Admissibility of Plaintiff’s Immigration Status
Long before immigration became a hot button political issue, plaintiff’s lawyers worried about how jurors might respond if they learned that a plaintiff was in the United States illegally. Defense lawyers have often gone to great lengths to try to get this type of evidence in front of juries. Recently, the Court of Appeal for the Second District issued an opinion that lands squarely on the side of keeping the plaintiff’s immigration status out of evidence unless it is clearly relevant to a material issue.
In Velasquez v. Centrome, Inc., 2015 DJDAR 1362, the plaintiff alleged that he had contracted a lung disease after exposure to the chemical diactyl, which was manufactured by the defendant. One of the issues at trial was whether plaintiff would need a lung transplant in the future to treat his condition. Defense counsel argued that plaintiff’s status as an undocumented alien was relevant because it might factor into a hospital’s decision whether or not to give him a transplant.
During a pretrial Evidence Code section 402 hearing, one of plaintiff’s experts testified that he would have to “look into” whether plaintiff’s immigration status would be a factor in the transplant decision, but that he did not know what the specific guidelines were on that subject. Based on that testimony, the trial judge ruled that plaintiff’s immigration status would be admissible because it might be a factor that a hospital would consider. Later, during trial, both sides’ experts testified that, in fact, a rule had recently been enacted that prohibited a patient’s immigration status from being considered at all in the transplant decision process. Based on that testimony, the trial judge reversed his earlier admissibility ruling, but denied plaintiff’s counsel’s motion for a mistrial. By that time, the jurors had already heard, during voir dire, that plaintiff was in the U.S. illegally. The jury subsequently returned a defense verdict.
The Court of Appeal held that “when an undocumented immigrant plaintiff files a personal injury action, but does not claim damages for lost earnings or earnings capacity, evidence of his or her immigration status is irrelevant.” The Court recognized the “very real” and “very strong” prejudicial impact of such evidence. Even assuming that plaintiff’s immigration status was “nominally” or “marginally” relevant to whether he would receive a lung transplant, such relevance was greatly outweighed by the prejudicial impact. Thus, the Court of Appeal held that, before the trial judge had even heard the subsequent testimony from both sides’ experts, he should have excluded any evidence regarding plaintiff’s immigration status.
The plaintiff in Velasquez did not seek loss of earnings, but of course in many personal injury cases, that is an important item of damages. Immigration status is considered relevant to future loss of earnings because if a plaintiff were ultimately deported, his future earning potential would be determined by what he could earn in his home country.
However, we have successfully kept such evidence out at trial, based on the argument that the defendant has the burden of proving that plaintiff: (1) is an undocumented alien and (2) is likely to be deported in the near future. See Clemente v. State of California (1985) 40 Cal.3d 202; Rodriguez v. Kline (1986) 186 Cal.App.3rd 1145. Defense counsel can typically prove the former, but the latter arguably requires expert testimony from an immigration expert, and defense counsel is often unprepared to offer such evidence. If the plaintiff is likely to remain in the U.S. indefinitely, despite his undocumented status, then his future earnings loss should be based upon what he will earn here.
Somewhat lost in this whole discussion, however, is the question of how prejudicial it would actually be for a jury to learn that a plaintiff is an undocumented alien or whether it would be prejudicial at all. In Southern California, it is certainly well understood that undocumented workers perform a variety of important jobs here and that, if they were all suddenly deported, the economy of the area would grind to a halt.
Some years ago, we held a focus group in a case in which the plaintiff was rendered a paraplegic as a result of unsafe working conditions at a garment factory. We presented the case to the focus group without informing them that the plaintiff was an undocumented alien. Then, after they had deliberated for awhile, we provided them with that information and asked whether it would change their views of the plaintiff’s case. They said that it would, but not in the way that we expected. Several focus group members expressed the view that because the plaintiff was undocumented and therefore at risk for deportation, it was easier for the defendant to have taken advantage of him by exposing him to unsafe conditions. He was not in a position to complain about the working conditions. So, on balance, it appeared that plaintiff’s immigration status actually helped his case. That is not to say that we would have offered the evidence at trial, but it did cause us to question our assumption that such evidence is automatically prejudicial to the plaintiff.
In any event, should plaintiff’s counsel seek to keep the plaintiff’s immigration status out of evidence in a given case, the Velasquez opinion certainly helps that cause, particularly where the probative value of the evidence is weak.