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Undocumented workers win tort appeal

Two undocumented immigrants who were struck by a truck that veered onto the shoulder of Route 50 are entitled to a new trial on the issue of damages, the Court of Special Appeals has held; however, their status and actions they took to disguise it may factor into their ultimate recovery.

The decision overturns a jury’s defense verdict in favor of Robert F. Lee and his employer, Bay State Pool Supplies of Baltimore Inc. The plaintiffs, Rigoberto E. Domingos Ayala and Jose R. Rodas Santacruz, clearly established that Lee was at fault when he drove his truck into the one they were working on, the appeals court said.

Kevin J. McCarthy, the plaintiffs’ lawyer, said jurors let the immigration status questions color their deliberations.

“The case should have never gotten to the jury,” said McCarthy, of McCarthy & Winkelman LLP in Lanham. “Workers, whether illegal or legal, should be treated the same.”

Reviewing cases from around the country, the Court of Special Appeals said neither federal law nor a Supreme Court case from 2002 precludes an award of lost wages and damages to undocumented immigrants.

However, the issue may come up in regard to the plaintiffs’ credibility and damages, Judge Robert A. Zarnoch wrote for the unanimous three-judge panel. The decision provides several guidelines as to what evidence the jury could consider.

Daniel J. Moore of Moore & Jackson LLC in Towson, a lawyer for the defendants, said the plaintiffs’ credibility was a major part of his case, given their inconsistent statements about their immigration status.

“The Court of Special Appeals affirmed the discretion of the trial court,” said Moore.

Liability clear

Ayala and Santacruz were working for William Edward Comegys Jr., owner of Ebb Tide Tents and Party Rentals, at the time of the accident on a rainy day in September 2010, according to the opinion. The three men had just fixed the windshield wipers on a company truck on the shoulder of westbound Route 50, just past the Bay Bridge, when Lee’s truck slammed into the vehicle.

Comegys died as a result of the accident. Ayala and Santacruz suffered “suffered serious and permanent injuries to their lower extremities,” according to the opinion.

Santacruz, Ayala and Ayala’s wife filed suit against Lee and Bay State in November 2010, seeking damages for past and future medical expenses, loss of income and loss of earning capacity, according to the opinion.

The defense was based on Lee’s lack of memory of the incident. He said his last memory was seeing a vehicle to his left, “too close” to his lane, and that he never looked to the right shoulder, where Ebb Tide’s truck was pulled well off on the shoulder with its hazard lights blinking.

Based on the evidence, the court should have granted the plaintiffs’ motion for judgment as to liability, the Court of Special Appeals held.

“In not seeing a truck that was clearly there, Lee failed to keep a proper lookout and was thus negligent because that failure resulted in the accident,” Zarnoch wrote. “To hold that this ‘I-didn’t-see-it-and-I-don’t-remember’ defense without any real proof of justification is enough to force a negligence question to the jury would only encourage irresponsible behavior and foster bad tort law.”

Opened the door

The appeals court went on to address whether evidence of the plaintiffs’ immigration status would be admissible at the damages trial.

Ayala and Santacruz entered the United States in 2006 from their native El Salvador, eventually settling in Maryland, according to the opinion. Each illegally acquired a Social Security number and used it to find jobs and pay taxes, according to the opinion.

Ayala and Santacruz moved to exclude evidence of their immigration status in a pretrial motion. But Anne Arundel County Circuit Judge Paul G. Goetzke ruled there were valid questions over whether the men could legally earn the lost future income and medical expenses claimed in damages and that “the fact they misrepresented their immigration status on employment forms was relevant to their credibility,” according to the appellate opinion.

Immigration status, per se, is not generally seen as relevant to credibility, the Court of Special Appeals noted.

But Zarnoch agreed with the trial court that Ayala and Santacruz “clearly opened the door to questions about their immigration status” because they listed Social Security numbers on federal forms but said in applications for asylum they were neither U.S. citizens nor legal residents.

“[I]f on remand appellants choose to testify, their credibility may be challenged with questions asking them about these apparently inconsistent statements,” Zarnoch wrote.


Immigration status is clearly relevant to lost wages and medical expenses, the opinion notes. However, the trial judge must determine if it is also overly prejudicial.

If the evidence is admissible, the question is generally whether a plaintiff is entitled to earnings based on U.S. wages or those in his or her home country, which is in turn based on the likelihood of the person remaining in the United States.

“If there is evidence that the plaintiff is likely to return to his home country, whether by choice or by deportation, a country of origin pay rate is more appropriate,” Zarnoch wrote.

Zarnoch added it would be up to the trial judge to determine when immigration-related questions “veered too far on the side of prejudice.”

In the first trial, the immigration-related questioning of medical experts and the plaintiffs’ economic expert likely “went too far,” Zarnoch wrote, because they could not give testimony on costs outside of the U.S.

“Appellees would benefit from securing their own expert witness who could testify about the likely costs in appellants’ home country,” Zarnoch wrote.

Moore, the defense lawyer, said no decision has been made on whether his clients will appeal the appellate court decision. The opinion, he added, was “case specific.”

But McCarthy, the plaintiffs’ lawyer, said the opinion will guide immigration status issues at future trials.

“The status of a person in the U.S. shouldn’t affect how they are treated,” he said. “It’s not a defense to negligence or violation of the law.”



Rigoberto E. Domingos Ayala, et al, v. Robert Frederick Lee, et al, CSA No. 1288, Sept. Term 2012. Reported. Opinion by Zarnoch, J. Argued Sept. 10, 2013. Filed Dec. 18, 2013.


Should evidence of plaintiffs’ immigration status be admissible in a personal injury trial?


Yes, so long as the information is relevant and not prejudicial in considering damages.


Kevin J. McCarthy for petitioner; Daniel J. Moore for respondent.

RecordFax #13-1218-00 (28 pages).