Immigration Status in Personal Injury Claims

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Enacted in August 2016, Section 351.2 of the California Evidence Code reads:

(a)  In a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.

Effective 2016, the defense, in any personal injury can no longer divulge a claimant’s immigration status to a jury.

Immigration Status in Personal Injury Claims

Practically speaking, defense counsel may now only inquire into a person’s immigration status if their inquiry is relevant to the issue at hand.  Relevant evidence includes any evidence relevant to the credibility of a witness that has any tendency to prove or disprove any disputed fact.  Cal. Evidence Code section 210

Example Scenario 1:  Luis is an undocumented person who was severely injured in a trucking accident. He is now in a wheelchair which makes traveling back home to Mexico, let alone anywhere, very hard. As part of his damages he claims a lost of enjoyment for being unable to see his wife back home (his wife is a Mexican national with no ability to come to the United States). Here, the court may allow defense counsel to inquire into Luis’ immigration status if only to discredit this loss of enjoyment claim (before the eyes of the court only).

Practice Point: In the above scenario it would of course be foolish to make such a loss of enjoyment claim when Luis had no ability to freely cross the border because of his immigration status.

Immigration Status in Personal Injury Claims | Historically

Prior to Evidence C. sect. 351.2, a person’s immigration status could be divulged to a jury only if a judge determined, in private and away from the jury, that the injury claimant was indeed subject to deportation i.e. had not done anything to cure his immigration status since the date of their subject injuries.  If a person’s immigration status was allowed to be divulged to a jury, the person’s immigration status played heavily in determining future lost wages as well as future medical bills – as well as any other effects a victim’s status had on a juror’s preconceived biases.

Rodriguez v. Kline (1986) 186 Cal. App. 3d 1145:  If the court’s decision following a hearing is in the plaintiff’s favor, then all evidence relating to the injury victim shall be excluded and their projected earning capacity may be computed upon the basis of their past and projected future income in the United States.  Should the defendant prevail, then evidence of the plaintiff’s future earnings must be limited to those they could anticipate receiving in their country of lawful citizenship.

Immigration Status in Personal Injury Claims | Future Economic Damages

Because of the new law then, there is no potential limiting factor in awarding future medical damages or future lost wages to an undocumented person.

Example Scenario 1 (cont’d.):  At the time of his trucking accident, Luis was 36 years old working as a dry-waller at $25.00 p/hr. He worked 40 hours a week. Since he is now in a wheelchair, he will no longer be able to work and has a future lost wage claim that will be determined by calculating his yearly wage (x) the number of year in his work life expectancy (-) discounted by present day value, which amounts to well over a million dollars – instead of hundreds/thousands and the backlash of a juror’s biases.