Metropolitan News-Enterprise


Thursday, June 5, 2003


Page 1


C.A. Revives Suit, Questions Judge’s Fairness, Lawyer’s Ethics


By KENNETH OFGANG, Staff Writer/Appellate Courts


An Orange Superior Court trial in which a jury rejected an undocumented immigrant’s medical malpractice claim was tainted by apparent judicial bias and by the defense attorney’s “skewering” a plaintiff’s witness whom the lawyer’s firm was representing in another case, the Fourth District Court of Appeal ruled yesterday.

Div. Three granted a new trial to Miguel Hernandez, who claims that Dr. Richard M. Pacius, an anesthesiologist, damaged a nerve in the plaintiff’s throat during an operation designed to relieve wrist, arm, and shoulder pain resulting from a work accident.

The court ordered that the case not be returned to Judge James M. Brooks, whose comments about illegal aliens were “wholly out of accord with recognized principles of fairness,” Justice Raymond Ikola wrote for the Court of Appeal

Motion in Limine

Brooks made the disputed remarks in denying a motion in limine that would have kept out evidence of Hernandez’s alienage and immigration status. The plaintiff’s attorney, Kent M. Henderson of the Law Offices of Federico Castelan Sayre, argued that since Hernandez was not claiming lost wages or future earnings, there were no issues in the case to which such evidence would be relevant.

Brooks said:

“There’s a lot of jurors ... Mr. Henderson ... as you may find out sadly at the end of this trial, [who] feel that anyone that comes into this fine country illegally, even for the motive of working, to come in illegally and then try to take advantage of our system for legal setup for legal resident, that we all pay money to support, pay their salaries, pay the buildings, yada, yada.

“If those people come in illegally, get caught up in the system, and then go through the system as if they are legal by phoneying up an I.D. or social security number, lying and getting treatment here, getting education here, whatever it is, here illegally, it’s like forfeited ab initio. It’s just without any claims, without any pity.

“It’s too bad this poor gentleman hurt his foot, hand, whatever, but he came here to work illegally. So he’s running the risk of getting injuries. He’s running a risk of getting injured on any job if he is injured and outside the system. Tough. That’s your problem.”

Brooks went on to suggest that Hernandez’s immigration status was relevant to his credibility, since he was “here claiming this hoarseness has impacted his life so much he’s entitled [to] a ton of money from this good doctor.”

He explained:

“Credibility goes to lying, forging, things like that. Not just crossing the border illegally. You can cross the border and sleep, cross the border and hug a tree illegally. That’s fine. But when you cross the border and hug the tree and then get injured or have a baby and want to go through our system and have U.S. taxpayers pay for it, and then it’s done poorly, then you sue them and document some paperwork so you can maintain an action to get money, I think a juror has to know all the facts....”

Denying the motion was “absolutely” the wrong ruling, Ikola wrote for the appellate panel, since the lack of wage claims made Hernandez’s status irrelevant and the use of it by the defense “highly inflammatory.”

The justice acknowledged that no evidence of the plaintiff’s immigration status was actually introduced. But the denial of the motion was still prejudicial, Ikola said, because the doctor’s attorney, Constance Endelicato, said in opening statement that the plaintiff’s alleged injury “certainly has not caused him any loss of earnings because he shouldn’t be working here legally because he doesn’t have his proper documentation.”

Endelicato, a Newport Beach-based partner in the firm of Tuverson & Hillyard, also came in for criticism for her blazing attack, both in cross-examination and closing statement, on Dr. Fred Aengst.

The doctor, who originally saw Hernandez in connection with his workers’ compensation claim, was questioned about a number of malpractice suits and a professional discipline action, then referred to in final arguments as “a liar” who “had the guts to come in here and lie” to the jury. Endelicato also accused the doctor of performing “botched surgeries” and of conduct “involving dishonesty and corruption.”

Conflict Cited

The problem with all of that, Ikola said, is that Aengst was a Tuverson & Hillyard client and many of the actions that Endelicato was referring to were matters in which her firm was his counsel. The judge, he said, should have declared a mistrial rather than allow an attorney to “destroy[ ] her own client’s professional reputation.”

The court directed that Endelicato send a copy of its opinion to the State Bar.

Endelicato told the MetNews yesterday that she had no knowledge that an attorney in her firm’s Los Angeles office was representing the doctor until she got to trial, and that Aengst never mentioned it to anyone at the firm, even though she told him at deposition who she worked for and gave him a Tuverson & Hillyard check to cover his witness fee.

Everything she questioned him about was a matter of public record, she added.

Henderson said he was grateful his client will get another chance to have the case heard, given that he had to try the first one before “a judge who was not very sympathetic to my client’s position.”

The case is Hernandez v. Pacius, 03 S.O.S. 2801.


Copyright 2003, Metropolitan News Company