Injury + Inequality + Injustice = Tragedies Past, Present, and Future
October, 2016
An article published by the Washington Post, on the front page Oct. 26, 2016, provides insights into the legal “system” as it currently values awards for injured people’s lives differently based on race, gender, and age. And then secrecy in settlements is used to minimize compensation, costs, deterrence, and accountability.“In one case, when a 6-year-old girl and a male fetus were killed in the same car crash, the settlement for the fetus was calculated to be up to 84 percent higher than the girl’s, according to court records.”…
The debate over this use of demographic averages pits two tenets of the American justice system – fairness and accuracy – against each other.
Martha Chamallas, a law professor at Ohio State, called the practice reminiscent of “something Ruth Bader Ginsburg and civil rights advocates [fought] in the 1960s.” Jennifer Wriggins, a law professor at the University of Maine, said it “reinforces past discrimination and pushes it out into the future and endorses it.”
Defenders say it is the most accurate way to make calculations about the losses people incur when they are injured. “If there’s a difference in society, it is what it is. It’s a difference, and the economist’s job is to figure out what would have happened,” said James Woods, a forensic economist in Houston…
Law professors who study the practice in the United States say it deserves a fresh look, given America’s increasing awareness of the role race plays in the justice system – as well as the progress women have made in closing other economic disparities….Although G.M.M.’s case took place in open court, 95 percent of personal injury cases are settled behind closed doors, according to Lawrence Spizman, the president of the National Association of Forensic Economics. These settlements – which largely make up the $35 billion personal-injury industry, according to IBIS World – are almost always attached to confidentiality agreements preventing the victims from discussing the terms reached…. In a 2009 survey by the National Association of Forensic Economics, 44 percent said they considered race and 92 percent said they considered gender when projecting the annual wage for an injured child. Race and gender also come into play in many other calculations as well.” See https://www.washingtonpost.com/graphics/business/wonk/settlements/
Thanks to the Post and author Kim Soffen for this revealing examination of how our legal “system” fails victims.
As for why lawyers do not use the DOT value of a statistical life of $9 million, I leave it to readers to judge.
Feinberg did not use $9 million in the GM ignition scandal. As I wrote: “First, the Feinberg team, in devising their compensation plan, did not consider the DOT guidance on the higher value of a statistical life of $9.1 million. Although Mr. Feinberg did ask for that information to be submitted for their consideration. So yesterday I submitted the attached DOT Policy Guidance document.” See https://www.careforcrashvictims.com/blog-feinberg-comp.php
Lou Lombardo
