Tuesday, February 17, 2015

No, No Puede!

Velasquez v. Centrome, No. B247080 (D2d8 Jan. 30, 2015) 

This is a toxic tort case. Plaintiff claims that workplace exposure to diacetyl—a chemical that smells like butterscotch or cheap California chardonnay—caused him severe lung injuries. The main issue in dispute is whether plaintiff is entitled to recover damages for the cost of a future lung transplant. 

That gives rise to an issue: plaintiff is an undocumented immigrant. There was some early testimony during an expert qualification hearing conducted under Evidence Code § 402—from plaintiff’s own expert—that he would have to “look into the issue” of whether plaintiff’s alienage might impact the United Network for Organ Sharing’s decision as to whether he is entitled to a new lung. According to the doctor, it “could have an impact.” Plaintiffs status was thus seemingly potentially relevant to a dispute he put at issue.

So, after the trial court decided it was relevant, to take away the sting, plaintiff consented to instructing the venire—now several days into a long voir dire—that plaintiff is unlawfully present in the US but that they should not take that fact into account for anything other than his potential eligibility for a lung transplant. Nobody in the venire claimed to take issue with plaintiff’s status. But interestingly, in empaneling alternates—who were given the undocumented status explanation from the get-go—almost a third said it would cloud their decision-making.

Plaintiff’s counsel moved for mistrials at every turn of this road. Including by proffering an expert who explained that the discrepancy between the panels complacence on the issue and the alternate panels significant problems with it went well beyond anything that could be explained by statistical randomness. He offered that it was likely that, by the time the instruction was given several days into voir dire, the potential jurors remaining in the venire may have bought into being empaneled, which made them less likely to chime in about their potential biases. Motions denied.

At trial, plaintiff’s exert testified that, under new policies recently put in place, UNOS was actually prohibited from considering a potential recipient’s immigration status in deciding who gets a lung transplant. During a subsequent § 402 hearing, defendants’ expert—who also had a UNOS affiliationessentially agreed. Plaintiff’s status was thus irrelevant after all! Oops.

Another mistrial motion, which the trial court again denied. The court offered to provide a curative instruction, but plaintiff—who clearly didn’t want the jury to be thinking about the immigration question any more—declined. The jury went on to render a verdict of yes on negligence, but no on causation, a win for the defense. The negligence findings were unanimous, the others resolved 9-3. Plaintiff appeals the denials of mistrials.

The court first addresses whether plaintiff forfeited his right to appeal when he consented to the court instructing the venire on his alienage and when he declined the curative instruction. He did not. Invited error requires a deliberate tactical decision on the part of the appellant. That is not what happened here. Plaintiff fought tooth and nail to keep the jury from hearing about his immigration status. His actions were simply making the best of a bad ruling to the contrary. Nor was plaintiff required to file a new trial motion to preserve the issue. Developing a factual record on a new trial motion was not necessary to facilitate meaningful appellate review in this case.

As to the merits, when an undocumented immigrant sues for personal injury but does not claim lost wages or earning capacity, his or her status is irrelevant. It has no bearing on liability. It is not relevant to the out-of-pocket cost of medical treatment or the extent of pain and suffering. And it does not tend to prove or disprove any fact relevant to the plaintiff’s credibility. Nor, given the testimony at trial, was plaintiff’s status relevant to whether he could get a lung transplant.

Indeed, even if the irrelevance had not been definitively established at trial, plaintiff’s expert’s pretrial § 402 testimony showed that the issue was, at best, marginally relevant to the transplant decision. Given the strong and well-recognized potential for prejudice entailed by telling a jury that plaintiff is undocumented, under the circumstances, the trial court would have abused its discretion by letting it in under § 352’s balancing test.

Given that error, the trial court also erred in denying a mistrial. A party is entitled to a mistrial when his “chances of receiving a fair trial have been irreparably damaged.” That standard was met when, having already told the jury that plaintiff was undocumented, the court determined that the information was not, in fact, relevant. There is a reasonable possibility that the jury could have come to a different result on causation had the prejudicial facts been excluded. The liability evidence was strong and the expert witness testimony on causation was disputed. Under the circumstances, a juror could have improperly “concluded that [plaintiff] would never have gotten sick but for working at [his workplace], which should never have occurred because he was in the country illegally.” In the face of that, plaintiff was entitled to a mistrial.

Reversed and remanded.

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