Illegal Immigrant Status Barred From Consideration By Jury
June 22, 2011 Posted By Barry Meade Trial Practice
The First Department recently ruled in Angamarca v. New York City Parnership Housing Development Fund, __ A.D.3d __, 2011 NY Slip Op 5361 (1st Dep’t 2011) that the lower court was correct to bar any testimony of the plaintiff’s illegal immigration status because that testimony would be unfairly prejudicial and was not relevant to the issue of damages.
At trial plaintiff was awarded $20 million in damages. The Appellate Division confirmed the judgment and increased plaintiff’s award for past and future suffering.
Defendants’ counsel was precluded from examining plaintiff about his immigration status. Although the court noted that a plaintiff’s immigration status may be a legitimate factor in litigating a lost wages claim, the court found that it was not a factor in mitigating damages. The court stated that it applied the decision in Balbuena v. IDR Realty LLC, 6 NY3d 338, 845 N.E.2d 1246, 812 N.Y.S.2d 416 (2006). The facts that plaintiff was in this country illegally and that he had expressed an interest to return to his native country, Ecuador, were not compelling to the court. Interestingly, the court noted that defense counsel was not prepared to offer evidence at trial that medical costs were lower in Ecuador; and, in fact, the trial court had precluded expert evidence on the issue because of defendant’s untimely disclosure. Accordingly, the court stated that under the “unique facts of this case” the jury’s determination of future medical expenses in Ecuador were speculative.
Justice Peter Tom wrote a dissent noting that the majority misapplied Balbuena, because that case did not consider plaintiff’s immigration status in regards to any item of damages. Furthermore, the judge noted in his dissent that it was unfair to not consider the fact that plaintiff was likely to return to Ecuador. Judge Tom noted that although plaintiff had testified in depositions that he intended to return to Ecuador, his experts presented evidence of the cost of future medical care based solely on the cost of medical care in this country. Justice Tom wondered how the majority decision could be reconciled with a case where a plaintiff is visiting the United States on a temporary visa before returning to a nation where medical care is provided at no cost. He noted that it did not seem rational to permit the trial court to withhold those facts from the jury and allow the plaintiff to present evidence valuing damages for future medical care at the cost of care in this country.
While Angamarca seems destined for the Court of Appeals, the court in Angamarca, nevertheless, was clear that its decision was based upon the unique facts of that case. Therefore, it appears that if defense counsel currently wishes to utilize a plaintiff’s immigration status to attempt to mitigate damages, he must be prepared for a battle. At a minimum, counsel must have strong evidence that the plaintiff is likely to return to his home country. Counsel must also be prepared to introduce expert testimony to establish the economic differences between medical care in this country and plaintiff’s home county. This should probable be done by exchanging an expert report well in advance of trial so as to avoid any surprise, and prevent preclusion.