Bill would bar reductions to civil damages based on race, gender in some cases

By: - December 13, 2021 7:00 am

Assemblyman Andrew Zwicker (Courtesy of New Jersey Assembly Democrats)

Lawmakers appear poised to dramatically shift how damages are awarded in certain civil cases by ending a practice critics say leads to legal settlements driven by bias.

Assembly and Senate panels this month advanced a bill that would bar reductions in damages paid for lost earnings based on race, gender, ethnicity, sexual orientation, and gender expression or identity in personal injury and wrongful death cases.

In such cases, damages are typically decided by estimating the amount of money an individual would have earned over a period of time during which they were unable to work because of an injury or wrongful death. If a person’s earning history is unavailable, experts use actuarial tables to approximate a fair sum, but those tables vary along demographic lines, sometimes leading to arbitrarily lower payouts.

“These calculations, which are trying to be blind, if you will, to how you would decide on an award — the data has biases built into them,” said Assemblyman Andrew Zwicker (D-Middlesex). “This will in a sense remove that bias.”

Such reductions are allowed under existing laws, and often disproportionately impact residents along racial, ethnic, and gender lines.

For example, the life expectancy for non-Hispanic Black Americans was 72 in 2020 and 78 for non-Hispanic white Americans, according to the National Center for Health Statistics. The six-year difference could result in a smaller award in a wrongful death suit involving a Black man than in one involving a white man.

Lower educational attainment among certain racial groups could also lead to smaller settlements, said Frank Tinari, a professor emeritus of economics at Seton Hall University who for decades testified as an expert witness on calculating economic damages.

“When we project someone’s earnings, we say ‘well they may not have worked 52 weeks out of the year. There’s some probability of unemployment. Let’s factor that in.’ We usually factor that in based on education,” said Tinari.

Committees in both chambers approved the bill in unanimous votes this month, meaning it could reach Gov. Phil Murphy’s desk as early as Dec. 20, when both chambers are scheduled to hold voting sessions.

The bill does allow changes to rewards based on age, which is used to calculate life expectancy, and that change appears to have headed off any potential opposition from the Insurance Council of New Jersey, the New Jersey State Bar Association, and the New Jersey Civil Justice Institute, which each supported the bill’s social policy goals.

Because loss of earnings is calculated using projections of the amount of time an individual would have spent in the workforce, the groups pushed for age to be excluded from the bill.

“The amount of lost earnings or impaired earning capacity of someone who is 25 years old and dies or experiences a permanent injury will be much greater than that of a 75-year-old in the same position because the 25-year-old will obviously live much longer,” said Anthony Anastasio, president of the New Jersey Civil Justice Insitute.

The measure also bars damages from being decided based solely on actuarial tables unless all parties agree.

“It’s trying to unpack a formula that is well-intentioned, certainly, but applying it blindly is part of the systemic problem,” Zwicker said.


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Nikita Biryukov
Nikita Biryukov

Nikita Biryukov most recently covered state government and politics for the New Jersey Globe. His tenure there included revelatory stories on marijuana legalization, voting reform and Rep. Jeff Van Drew's decamp to the Republican Party. Earlier, he worked as a freelancer for The Home News Tribune and The Press of Atlantic City.