What Do Immigrants Need to Know When Considering Personal Injury Litigation?

ByMatthew J. Focht in Personal Injury June 16th, 2016

In a recent case out of the Superior Court of Connecticut, Judicial District of Fairfield, a personal injury plaintiff argued that the fact that he “is an undocumented immigrant, resident or worker, does not bar him from recovering lost earnings, whether past or future; nor is it relevant to establishing an appropriate amount of damages.[1]”  In ruling on a motion in limine on the issue, the Court found that:

the defendant may use the terms [“undocumented worker,” “undocumented alien,” and “illegal alien”] when referring to the plaintiff in the event the plaintiff pursues an award for back pay or future lost wages, [subject to certain limitations], and may use these terms to describe witnesses who testify in the plaintiff’s behalf regarding the subject of the plaintiff’s rate of wages, hourly work week and methods of the payment of any such wages[.]  If such undocumented workers testify only to the facts surrounding the issue of liability and injuries, their undocumented status may not be the subject of any inquiry by the defendant.  If the plaintiff determines he will not be seeking lost wages, both past and future, his undocumented status is not relevant and may not be the subject of inquiry by the defendant.[2]

The Court in Guamamtario went on to hold that the defense would be not be barred from introducing any “evidence, argument, suggestion or inquiry regarding the plaintiff’s  immigrant or residency status and that the plaintiff may be deported or may have a desire or intentions, if any to return to Equador.  However, should the defendant present no evidence the plaintiff’s deportation is imminent or probable, or that the plaintiff intends to return to Equador, the defendant is barred from presenting argument, suggestion or inquiry regarding possible deportation or the possibility that the plaintiff could return to Equador.[3]

The key issue in the Guamamtario case was the fact that the plaintiff apparently intended on making a significant past and future lost wage claim.  The only evidence in support of the wage claim was expected to be testimony from the plaintiff’s employer as to his work schedule, hours, and rate of pay.  For this reason, the Guamamtario Court denied a request from the plaintiff that the defense be barred from “introducing any evidence, argument, suggestion or inquiry regarding the plaintiff’s lack of filing tax returns and/or the non-payment of taxes or any references to a tax identification number by the plaintiff or any witness who testifies at trial.[4]”  This was because “[t]o effectively test the credibility of the plaintiff, his employer, [the plaintiff’s expert witness regarding the issue of lost earnings] and other witnesses regarding the plaintiff’s wage claims, the defendant should be able to introduce evidence that no written records or documentation exists.  In weighing the opinion of an expert witness and his calculations regarding the plaintiff’s claims for lost wages a jury has the right to know the information that was available to the expert, including the facts that the expert had, and the documents or other physical evidence available to the expert and the expert’s opportunity and ability to examine those things, that form the basis for the expert’s opinion.[5]

Connecticut courts have taken the rationale and analysis set forth in the Guamamtario case and expanded its applicability to pretrial discovery.  The Superior Court of Connecticut, Judicial District of Litchfield, has held that “in [a] car accident case, with no pending lost wages claim…, inquiries into immigration status…are not within the permissible scope of discovery.[6]  As such, the Court entered a protective order prohibiting deposition questioning of the plaintiff regarding “any identification documents that the plaintiff submitted to receive his [driver’s license]; asking whether he has a green card, visa, or passport; asking whether he is a United States citizen or a citizen of another country; asking whether he has a social security number or other tax identification number; and/or asking any questions about the manner in which he entered this country.[7]

It is reasonable to expect that a Maryland court dealing with evidence of a plaintiff’s immigration status would make a similar ruling as the Connecticut courts hearing the Guamamtario and Jimenez cases.  Indeed, it is well established that undocumented immigrants have the right to access the court system in order to sue to enforce contracts and seek redress of civil wrongs, such as negligently inflicted personal injuries.[8]  In 2005, Maryland joined the growing list of states which explicitly recognized that an undocumented immigrant injured in the course of his employment was eligible for workers’ compensation benefits.[9]  To be certain, workers’ compensation is, for all intents and purposes, a personal injury remedy.[10]

Moreover, Md. Rule 5-403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Courts across the country have recognized that evidence of a party’s immigration status carries with it a great and possibly devastating potential for prejudice.[11]  In fact, the Supreme Court of Washington held in the Salas case that

[i]ssues involving immigration can inspire passionate responses that carry a significant danger of interfering with the fact finder’s duty to engage in reasoned deliberation.  In light of the low probative value of immigration status with regard to lost future earnings, the risk of unfair prejudice brought about by the admission of a plaintiff’s immigration status is too great.  Consequently, we are convinced that the probative value of a plaintiff’s undocumented status, by itself, is substantially outweighed by the danger of unfair prejudice.[12]

Finally, it is not likely that a Maryland court would permit an undocumented immigrant’s immigration status to be used for impeachment purposes at trial.  In order for a witness’ credibility to be impeached, Md. Rule 5-609 requires evidence of a conviction of a crime, plus such crime must be an “infamous crime” or other crime relevant to the witness’ credibility, and the court must determine that the probative value of admitting the evidence outweighs the danger of unfair prejudice to the witness or the objecting party.  In the overwhelming majority of cases, the witness will not have been convicted of “illegal immigration.”  Even if there was a conviction, it is doubtful that a Maryland court would consider a violation of immigration law to be serious enough to rise to the level of an “infamous crime.” And, as indicated above, the prejudicial effect of such evidence would far outweigh any probative value it may have at trial.


[1]               Guamamtario v. Sound Beach Partners, LLC, 2015 WL 467234 at *5 (Conn. Super. Ct. Jan. 6, 2015).

[2]               Id.at *6.

[3]               Id. at *9.

[4]               Id.at *12.

[5]               Id.

[6]               Jimenez v. Brooks, 2016 WL 1443594 at *10 (Conn. Super. Ct. March 15, 2016) (ellipsis added).

[7]               Id.

[8]               See, e.g., Montoya v. Gateway Ins. Co., 401 A.2d 1102 (N.J. Super. Ct. App. Div. 1979); Majlinger v. Cassino Constr. Corp., 25 A.D.3d 14 (N.Y. Sup. Ct. 2005) (finding no intention in the federal Immigration Reform and Control Act that Congress intended to deprive undocumented immigrants of their right to sue for personal injuries in state courts or to deprive them of the right to recover damages for lost wages).

[9]               Design Kitchen & Baths v. Lagos, 388 Md. 718, 882 A.2d 817 (2005); see also Rajeh v. Steel City Corp., 157 Ohio App.3d 722, 813 N.E.2d 697 (2004).

[10]             Mendoza v. Monmouth Recycling Corp., 288 N.J. Super. 240, 248, 672 A.2d 221, 225 (1996).

[11]             See United States v. Diaz, 494 F.3d 221 (1st Cir. 2007); United States v. Amara-Manzanares, 377 F.3d 39 (1st Cir. 2004); Salas v. Hi-Tech Erectors, 230 P.3d 583 (Wash. 2010).

[12]             Salas, 230 P.3d at 586-87.

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