In Republic Waste Servs., Ltd. v. Martinez (Jan. 20, 2011, but only recently posted on Westlaw), plaintiff Elida Martinez was the common-law widow of Oscar Gomez. Gomez was killed while working on a garbage truck driven by a Republic Waste Services employee; after the accident, “Republic learn[ed] that Gomez had falsified immigration documents to gain employment with the company.”
Martinez sued Republic, claiming that Republic was negligent (state worker’s compensation law did not apply here), and received a verdict of $1.4 million, including $1.275 million largely for lost income (a common item in a wrongful death recovery). At trial, Republic sought to introduce evidence that Gomez’s expected income might well have been much less, because he might well have been deported; among other things, two weeks after Gomez died, Republic was raided, 50 to 55 employees were detained on suspicion of immigration violations, and 30 of those never returned to Republic. But the trial judge excluded the evidence, so the jury never considered Gomez’s immigration status and the possibility that he would earn much less money as a result.
The Texas Court of Appeals held that the trial court was right. The court concluded that the evidence was potentially relevant: “Future, unrealized events may be relevant to a jury’s determination of a decedent’s lost future income. For example, courts have admitted evidence in wrongful death actions to show that the deceased intended to change occupations or may have been promoted in the future.” And the court cited several other cases from other states taking the same view.
But the court also held that the trial judge didn’t abuse his discretion in excluding the evidence, because the judge could reasonably concluded that the “probative value [of the evidence was] substantially outweighed by the danger of unfair prejudice.”
The probative value of evidence showing only that the plaintiff is an illegal immigrant, who could possibly be deported, is slight because of the highly speculative nature of such evidence. Without a showing that a plaintiff will likely be deported in his working lifetime, the jury is invited to engage in conjecture and speculation regarding whether he will be deported, when he will be deported, and, if deported, whether he will return to the United States to work. As a result, the probative value of evidence concerning a plaintiff’s illegal immigrant status is low, while the prejudicial effect of this evidence is high….
[UPDATE: Two paragraphs from the opinion added to the block quote. -EV] Bradshaw’s testimony regarding the immigration raid comes no closer to establishing that Gomez would likely have been deported than his illegal immigrant status alone. The information necessary for the jury to reach such a finding is lacking from Bradshaw’s testimony. Bradshaw’s testimony that 50 to 55 employees were detained by federal authorities, due to “mismatched” paperwork, offers little to guide the jury to find that, had he lived, Gomez also would have been detained.
Bradshaw’s testimony that approximately 30 of the 50 to 55 detained employees never returned to Republic, including one employee who abandoned his van there, does not, without engaging in speculation and conjecture, rise to the conclusion that Gomez would have been deported, even if he had been detained.
The court cited some cases from other states reaching similar results, though it also cited one case reaching the contrary result. (The court also noted that it’s possible that illegal alien status might be introduced if there was evidence of a specific deportation proceeding targeting plaintiff’s late husband, or at least that the authorities had indeed identified him as a likely illegal alien.)
I’m skeptical about the Texas court’s decision. I certainly understand that there’s a danger that the jury would deny plaintiff a recovery just because he’s an illegal alien; that would be contrary to Texas law, as cited by the court of appeals. (The court reports that some other states take the same view, though it notes that one federal district court held that “policy underlying federal immigration law precludes recovery of projected future U.S. wages in a tort action.” And, as that district court pointed, out, the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB (2002) held that the NLRB may not award back pay to illegal aliens.)
Nonetheless, there’s also a danger that the jury would make defendant pay more than the pecuniary damage that its negligence has caused, precisely because the plaintiff’s late husband might well have been deported [UPDATE: either during the specific raid mentioned in the opinion, or later] and thus earned much less money than the over $1 million that the jury estimated he would have earned. To be sure, that’s speculative — but much such evidence is speculative. It’s speculation that the plaintiff’s late husband would have kept working until retirement age. It’s speculation that the plaintiff’s late husband would have had roughly the same salary that he had today. When lost earnings are reduced or increased because of planned changes of employment, or possible promotion, that’s speculation. Once we have juries deciding future lost income, it seems to me a good deal of such speculation is inevitable, and proper.
My sense is that on balance the probative value of the evidence is therefore quite substantial — in fact, it goes to the heart of the size of the damages award. And it’s hard for me to accept that this value is substantially outweighed by the risk of undue prejudice, to the point that the defendant should be denied the ability to introduce this evidence, and that the jury should be denied the ability to consider it.