $65,000 for the negligent death of the plaintiff's 18-month old dog.  A cleaning service mistakenly let the dog out, where she was hit by a car.  The dog crawled back into the house, and the cleaning service left the dying dog - knowing it had been hit - under the dining room table, where the owner found her dead upon returning 2 hours later.  

 Colorado News9 and Channel 7 have more.   

Thanks to Lisa Smith-Butler for the alert.  

- SBS 

April 23, 2012 in Damages | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 25, 2012

Sharkey on Economic Analysis of Punitive Damages

Cathy Sharkey (NYU) has posted to SSRN Economic Analysis of Punitive Damages:  Theory, Empirics, and Doctrine.  The abstract provides:

This chapter — to be included in Research Handbook on the Economics of Torts (Arlen ed., Kluwer, forthcoming 2012) — assesses economic rationales for punitive damages in light of contemporary empirics and doctrine. The primary economic rationale for supra-compensatory damages is optimal deterrence (or loss internalization): when compensatory damages alone will not induce an actor to take cost-justified safety precautions, then supra-compensatory damages are necessary to force the actor to internalize the full scope of the harms caused by his actions. Alternative economic rationales — disgorgement of ill-gotten gains and enforcement of property rights — have been proposed to align the theory with the historical and conventional focus of punitive damages on intentionally wrongful behavior.

Notwithstanding its academic prominence, the economic deterrence rationale has not dominated doctrine. In fact, the U.S. Supreme Court has all but rejected economic deterrence, by instead placing increasing emphasis on a competing retributive punishment rationale. But, since punitive damages lie squarely within the purview of state law, state legislatures and courts possess a degree of freedom to articulate state-based goals of punitive damages — such as economic deterrence — even in the face of heavy-handed federal constitutional review imposed by the U.S. Supreme Court.


January 25, 2012 in Damages, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 19, 2012

Licari on Enforcing Punitive Damage Awards in France after Fountaine Pajot

François-Xavier Licari has posted Enforcing Punitive Damage Awards in France after Fountaine Pajot on SSRN. The abstract provides:

In a landmark ruling, the Cour de cassation held that 'an award of punitive damages is not, per se, contrary to public policy,' but that 'it is otherwise when the amount awarded is disproportionate with regard to the damage sustained and the debtor's breach of his contractual obligation.' Schlenzka & Langhorne v. Fountaine Pajot, S.A. involved the failed attempt by American judgment creditors to enforce their California judgment against a French defendant in France. At the same time that the judgment creditors were taking their case through the French legal system, the Cour de cassation, in a different line of cases, liberalized the conditions under which a foreign judgment could be enforced in France. But when the Court opened one door for the American plaintiffs, it closed another by refusing to enforce the judgment because it included disproportionate punitive damages. The Court's reasons were inconsistent with prior interpretations of proportionality and disingenuous to the court's modern approach to the enforcement of foreign judgments. In just a few words, the Court echoed prevailing French and European sentiments about American punitive damage awards. Unfortunately, the prevailing attitudes are dominated more by prejudice than by fact and reason.






January 19, 2012 in Damages, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 22, 2011

Recovery of Sentimental Value of Pets

Courthouse News Service reports on an interesting case out of Texas, Medlen v. Strickland (pdf). In Medlen, the Texas Court of Appeals "ruled that the owners of a mistakenly euthanized dog can sue to recover the sentimental value of their lost pet, reversing and remanding the ruling of a trial court."

Animal Law Blog also have coverage


November 22, 2011 in Damages | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 15, 2011

Challenges to State Punitive Damages Caps

California Punitive Damages Blog reports that both the Arkansas Supreme Court and the Missouri Supreme Court are considering challenges to the legislative caps on punitive damages in those states.


November 15, 2011 in Damages | Permalink | Comments (0) | TrackBack (0)