Excerpted From: Maytal Gilboa, The Color of Pain: Racial Bias in Pain and Suffering Damages, 56 Georgia Law Review 651 (Spring, 2022) (224 Footnotes) (Full Document)

gilboamaytalThe 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 commonly reflect the use of race-based tables to predict a plaintiff's future earning potential. Although both courts and scholars have sharply criticized race-based tables, they are frequently used to calculate the loss of future income for plaintiffs with no established earnings record--in which cases, the tables systematically produce lower awards for Black plaintiffs than for White plaintiffs with the same injury.

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. Therefore, race-based tables or similar statistical data cannot similarly explain evidence of racial discrepancies in pain and suffering damages. 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. But they have typically considered this problem in the context of the inconsistency, and thus unpredictability, 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. This Article reviews the prominent proposals for measuring pain and suffering damages, 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. Indeed, the severity-of-injury inquiry has dominated judicial determinations of pain and suffering damages as well.

In this Article, I argue that the severity-of-injury inquiry is also the loophole through which racial bias infiltrates the assessment of 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. The roots of this bias derive from myths that accord Black people higher resistance to pain and physically stronger bodies than White people. Although these stereotypes might seem benevolent, they dehumanize Black people 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. 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. Importantly, as this Article explains, biased judgements usually result from implicit bias, meaning that the healthcare professionals and jurors are 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. 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, and the core principle of corrective justice, which requires a defendant's liability to be correlated to the foreseeable risk inflicted on the plaintiff.

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 eliminating race-based inequities.

This Article makes four important contributions. First, it responds to recent calls to investigate implicit racial bias in tort litigation, a realm in which the research about unconscious prejudice is still in its early stages as compared to other areas like criminal law and employment law. Second, the Article reveals a severe problem of underdeterrence resulting from the unique combination of unconscious bias and the open-ended nature of pain and suffering loss. Third, the Article explains why the current proposals for measuring pain and suffering losses fail to eliminate racial bias and how they instead provide a safe place for racial bias to hide. Last, the Article provides effective and easy-to-apply methods to contend with the problem of racial bias in pain and suffering damages and explains how they comply with the goals of tort law.

The Article proceeds as follows: Part II delineates the problem of racial bias in pain and suffering damages in light of tort law's goals. Part III explains why the current proposals for calculating pain and suffering damages cannot properly address this problem. Part IV introduces my proposed solution. The conclusion then summarizes the discussion.

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Pain and suffering damages are probably the remedy most susceptible to (conscious or unconscious) manipulation. This is because these damages manifest the most elusive and difficult-to-define type of loss: one that results from pain. In the folds of such abstract damages, it is particularly difficult, if not impossible, to identify when errors are made by juries and judges, either in the measure of damages or in setting the standard of care.

Against this backdrop, recent findings revealing significant racial discrepancies in pain and suffering damages between Black and White plaintiffs are especially alarming. Interestingly, the scholarship has for decades admitted the possibility that racial bias may successfully hide within the obscure estimation of one's pain. Nonetheless, the specific need to eliminate racial bias appears to have been swallowed up by the "greater mission" of finding a way to calculate pain and suffering damages reliably and consistently.

Currently, both the common methods used in courts and the proposals advanced by scholars for calculating pain and suffering damages share the notion that a central factor in estimating these damages is the severity of the plaintiff's injury. This Article does not deny the significance of the severity-of-injury factor as the best indicator for estimating pain and suffering loss. Instead, it exhorts us to pay attention to the fact that this factor is hardly objective. Black people have suffered from underestimation of the severity of their injuries for centuries. Recent studies confirm that even trained healthcare providers, probably without being aware of it, ascribe lower levels of severity to medical conditions in Black patients than to identical medical conditions in White patients. This, in turn, affects the respective treatments offered to Black and White patients.

The Article explained that the severity-of-injury factor is, therefore, a loophole through which racial discrepancies in pain and suffering damages can persist. In particular, the Article identified the source of these discrepancies between Black and White plaintiffs in two potential biases: one coming from jurors who may underestimate Black plaintiffs' injuries, and another coming from healthcare providers' underestimation of Black patients' medical conditions. The latter bias is then cast into the evidence upon which jurors base their decisions, confirming and amplifying the effect of the jurors' pre-existing implicit bias.

The conventional avenues for contending with racial bias in the courtroom are therefore insufficient to address racial discrepancies in pain and suffering losses. Even in the optimistic case in which the legal system successfully eliminates racial bias among jurors, the effects of racial bias on the underlying medical evidence persist. As a result, pain and suffering loss, a central paradigm of tort law that makes up a significant part of the total compensatory award, has become a safe harbor for racial prejudice.

The Article provided a unique analysis that revealed the adverse implications of racial discrepancies in pain and suffering damages in light of the goals of tort law. It highlighted a severe problem of underdeterrence that results when racial discrepancies render negligence toward Black people less costly than negligence toward White people. Under these circumstances, it explained, potential tortfeasors are generally incentivized to be more cautious around White people than around Black people. In addition, the Article explained that racial discrepancies in pain and suffering damages are inconsistent with corrective justice and the notion of global fairness.

After explaining the unique features of the problem of racial bias in pain and suffering damages, and the severe implications of this problem in light of three dominant goals of tort law, the Article offered a possible solution: ERTs. These tables can serve not only to educate jurors and judges about the effects of racial discrepancies in pain and suffering damages but also to provide three remedial avenues through which decisionmakers can adjust damage awards to neutralize the influence of racial bias: (1) an equalizing ratio multiplier, (2) equalizing ratio-based schedules, and (3) jurors' "freestyle" adjustment of the damages in light of their exposure to the ERTs. I sketched each of these potential solutions and addressed potential difficulties in their implementation. The discussion of the three possible remedial uses of ERTs to eliminate racial bias in pain and suffering damages revealed that the suggested multiplier method is generally superior to the others. The multiplier technique enables jurors to determine an appropriate level of damages in accordance with their view of the evidence, on the one hand, while on the other hand, it allows the court to neutralize the effects of implicit bias by adjusting those damages based on the accurate equalizing ratio.

Importantly, if ERTs are updated frequently enough to represent a relatively accurate account of the state of racial discrepancies in pain and suffering damages, these tables will also show when these discrepancies are narrowing, and hopefully, one day, have disappeared. Until then, ERTs offer a solution that, while admittedly imperfect, promises to do a better job than the current system that fails to address the pressing problem of racial bias in pain and suffering damages and its detrimental implications for Black people.

Assistant Professor, Bar-Ilan University Law School; Ph.D., Tel Aviv University Faculty of Law.