The Impact of Plaintiff’s Immigration Status on Future Economic Damages in Personal Injury Cases

Author: Kristi Blackwell

November 19, 2015 8:15pm

Determining the immigration status of a plaintiff in a personal injury action is critical to evaluating the plaintiff’s claim for future economic damages, including loss of earnings and medical expenses. These damages can be greatly mitigated upon a showing plaintiff is an undocumented immigrant.

For example, in Rodriguez v. Kline (1986) 186 Cal. App. 3d 1145, the court considered the applicability of a plaintiff’s immigration status when calculating future loss of earnings. In that case, plaintiff was a Mexican citizen residing in the United States illegally. Plaintiff was injured in an automobile accident and filed a personal injury lawsuit.

The Court of Appeal held in cases where there is a question regarding a plaintiff’s citizenship and plaintiff is seeking to recover future loss of earnings, the trial court must determine the plaintiff’s immigration status as a preliminary question of law. In a
hearing held outside the presence of a jury, the defendant has the burden of proving the plaintiff is an undocumented immigrant who is subject to deportation. If the defendant meets the burden of proof, the burden shifts to the plaintiff to demonstrate, to the court’s satisfaction, he has taken steps to correct his deportable condition.

If the court rules in favor of plaintiff, it will exclude all evidence relating to the plaintiff’s immigration status, and plaintiff’s future loss of earnings will be computed based on what the plaintiff would have earned in the United States.

However, if the court sides with the defendant, evidence of the plaintiff’s future loss of earnings must be limited to what the plaintiff would have earned in his country of origin. This could result in a significant reduction to plaintiff’s recovery.

While the Rodriguez case gave us guidance on dealing with a plaintiff’s immigration status when calculating future loss of earnings, it left open the question of whether plaintiff’s future medical expenses should be calculated based on what they would cost in the U.S. or the plaintiff’s country of origin.

Similar to the court’s reasoning regarding future loss of earnings in Rodriguez, the defense can argue the award of future medical expenses to a plaintiff subject to deportation based on rates in the United States has the effect of allowing someone who is not lawfully entitled medical care in the United States to receive damages to which he is not entitled.

As a practical matter, the defense should determine in the early stages of the case whether the plaintiff’s immigration status will be an issue. This can be done by propounding Form Interrogatories to plaintiff, which will reveal information regarding plaintiff’s place of birth and whether plaintiff is making a claim for loss of income or earning capacity. The defense can then propound further special interrogatories to follow up regarding plaintiff’s immigration status.

At plaintiff’s deposition, defense counsel can frame questions that go to the standard set forth in Rodriguez, i.e., what steps plaintiff has taken to correct the deportable condition and whether he can correct the deportable condition.

Finally, the defense can seek to file a pre-trial motion limiting plaintiff to the cost of future loss of earnings and medical expenses in plaintiff’s country of origin. The resulting reduction could significantly impact the value of plaintiff’s case.

Kristi Blackwell is a Partner at Tyson & Mendes. She specializes in general liability, professional liability and business litigation. Contact Kristi at 858.459.4400 or

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