Publication Date



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 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.