Metropolitan News-Enterprise


Monday, February 2, 2015


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Jury Should Not Have Been Told Plaintiff Suing for Products Liability Was in U.S. Illegally—Panel


By a MetNews Staff Writer


The Court of Appeal for this district Friday granted a new trial in a products liability case, saying a Los Angeles Superior Court judge should not have told jurors that the plaintiff was in the country illegally.

Div. Eight, in an opinion by Presiding Justice Tricia Bigelow, said the disclosure of his immigration status likely prevented Wilfredo Velasquez from receiving a fair trial.

Velasquez appealed after judgment was entered on a jury verdict in favor of Centrome, Inc. He claimed that he developed a rare and life-threatening lung disease as a result of inhaling particles from the company’s products, while working for a company that makes food flavorings.

In considering a motion in limine to exclude all evidence of Velasquez’s immigration status from the trial, Los Angeles Superior Court Judge Anthony Mohr initially said it was “clear” the evidence was “unduly prejudicial,” but after holding an Evidence Code §402 hearing on the matter, found the prejudice outweighed by the evidence’s probative value.

The judge reasoned that because Velasquez was seeking to recover the cost of a lung transplant, and because a medical expert testified that his lack of lawful immigration status might make him ineligible for the transplant, that status was relevant. Jurors were told of Velasquez’s status during voir dire, and a defense motion for mistrial was denied.

In concluding the trial judge erred, Bigelow said the evidence was “only nominally relevant,” since the expert only said Velasquez’s immigration status would be considered, not that it would be disqualifying. In addition, she pointed out, the doctor only testified with regard to the practice at his facility, UCLA Medical Center, and not as to what might happen if the plaintiff sought a transplant elsewhere in the United States, or in a another country.

Bigelow wrote:

“As Velasquez and the amici parties accurately point out, cases both in California and in multiple other jurisdictions have recognized the strong danger of prejudice attendant with the disclosure of a party’s status as an undocumented immigrant….In such cases, reviewing courts have found that rulings to exclude evidence of a party’s immigration status were not error, or that admitting evidence of a party’s immigration status was error because the evidence was irrelevant to any material issue or because it was only marginally relevant to any material issue, and that the error justified reversal.  We agree.”

Mohr, she noted, eventually acknowledged that the testimony about the plaintiff’s immigration status “had no value.” In light of that, she said, he should have granted a mistrial.

The issues at trial, she said, were sufficiently contested—the jury verdict was 9-3 in favor of defendant—that the disclosure of the plaintiff’s status likely tipped the balance, Bigelow said.

Attorneys on appeal were Raphael Metzger, Kimberly A. Miller, Kathryn A. Saldana, and Kenneth A. Holdren of the Metzger Law Group and Brian P. Barrow of Simon Greenstone Panatier Bartlett for the plaintiff, and David M. Axelrad and Bradley S. Pauley of Horvitz & Levy; Peter L. Garchie and Ruben Tarango of Lewis, Brisbois, Bisgaard & Smith, and Craig S. Barnes and Robert Kum of Sedgwick for the defendant.

Amici for the plaintiff were The Hastings Appellate Project, People for the American Way, the ACLU Foundation of Southern California, National Immigration Law Center, California Rural Legal Assistance Foundation, Consumer Attorneys of California, and The Amicus Project at Southwestern Law School.

The case is Velasquez v. Centrome, Inc., B247080.


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