G.M.M. v. Kimpson, 13–CV–5059.

• Decision Date: 29 July 2015
• Docket Number: No. 13–CV–5059.,13–CV–5059.
• Citation: 116 F.Supp.3d 126
• Parties: G.M.M., a minor child by his mother and natural guardian, Niki HERNANDEZ–ADAMS, and Niki Hernandez–Adams, individually, Plaintiffs, v. Mark KIMPSON, Defendant.
• Court: U.S. District Court — Eastern District of New York

116 F.Supp.3d 126

G.M.M., a minor child by his mother and natural guardian, Niki HERNANDEZ–ADAMS, and Niki Hernandez–Adams, individually, Plaintiffs,

v.Mark KIMPSON, Defendant.

No. 13–CV–5059.

United States District Court, E.D. New York.

Signed July 29, 2015.

Steven Kenneth Frankel, Frankel, Rudder and Lowery, Stephen M. Cantor, Stephen M. Cantor, P.C., New York, NY, for Plaintiffs.

Roger V. Archibald, Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

JACK B. WEINSTEIN, Senior District Judge:

Table of Contents

I. Introduction ...................................................................... 128
                II. Communities Disproportionately Harmed By Lead-Based Paint ........................ 129
                III. Facts ........................................................................... 130
                     A. Summary of Case                                                         ...... 130
                     B. Expert Testimony Regarding Ethnicity-Based Statistics                  ........131
                        1. Plaintiffs' Experts ........................................................131
                        2. Defendant's Expert .........................................................135
                IV. The McMillan Rule  .......................................................135
                    A. Law                                                                        .....135
                       1. The Case ....................................................................115
                       2. Scholarship .................................................................140
                          a. Use of Minority-Specific Data in Tort Cases ..............................140
                          b. Use of Minority-Specific Data in Lead-Based Paint Cases ..................142
                       3. Race and Ethnicity .........................................................143
                          a. United States Census .....................................................143
                          b. Critiques of Census Practices ............................................146
                          B. Application ..............................................................148
                V. Life, Worklife, and Educational Attainment Expectancy Tables .......................149
                   A. History .........................................................................149
                   B. Law .............................................................................151
                   C. Application .....................................................................152
                VI. Categorical Advantages Afforded to Members of Historically Disadvantaged
                    Minorities Not Inconsistent with Excluding Evidence of Race or
                    Ethnicity Where Appropriate ........................................................154
                    A. Law .............................................................................155
                    B. Application .....................................................................157
                VII. Constitutional Requirements Supplementing Rule 403 of the Federal Rules
                     of Evidence .......................................................................157
                VIII. Conclusion .......................................................................159
                

I. Introduction

Posed is the question: can statistics based on the ethnicity (in this case, "Hispanic") of a child be relied upon to find a reduced likelihood of his obtaining higher education, resulting in reduced damages in a tort case? The answer is no.

A mother suing on behalf of herself and her child claimed injury to the infant's central nervous system caused by his absorption of lead dust. The defendant was the owner and lessor of the apartment the plaintiffs lived in during the child's gestation, birth, and first year of life. The apartment, the jury found, contained lead-based paint that had not been properly removed or encapsulated. The total verdict in favor of plaintiffs was $2,005,000.

When the case was tried, the child was less than four years old. A critical factor in determining damages required ascertaining the infant's prospects for obtaining postsecondary education degrees had he not suffered from lead poisoning

. In contesting damages, defendant's attorney attempted to show, through the use of expert economic testimony, statistics and cross-examination of the plaintiffs' experts, that because the child was "Hispanic," his likelihood of obtaining a Bachelor, Master, or Doctoral degree, and any corresponding elevated income, was improbable.

The father has a baccalaureate degree, the mother has a Master of Fine Arts; both held responsible income-generating jobs; the family was stable; and the parents were caring. Based upon his specific family background, had the child not been injured, there was a high probability of superior educational attainment and corresponding high earnings. Treated by experts as a "Hispanic," his potential, based on the education and income of "average 'Hispanics' in the United States," was relatively low.

At trial, the court ruled that, for the purposes of projecting damages, the specific characteristics of the child and his family, rather than the characterization of the child as a member of a particular ethnic group, must be used in determining damages. The ruling was based on the same constitutional and other factors relied upon in McMillan v. City of New York, 253 F.R.D. 247 (E.D.N.Y.2008). That case held that statistical evidence used to prove that a spinal cord-injured

"African–American" was likely to survive for fewer years than occidental persons with similar injuries violated the equal protection and due process clauses of the United States Constitution, and was inadmissible in computing life expectancy and damages.

II. Communities Disproportionately Harmed By Lead–Based Paint

Lead-based paint is the primary means by which children are exposed to lead. See Center for Disease Control and Prevention ("CDC"), Preventing Lead Poisoning

in Young Children 1, 4 (2005), http://www.cdc.gov/nceh/lead/publications/PrevLeadPoisoning.pdf (last visited July 28, 2015). Lead poisoning is often caused by ingesting paint chips or dust, likely to be found in older buildings in low-income neighborhoods. See CDC, Managing Elevated Blood Lead Levels in Young Children 4, 17 (2002), http://www.cdc.gov/nceh/lead/casemanagement/managingEBLLs.pdf (last visited July 28, 2015).

Lead paint poisoning, while dangerous for everyone, tends to manifest itself primarily in young children. Not only are young children more likely than adults to ingest lead paint, but children's bodies are particularly susceptible—biologically and developmentally—to the effects of lead paint. The poisoned population has other defining characteristics, namely that the young children are generally members of minorities from low-income families. Such families often occupy the older, deteriorating urban housing where lead paint remains prevalent. Their children have high risks of exposure to lead paint, especially since the severity of the physical and psychological effects of lead paint depends on the amount of lead paint ingested.

Laura Greenberg, Compensating the Lead Poisoned Child: Proposals for Mitigating Discriminatory Damages Awards, 28 B.C. Envtl. Aff. L.Rev. 429, 431–32 (2001).

Because low-income and minority families are more likely to occupy older homes with lead-based paint, the majority of children poisoned by lead in the United States are poor African–American and Latino children. See Martha Chamallas & Jennifer B. Wriggins, The Measure of Injury: Race, Gender, and Tort Law 1, 138–53 (2010) (analyzing how tort law and lead-paint case damage awards demonstrate racial and ethnic bias in the judicial system); CDC, Using GIS to Assess and Direct Childhood Lead Poisoning Prevention: Guidance for State and Local Childhood Lead Poisoning Prevention Programs 1, 2 (2004), http://www.cdc.gov/nceh/lead/publications/UsingGIS.pdf (last visited July 28, 2015) (concluding that children at greatest risk for lead poisoning

are those whose families are poor and live in substandard housing built before 1950, and that these children tend to be "African–American" or of "Hispanic" ethnicity); see also CDC, Surveillance for Elevated Blood Levels Among Children–United States 1997–2001, 52 Morbidity and Mortality Weekly Report No. ss–10 at 5 (2003) (discussing the lasting harms of lead exposure on children and the preventative measures taken to reduce such exposure); James L. Pirkle, Exposure of the U.S. Population to Lead, 106 Envtl. Health Perspectives 1, 11 (1998) (asserting new efforts must address the difficult problem of lead paint exposure, especially in older houses, as well as lead in dust and soil to remedy the prevalence of elevated blood-lead levels in children); Debra Brody et al., Blood Lead Levels in the U.S. Population, 272 J. Am. Med. Ass'n 277, 279 (1994) (highlighting how exposure to lead at levels that may adversely affect the health of children remains a problem especially for those who are minority, urban, and from low-income families).

The building containing plaintiffs' apartment was old. See Jury Instructions and Signed Verdict Sheet 6, July 10, 2015, ECF No. 83 ("Jury Instructions and Verdict"). It contained lead paint, which was, at least in part, covered by sheetrock or new paint installed by the landlord before the family moved in. See Trial Transcript ("Trial Tr.") 677:15–678:5, July 6, 2015.

"Until recently, children were identified as having a blood lead 'level of concern' " if their blood-lead test resulted in "10 or more micrograms per deciliter of lead in blood." CDC, Lead, Update on Blood Lead Levels in Children, http://www.cdc.gov/nceh/lead/ACCLPP/blood_lead_levels.htm (last visited July 28, 2015). In expanding protection against this serious health danger, the CDC now suggests professional monitoring of children with five micrograms per deciliter of lead in the blood. Id.

The child in this case had almost ten micrograms per deciliter of lead in his blood. See Trial Tr. 344:8–13, June 30, 2015.

III. Facts

A. Summary of Case

This case was tried by a jury. See G.M.M. v. Kimpson, ...