Can An Illegal Alien Collect Future Medical Specials in a Personal Injury Case?

And if so, are the future medical bills calculated based on US dollars or based on the cost of medical treatment in the client’s country of origin?  There appears to be no case law in California on point.  There is case law that clearly states that an illegal alien is only entitled to future wage loss based on his or her country of origin. 

We just received a Motion in Limine seeking to either strike our claim for future medical specials or to have them limited to the cost of medical treatment in our client’s country of orgin. 

Any thoughts?

 

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Answer
Richard Jaffe
Lake Success, New York
Personal Injury
1 (516) 358-6900

About
Attorney and Founding Partner of Law Office of Cohen & Jaffe, LLP

In Balbuena v. IDR Realty, decided by NY's highest court, plaintiff successfully argued for overturning of the Appellate Division's decision barring undocumented workers from recovering for certain categories of damages based upon their undocumented status. Balbuena is good news. It means a person's immigration status is not an automatic death for recovering damages. But immigration issues will still be litigated as one factor in determining the amount of damages  plaintiff should receive.  See, Barahona v. Trustees of Columbia Univ, 11 Misc. 3d 1035, a construction worker was injured while working at Columbia University. He sued. Attorneys for defendants demanded documents pertaining to plaintiff's immigration status. They claimed such information was relevant as it directly affected  plaintiff's claim for future lost earnings. Attorneys for plaintiff objected, saying defendants were not entitled to discovery because plaintiff's immigration status has no relevance to any issues. The court ordered the discovery. The state Court noted that a jury may consider immigration status as one factor in its determination of the damages. The court noted that in calculating the amount of future lost earnings, a jury may consider the likelihood that plaintiff will remain in this country. In Coque v. Wildflower Estates, plaintiff worker, who was an undocumented construction worker, was hurt when roofing tiles fell and collapsed the scaffolding on which he was working. He sued the roofer and developer. The developer argued that the plaintiff was not entitled to recover lost wages because he lacked legal immigration status. The Court rejected that argument, ruling that under Balbuena, an award for lost wages was not preempted by immigration law simply because the worker was undocumented. The court noted lost wages could be precluded if the worker had submitted false documentationto his employer, but no evidence of that existed in the record. The moral of Barahona and Coque: expect discovery requests from defendants concerning what documentation a worker gave his employer to prove his eligibility to work. If the worker submitted false documentation, recovery for lost wages might be precluded. Otherwise, under Balbuena, a worker's immigration status is only one factor to consider in determining damages. In Hernandez v. 151 Sullivan Tenant Corp., plaintiff was an undocumented alien working on a roofing project. The hoist to which he had attached his safety rope toppled over, causing multiple severe injuries. He sued.  The defendants argued that the worker was not entitled to recover past and future lost wages because he lacked immigration status, citing IRCA andHoffman Plastics. The court rejected that argument, relying on Balbuena and upheld awards of $2.5 million for past pain and $3 million for future pain and suffering.  Richard Jaffe, Esq. www.lcjLawFirm.com

01/18/2011

Answer
Arkady Itkin
San Francisco , California
Civil Litigation
(415) 640-675

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California Employment and Injury lawyer representing individual plaintiffs and small businesses in San Francisco Bay Area and Sacramento region.

Dear Mr. Choi,

Since it has been ruled a while ago that illegal aliens have exactly the same civil recovery rights, I can't see why their damages would be analyzed any differently from a lawful US resident.  
I would oppose the motion in limine, arguing that the claimant does not have any intention to go back to his home country and therefore all calculations should be based on the local rates, unless of course the claiment intends to go back to his home country.

Thanks,

Arkady Itkin

 

06/10/2009