The Color of Pain: Racial Bias in Pain and Suffering Damages

• Publication year: 2022

The Color of Pain: Racial Bias in Pain and Suffering Damages

Maytal Gilboa
Bar-Wan University Law School, maytal.gilboa@utoronto.ca

The Color of Pain: Racial Bias in Pain and Suffering Damages

Cover Page Footnote
Assistant Professor, Bar-Ilan University Law School; Ph.D., Tel Aviv University Faculty of Law. I wish to thank Ronen Avraham, Ygal Blum, Natalie Davidson, Doron Dorfman, Ehud Guttel, Yotam Kaplan, Omer Pelled, Ariel Porat, Dan Priel, Emily Schaffer, Ernest Weinrib, and Keren Yalin-Mor for helpful comments and discussions and Or Elmalich for excellent research assistance.

THE COLOR OF PAIN: RACIAL BIAS IN PAIN AND SUFFERING DAMAGES

Maytal Gilboa^*

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For more than half a century, our legal system has formally eschewed race-based discrimination, and nearly every field of law has evolved to increase protections for minority groups historically burdened by racial prejudice. Yet, even today, juries in tort actions routinely consider a plaintiff's race when calculating compensatory tort damages, and they do so in a manner that systematically results in lower awards to Black plaintiffs than to White. This Article examines this problem, zeroing in on the specific issue of racial bias in calculations of tort damages for pain and suffering.

The severity of a plaintiff's injury is commonly considered the best indicator for measuring her pain and suffering. In this Article, I argue that severity of injury is also the loophole through which racial bias infiltrates the calculation of these damages. Drawing on studies that reveal medical providers' tendency to view Black patients' injuries as less severe than White patients', I explain that Black plaintiffs' damages for pain and suffering are susceptible to racial bias at two levels: first, when health care providers underestimate their injuries, and second, when jurors rely on the opinions of these providers—which may confirm and amplify the jurors' own implicit biases—in deciding damages for pain and suffering.

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This Article argues that tort law currently has no reliable mechanism for detecting and correcting implicit biases that may inform jurors' assessments of Black plaintiffs' pain and suffering. Failure to correct these biases allows juries to undervalue Black plaintiffs' pain and suffering losses, leading to damages awards that are inconsistent with the goals of tort law. In particular, I explain that the systematic underestimation of Black plaintiffs' pain and suffering losses effectively lowers both the cost of defendants' tortious conduct toward Black victims and the standard of care vis-à-vis those victims, creating a severe problem of underdeterrence. Because potential tortfeasors know that, on average, tortious conduct towards White victims costs more than tortious conduct towards Black victims, they will generally act more cautiously around White people.

After exposing the problem of racial bias in pain and suffering damages and exploring its serious implications, this Article introduces a simple and easy-to-apply mechanism for neutralizing the effect of implicit racial bias in the calculation of pain and suffering damages: Equalizing Ratio Tables (ERTs). ERTs quantify race-based discrepancies in the average damages awarded for pain and suffering and can be used in several ways to narrow, or even eliminate, these discrepancies and their detrimental implications on Black plaintiffs.

Although this Article focuses on racial bias in pain and suffering damages against Black plaintiffs, its discussion may be relevant to understanding the implications of other types of biases as well.

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Table of Contents

I. Introduction....................................................................654

II. Delineating the Problem.............................................660

A. IMPLICIT BIAS HIDDEN IN THE FOLDS OF AMBIGUOUS LOSS ESTIMATION..........................................................660
B. THE GOALS OF TORT LAW...............................................662

III. Severity of Injury: The Loophole for Racial Bias. 670

A. CALCULATING PAIN........................................................670
B. THE COLOR OF PAIN.......................................................675

1. Racial Bias in Jurors' Assessments.......................675
2. Racial Bias in Medical Providers' Assessments.... 681

IV. Equalizing Ratio Tables..............................................685

A. EQUALIZING RATIO TABLES AND EQUALIZING DAMAGES . 686
B. THE GOALS OF TORT LAW...............................................695

V. Conclusion......................................................................697

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I. Introduction

The issue of racial discrepancies in damages awarded for loss of life and limb is familiar. These damages compensate tort victims for future economic loss, and they commonly¹ reflect the use of race-based tables² to predict a plaintiff's future earning potential.³ Although both courts and scholars have sharply criticized race-based tables,⁴ they are frequently used to calculate the loss of future income for plaintiffs with no established earnings record—in which

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cases, the tables systematically produce lower awards for Black plaintiffs than for White plaintiffs with the same injury.⁵

The focus of this Article, however, is on a different type of damages, namely, damages for pain and suffering. Unlike economic losses that result from physical injuries, pain and suffering cannot be measured by reference to objective factors such as loss of income.⁶ Therefore, race-based tables or similar statistical data cannot similarly explain evidence of racial discrepancies in pain and suffering damages.⁷ I suggest that these discrepancies are the result of implicit racial bias hiding in the shadows of the ambiguous assessment of pain and suffering losses.

For decades, scholars have acknowledged that racial bias affects the estimation of pain and suffering damages.⁸ But they have typically considered this problem in the context of the

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inconsistency,⁹ and thus unpredictability,¹⁰ of these damages. Seeking a solution to these broader questions, many scholars have developed thoughtful approaches to "measure the immeasurable" and put a price on pain and suffering.¹¹ This Article reviews the prominent proposals for measuring pain and suffering damages,¹² drawing attention to a common theme: the severity of the plaintiff's injury as a significant predictor of the amount of pain and suffering damages.¹³ Indeed, the severity-of-injury inquiry has dominated judicial determinations of pain and suffering damages as well.¹⁴

In this Article, I argue that the severity-of-injury inquiry is also the loophole through which racial bias infiltrates the assessment of

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pain and suffering damages. The severity-of-injury inquiry is extremely susceptible to racial bias, especially when applied to the pain and suffering of Black victims. Research indicates that many White laypeople, and even trained healthcare providers, underestimate the severity of Black people's injuries.¹⁵ The roots of this bias derive from myths that accord Black people higher resistance to pain and physically stronger bodies than White people.¹⁶ Although these stereotypes might seem benevolent, they dehumanize Black people¹⁷ and have numerous detrimental implications. The implication that concerns this Article is that Black plaintiffs are, on average, under-compensated for their pain and suffering losses. The Article identifies the twofold bias that explains this result. The first comes from biased judgments of healthcare providers who, research shows, often underestimate the severity of Black patients' medical conditions.¹⁸ The second comes from biased jurors who may also view Black plaintiffs' injuries as less severe than White plaintiffs' and whose biases are confirmed and amplified (unbeknownst to them) by medical evidence that purports to be objective but is tainted with bias.¹⁹ Importantly, as this Article explains, biased judgements usually result from implicit bias,²⁰ meaning that the healthcare professionals and jurors are

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unaware of the influence of bias on their estimation of a Black person's injury.

Racial discrepancies in pain and suffering damages affront both the fundamental principles of our justice system and the concrete goals of tort law. This Article focuses on the latter, revealing a uniquely confounding problem of underdeterrence resulting from the combination of elusive and unintentional bias with the inherently indeterminate nature of pain and suffering. Unaware of their bias, jurors not only may mistakenly underestimate a Black plaintiff's pain and suffering but also may unintentionally set a lower standard of care for potential tortfeasors in their interactions with Black victims as compared to White victims.²¹ In light of the immeasurable nature of pain and suffering, detecting judicial errors in awarding damages or setting the standard of care properly is almost impossible in this type of loss. Potential tortfeasors who know, even subconsciously, that on average their negligent conduct towards White victims costs them more than the same conduct towards Black victims will rationally tend to act more carefully when they are around White people. In addition to this problem, racial discrepancies in pain and suffering damages are at odds with both the concept of global fairness, which demands similar compensation for similarly severe injuries,²² and the core principle of corrective justice, which requires a defendant's liability to be correlated to the foreseeable risk inflicted on the plaintiff.²³

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After examining the contours of this problem, this Article introduces a possible solution—namely, the use of a tool that I term Equalizing Ratio Tables (ERTs)—which provides a vehicle for educating jurors and judges about racial bias in pain and suffering damages as well as an effective remedial method for...