Case Note: Ayala v. Lee

If you’ve ever wondered how a trial judge should deal with proffered evidence that a personal injury plaintiff is an “undocumented immigrant,”¹ Ayala v. Lee, 215 Md. App. 457, 81 A.3d 584 (2013), provides some answers and raises a few questions of its own. Ayala arose from a collision that took place when Lee drove his employer’s truck into a parked truck on the side of Route 50 in Anne Arundel County resulting in severe, permanent injuries to Plaintiffs Ayala and Santacruz. After hearing extensive testimony on the Plaintiffs’ immigration status throughout trial over Plaintiffs’ objections, an Anne Arundel County jury returned a defense verdict. On appeal, the Court of Special Appeals reversed, finding that Lee and his employer were negligent as a matter of law, and remanding the case for a new trial on damages. In its reported opinion, the Court of Special Appeals took the opportunity to address the relevance of Plaintiffs’ immigration status in light of its potential impact on the prospective trial on damages. Although this Note focuses on how the Court dealt with evidence of Plaintiffs’ immigration status, the case is noteworthy for how it explored the duties to make a proper lane change and keep a proper lookout, and its finding that Defendants were negligent as a matter of law.

Ayala and Santacruz (“Plaintiffs”) hail from El Salvador. Each entered the United States in 2006 without presenting to federal immigration authorities. They settled in Maryland. Each obtained an illegally secured Social Security Number and used it to get a permanent resident card, seek employment, and pay taxes. They were, therefore, undocumented immigrants.

Plaintiffs moved the trial court in limine to exclude evidence of their immigration status, suggesting that their immigration status was irrelevant because it neither served to bar their right to bring the action nor was it a legitimate defense for the Defendants’ illegal and negligent actions, and was instead being presented to prejudice the jury against them.

In opposition to Plaintiffs’ motion, Defendants argued that evidence pertaining to immigration status was relevant because Plaintiffs were undocumented immigrants who were prohibited by federal immigration law from earning any wages in the United States.

The trial court found that because Plaintiffs had asked for income-based damages, they had opened the door to inquiries about their immigration status including whether Plaintiffs could legally earn the income they were claiming. The trial court also found that the fact that Plaintiffs misrepresented their immigration status on employment forms was relevant to their credibility

The Court of Special Appeals began its analysis of the admissibility of Plaintiffs’ immigration status by reviewing the Immigration Reform and Control Act of 1986 (“IRCA”) and the Supreme Court’s application of IRCA in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002)(holding IRCA foreclosed the NLRB from awarding backpay to an undocumented alien who had never been legally authorized to work in the United States). The Court of Special Appeals noted that “[w]ith the IRCA, Congress declared ‘it is unlawful for a person or other entity to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien . . . with respect to such employment.’” Id. at 595. Nonetheless, it found that “the IRCA and its enforcement policies typically penalize employers rather than employees, and no federal statute or Supreme Court case has directly addressed the question of whether undocumented immigrant plaintiffs are entitled to wage- and medical-based damages in personal injury cases.” The Court of Special Appeals noted that the Supreme Court’s holding in Hoffman was limited to NLRB matters and “has not been expanded to preclude other wage-based damages, such as workers’ compensation benefits or lost wages.” Id. at 596.

The Court of Special Appeals then considered Design Kitchen & Baths v. Lagos, 388 Md. 718, 721 (2005), in which the Court of Appeals held that an undocumented immigrant could receive workers’ compensation benefits². In Lagos, the Court concluded “that neither the IRCA nor Hoffman mandates denying awards of lost wages or medical expenses to undocumented immigrant employees solely because of their immigration status.” Id. at 596.

After concluding that federal law does not preclude the award of lost wages or medical expenses to an undocumented immigrant in a personal injury action, the Court of Special Appeals turned to the issue of admissibility. The Court wrote that “[i]mmigration status is relevant to a claim for lost wages for the simple reason that the legal ability to work affects the likelihood of future earnings in the United States.” Id. at 597 (citations omitted)³ In determining whether this relevant evidence was substantially outweighed by the danger of unfair prejudice, under a Rule 5-403 balancing test, the Court found that:

[c]ourts that have balanced the relevance and prejudice inquiries have frequently come down on the side of "prejudicial" because of the low probative value of evidence of immigration status. The risk of deportation of an undocumented immigrant is very small, and the majority of courts that have considered the issue have held that the mere chance of deportation is not a sufficient basis for the introduction of immigration-related evidence.

Id. (citations omitted). In instances where a trial court has determined that evidence of a party’s immigration status is not unfairly prejudicial, the Court observed that its relevance would typically relate “to whether a party is entitled to lost wages at a United States pay rate or the home country rate.” Id. at 598 (citations omitted). The Court noted that a United States pay rate would be more appropriate if it is unlikely that a plaintiff will be deported or if he demonstrates a long history of working in the United States. Conversely, the Court suggested that a home country pay rate would be more appropriate if there is evidence that the plaintiff is likely to return to his home country by choice or deportation. While the Court did not state expressly, unless the plaintiff is at risk of imminent deportation, the above analysis logically applies only to a future loss of earnings or loss of earnings capacity claim, rather than a past lost earnings claim.

Concerning its admissibility for purposes of witness credibility, the Court of Special Appeals held that “[i]mmigration status alone does not reflect upon an individual's character and is thus not admissible for impeachment purposes.” Id. (citations omitted). While immigration violations involving false statements, like false employment papers, are more likely to be relevant, they are still subject to a detailed Rule 5-403 balancing test regarding the likelihood of prejudice. Id. (citations omitted). “Further, the relevance of an immigration-related false statement, standing on its own, is limited if the party against whom it is offered is not charged with an immigration-related crime.” Id. (citations omitted).

On this backdrop, however, under Rules 5-802.1(a) and 5-613, the Court of Special Appeals found that Plaintiffs opened the door to questions about their immigration status when their answers to interrogatories⁴ differed substantially from documents they later submitted as evidence, such as tax returns containing the illegal social security numbers and their applications for asylum. Id. at 599.

Accordingly, on remand, if they choose to testify, the Court of Special Appeals ruled that Plaintiffs could be cross-examined about the inconsistencies in their answers to interrogatories and documents supporting their lost wage claim. In addition, the Court delineated those factors that the jury should weigh in determining Plaintiffs’ losses, to include:

whether there is an imminent risk of deportation; how long the party has been in the United States; his or her work history in the United States; whether he or she has a family in the United States; what the United States wage rate is; and what the comparable home country wage rate would be, among other considerations.

Id. Further, the Court found the that immigration-related questioning of medical experts and Plaintiffs’ economist should be limited to establishing that the numbers on which those witnesses relied were based on United States dollars⁵. Lastly, the Court noted that if the Plaintiffs’ asylum applications “have made some progress, this would be relevant to the question of whether they would leave the United States” (assuming that if the applications were approved, Plaintiffs would stay and implying United States wage rate would apply). Id.

In light of the Ayala opinion, consider doing the following:

• Determine your client’s citizenship before he answers interrogatories or is deposed.
• Determine whether your client has been charged with an immigration-related crime.
• If your client is an undocumented immigrant, counsel him not to state otherwise.
• If your client has serious injuries and has a potential past or future lost wage claim, and has used an illegally obtained social security number, counsel him about the pros and cons of abandoning the lost wage claim to keep out evidence that he illegally used a social security number (if you are going to maintain the lost wage claim, prepare to address this issue throughout the case to overcome the jury bias that will likely arise from the client’s deception).
• Object to interrogatories and deposition questions concerning immigration status and move for a protective order concerning such information.
• If your client used an illegally obtained social security number, make sure he testifies honestly about this at his deposition (over your objection) so that it does not become an independently admissible statement used to attack his credibility, even if no lost wage or loss of earning capacity claim is brought.
• File a motion in limine and be prepared to preserve your record for appeal with appropriate trial objections.

¹ In keeping with the use of “undocumented immigrant” by the General Assembly, the Court embraced this term while rejecting “illegal alien.”

² The Court of Appeals wrote that IRCA "itself gives no indication that Congress intended the act to preempt state laws whenever state laws operate to benefit undocumented aliens." Id. at 738 (quoting Dowling v. Slotnik, 712 A.2d 396, 404 [Conn. 1998]).

³ On the other hand, it also wrote that “immigration status is irrelevant on the question of liability.” Id. at 597, FN 16 (citations omitted).

⁴ The Court pointed out that under Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 503 (W.D. Mich. 2005), Plaintiffs could have objected to the interrogatories and not answered them (by moving for a protective order).

⁵ In other words, “any further attempt to elicit their opinion on costs outside of the country would be irrelevant.” Id. The Court did, however, suggest that the defendants obtain their own expert to testify about the likely costs in plaintiffs’ home country. Id.