Ethnicity-Based 'Economic Loss' Testimony Unconstitutional

Judge Weinstein's decision could have a profound impact on economic loss evidence in cases where consulting or testifying economists rely on assumptions and statistics based, in part, on ethnicity factors. For example, in personal injury cases involving youngsters, impairment of future earnings and earning capacity are often contested issues. Exaggerating to make a point, plaintiffs' lawyers might like to posit that a five-year-old claimant, were she not injured, would have become a neurosurgeon. The defense, however, might like to show that, based on ethnicity and economic strata data, the child likely would not have gone beyond a high school education, which translates into a lower range of earnings into the future.

This kind of debate, fortified by assumptions, statistics, trends, graphs and historical data, is subject matter routinely and typically reflected in a battle among experts. The economic loss damages in a given case can be significant. If a youngster could be projected out to graduating from university into high-paying professions, then a future worklife expectancy into the child's 60s or 70s can support a high damage award. On the other hand, if the infant plaintiff is likely to engage in lower-paying work, then the economic loss projected forward for five decades or so justifies only a lower award. Weinstein's ruling and rationales affect the permissible assumptions and statistical bases that expert economists can use and, therefore, perhaps also the quality of their testimony as well as the loss figures in their bottom-line opinions.