Maytal Gilboa, ‘The Color of Pain: Racial Bias in Pain and Suffering Damages’

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 to be 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.

The Article argues that currently, tort law 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, the 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 the Article focuses on racial bias in pain and suffering damages against Black plaintiffs, its discussion may be of relevance to understand the implications of other types of biases as well.

Gilboa, Maytal, The Color of Pain: Racial Bias in Pain and Suffering Damages (March 23, 2021). Georgia Law Review, forthcoming.

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