by Bryan Lazarski
Senate Bill 41 adds Section 3361 to the Civil Code stating, “Estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender.”
SB41 aims to combat longstanding practices where race, ethnicity and gender are factored into the future lost earnings component of damage awards. As the legislative findings explain, “nearly one half of economists surveyed by the National Association of Forensic Economics said they consider race, and 92 percent consider gender, when projecting earning potential for an injured person, including children.” The new law recognizes the danger that arises when forensic economist experts estimate potential future earnings based on statistical tables that consider race, ethnicity and gender, including demographic tables from the Bureau of Labor Statistics’ Current Population Survey. Such estimations — particularly when made notwithstanding the individual’s achievements or potential — tend to disfavor plaintiffs who are members of certain protected classes.