Federal Judge Rejects Race-Based Life Expectancy Tables in $18.3 Million Award for Staten Island Ferry Crash Victim

On the evening of October 15, 2003, the Staten Island Ferry Andrew J. Barberi was approaching the St. George Terminal with roughly 1,500 passengers aboard when it struck a concrete maintenance pier at close to full speed. Assistant Captain Richard Smith, alone in the wheelhouse instead of with a second pilot as the ferry system's own rule required, had blacked out from extreme fatigue and painkillers. Eleven people were killed. James McMillan, a passenger, had a vertebra in his neck shattered by flying debris and was left a quadriplegic, dependent on round-the-clock nursing care. Smith and the ferry system's director, Patrick Ryan, later went to prison.

The claims were consolidated in the U.S. District Court for the Eastern District of New York under federal maritime law. The City tried to cap what the disaster could cost it by invoking the shipowner's limitation of liability statute, and lost: the Second Circuit held in March 2008 that the City had not acted with reasonable care, because it never enforced the two-pilot rule. Liability was therefore settled before McMillan's case was tried. Settlement talks in his case failed, so damages were tried in Brooklyn before Judge Jack B. Weinstein, sitting with an advisory jury. The counsel block of the court's published opinion lists Edward T. Cooper, Mitchell K. Aaron and Megan K. Gleason of Torgan & Cooper, P.C. (the firm now known as Torgan Cooper + Aaron) for McMillan, and the legal press identified Evan Torgan, who had met McMillan in the hospital four days after the crash, as his lawyer.

The most contested issue was how long McMillan was likely to live, because that figure drove the cost of his future medical care. The City put in statistical evidence that a spinal cord injured African American man would survive fewer years than people of other races with similar injuries. Weinstein rejected it in a published order on October 14, 2008, holding that race-based life expectancy statistics could not be relied on to calculate a claimant's damages. He wrote that the statistics are not scientifically acceptable in a heterogeneous population, that the racial gap tracks socioeconomic differences rather than race itself, and that equal protection and due process forbid saddling a claimant with a shorter life expectancy estimate on the basis of a racial classification. It was the first federal ruling of its kind and it has been cited ever since.

The advisory jury's recommendation was not binding. Weinstein made his own findings of fact on damages, amended in November and again in December 2008, and fixed McMillan's award at $18.3 million, the largest in any of the cases brought against the City over the crash. No appeal of the award appears in the public record.

What followed became its own dispute. Weinstein cut Torgan's contingency fee from one third to 20 percent, weighing among other things that McMillan had signed the retainer from his hospital bed days after the crash and that the City's liability had already been decided in the earlier proceeding, which another lawyer had handled. McMillan told the court he wanted his lawyer paid in full. 'I want him to have it. He worked for it,' he said, describing how Torgan had stayed with him through the ordeal. A magistrate judge recommended in 2010 that the reduced fee stand while finding no evidence that Torgan had acted improperly and no basis for any discipline. The fight was over how to divide money already recovered, which confirms the City paid.