Will United Passenger David Dao Get Justice from Jurors?

Will United Passenger David Dao Get Justice from Jurors?
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By now everyone has seen the video of law enforcement officers throwing Dr. David Dao around and dragging him off a United Airlines flight—dazed and bloodied.

But when viral videos and memes fade out, lawsuits ramp up. Dr. Dao has secured not one but two attorneys: one an expert in corporate law, the other a personal injury specialist.

The most obvious cause of action available relates to unnecessary use of force. But Dao’s attorneys might also strategically emphasize their client’s race and ethnicity (despite their current suggestions to the contrary). Dao is Asian — actually Vietnamese — and the story has gone viral in China. To the Chinese, the incident represents racism against Asians in the United States.

But if there is extensive anti-Asian bias in the U.S., would Dr. Dao get justice from jurors in a trial? Research conducted by our firm, ES Partners, suggests that he has little to worry about as an Asian doctor. Jurors don’t penalize Asian plaintiffs in awarding damages compared to white plaintiffs. And jurors might even have a slight bias in favor of plaintiffs with elite professions such as medical doctors.

While Asian plaintiffs weren’t at a disadvantage, we did find a significant racial bias in jury awards for personal injury cases. White jurors gave black plaintiffs 5 percent less in damages compared to white plaintiffs. That difference hides something even more interesting: white female jurors drive this entire impact, awarding black plaintiffs 10 percent less than white male plaintiffs. White men, on average, didn’t penalize black plaintiffs at all.

Digging into the demographics a bit deeper reveals that this penalty against black plaintiffs is levied primarily by college-educated women, who award them 17 percent less than white plaintiffs in general. For women without a college degree, the penalty is just 6 percent. (You can explore the results with our data app).

We didn’t set out to investigate racial bias among jurors in personal injury lawsuits. We were actually collecting data to predict juror generosity or stinginess for personal injury cases in general for our litigation product. Respondents in our research were pulled from the registered voter list in New Jersey (the jury pool) and decided awards for a series of lawsuit scenarios we presented to them.

Since we were interested in predicting a juror’s average tendency to generosity or stinginess, we included plaintiff profiles with each case that were randomly generated from a set of dozens of attributes (including race and ethnicity).

Usually, we use this procedure to test product attributes, combining forced-choice, conjoint decision tasks with the precision of clinical trials. It’s a better method of sorting out what matters, and by how much, to consumers. But this procedure can also be used to determine what plaintiff attributes matter, and by how much, to jurors.

Beyond race, we found some other juror biases. Plaintiffs in their 70s and 80s were consistently penalized by about 5 percent. Women with no college degree reduced awards to female plaintiffs by 8 percent, and men with no college degree gave a 15 percent bonus to plaintiffs with an elite profession.

But the intersection of the juror’s and the plaintiff’s race and gender stood out as significant variables both in terms of our research and the real world.

Jury bias against black defendants in criminal cases has been extensively explored, and race does seem to influence jury decisions in criminal cases. But little is known about bias in how jurors decide awards for personal injury cases.

Our findings suggest that many preconceived notions about who is biased and how their bias affects their decisions may be wrong.

In survey measures of explicit and implicit bias, women look, at worst, equal to men and often less biased than men. But those surveys measure attitudes, not behavior like our procedure does. And juror behavior, not attitudes, is what really matters in deciding outcomes in the courtroom. It’s risky to make decisions based on what people say, rather than what they do.

After all, who would have guessed the behavior of college-educated women is more biased than blue-collar men?

Adam B. Schaeffer, PhD, and Alexander J. Oliver, PhD, are co-founders of ES Partners, a clinical data science firm. Brock C. Akers is an attorney specializing in personal injury litigation at The Akers Firm, and a legal products advisor to ES Partners.  

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