In a personal injury action arising out of a construction accident, the plaintiff (P) had been seriously injured when he fell from scaffolding surrounding a building that was being renovated. P sued the company that had supplied the scaffolding (D), claiming that the scaffolding was in violation of safety standards established by the Washington Administrative Code.

It was undisputed that at the time of the accident, P was an undocumented immigrant. He was living in the state of Washington on an unexpired visa.

A major issue prior to trial was whether D would be able introduce evidence of P’s immigration status. The trial court ruled that if P claimed damages for impairment of future income, his immigration status would be relevant on the issue of his future earning capacity. On the other hand, if P made no claim based upon future earning capacity, his immigration status would be irrelevant and inadmissible.

At trial, P chose to seek damages for loss of future income, and D was allowed to introduce evidence of P’s immigration status. The trial resulted in a defense verdict, and P appealed.

Treating the issue as one of first impression in Washington, Division 2 of the Court of Appeals saw no reversible error in admitting evidence of P’s immigration status. The court acknowledged that in a criminal case, the defendant’s immigration status is often regarded as too prejudicial to be admissible.

The court said that in civil cases, courts in other jurisdictions are divided – with some holding that a plaintiff’s immigration status is admissible on the issue of future earning capacity, while others have held to the contrary.

After a review of cases from other jurisdictions, the court concluded that the best rule would be something of a compromise – that “evidence of a party's illegal immigration status should generally be allowed only when the defendant is prepared to show relevant evidence that the plaintiff, because of that status, is unlikely to remain in this country throughout the period of claimed lost future income.”

In the present case, the court concluded, D had not shown that P was unlikely to remain in the country, but P waived any error in this regard by raising the issue late in the trial, by not providing the trial court with sufficient legal argument on the issue of admissibility, and by not requesting any limiting instructions. In the end, the Court of Appeals affirmed. Salas v. Hi-Tech Erectors, __Wn.App.__, 177 P.3d 769 (2008) (Div.2, Baker, J).

This article reprinted with permission is excerpted from Karl Tegland’s monthly newsletter, Litigation Today. Each issue includes Mr. Tegland’s commentary and practice tips in the areas of evidence, civil procedure, and appellate procedure. Each issue also includes an in-depth essay on a selected topic, complete coverage of all rule amendments, state and local, and citations to leading law review articles.

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