ILLEGAL ALIEN CONSTRUCTION WORKER SUFFERS BRAIN DAMAGE IN ACCIDENT; KEEPS MONEY DAMAGES AWARD BASED ON FUTURE TREATMENT IN U.S., NOT ECUADOR

Court: Supreme Court, Appellate Division, First Department, New York.

Case: Angamarca v. N.Y.C. Partnership Housing Development Fund, Inc.

Date: June 21, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn Queens accident injury lawyer)

Comment: Jury awarded accident victim construction worker $16 Million Dollars to cover his future medical care, based on U.S. costs. Should defense have been permitted to inform the jury of the plaintiff's nationality and the limited duration of his intended stay in the U.S. The majority says "no." The dissent says, "yes." 　

This action arises out of a construction site accident. Plaintiff, an undocumented alien from Ecuador, emigrated to the United States in 2001. In 2002, plaintiff was hired as a construction worker by third-party defendant Roadrunner Construction Corp., despite its knowledge of his immigration status. Roadrunner never requested a social security number from plaintiff and paid him in cash or by check, and never withheld any payroll taxes from his wages.

On October 30, 2003, plaintiff was working on a construction project in which townhouses were being built by Jefferson Townhouses, LLC (Jefferson,) the owner of the property, which had hired Roadrunner to do carpentry work. Plaintiff was performing his work on the roof of a townhouse, framing a 30-foot wall outside of the unit, when he fell two stories to the second floor through an improperly covered opening in the roof. Plaintiff sustained severe injuries, including traumatic brain injury and multiple fractures of the vertebrae.

On November 2, 2004, plaintiff commenced this action against Jefferson, among others. This Court found that plaintiff was entitled to partial summary judgment on liability based upon the violation of Labor Law § 240(1).

Meanwhile, the matter proceeded to trial on damages, at the conclusion of which, the jury found that plaintiff sustained total damages in the sum of $20 million: 1) $100,000 for past pain and suffering, including loss of enjoyment of life; 2) $1,531,172 for past medical expenses; 3) $74,013 for past loss of earnings; 4) $1,000,000 for future pain and suffering, including loss of enjoyment of life for 40 years; 5) $16,721,684 for future medical expenses for 40 years; 6) $573,131 for future loss of earnings for 23 years.

Jefferson appeals from the judgment seeking a new trial on the ground that the trial court improperly precluded it from cross-examining plaintiff and other witnesses about plaintiff's immigration status and his desire, expressed prior to the instant accident, of returning to Ecuador after he had earned enough money in the United States. Defendant argues that the jury should have been allowed to consider such evidence in determining its award of future lost earnings and medical costs. Defendant also argues that the damage award for future medical expenses was excessive. Plaintiff cross appeals, contesting the adequacy of the damage award for past and future pain and suffering.

Any argument, by defendant, that plaintiff was subject to deportation to Ecuador or had expressed an interest, prior to the accident, in some day returning to Ecuador, in an effort to suggest that plaintiff would incur lower medical expenses in Ecuador than in the United States, would also have been inappropriate. Contrary to the dissent's suggestion, defendant proffered no evidence that deportation was anything other than a speculative or conjectural possibility. The speculation that plaintiff might at some point be deported or voluntarily return to Ecuador was so remote that it rendered the issue of citizenship of scant probative value to the calculation of damages.

Moreover, defendant does not dispute that it was not prepared to show relevant evidence at trial that, had plaintiff returned to his native country, his future medical expenses would have been lower than those awarded by the jury. In fact, the trial court precluded purported expert testimony on this very same issue because of its belated disclosure--less than a week before trial. Defendant does not contest that ruling in this appeal. Significantly, defendant was not prepared to present evidence from any source that would have guided the jury in determining whether plaintiff's future medical expenses would have been lower in Ecuador, and to what extent, than those awarded by the jury. Thus, under the unique facts of this case, the jury's determination of future medical expenses in Ecuador would have been mere speculation.

We turn to the issue of damages. The award of $100,000 for past pain and suffering and $1 million for future pain and suffering over 40 years deviates materially from for what would be reasonable compensation under the circumstances. The record shows that at the time of the accident, plaintiff was 34 years old and suffered traumatic brain injury and multiple fractures of the vertebrae, as well as rib fractures, leg fractures, and a wrist fracture. Because plaintiff's spinal fractures placed him at risk for paralysis, he was kept on bed rest during his entire six-week hospital stay. During this period, medical personnel withheld pain medication so that they could perform a proper neurological assessment, which included deliberately and repeatedly inflicting pain to identify a change in plaintiff's level of consciousness.

Plaintiff's head injuries required surgery to remove the contused part of his brain and a portion of his skull to reduce pressure. Specifically, the surgeon removed a bone flap from plaintiff's skull and cut away a portion of the right temporal lobe, as well as other portions of the brain

In view of the devastating injuries and the deteriorating quality of life suffered by plaintiff, we find the sums of $1.5 million and $3.5 million, respectively, for past and future pain and suffering, to be a more appropriate award.

In view of testimony that plaintiff will would need around-the-clock care and rehabilitation services for the remainder of his life, the $16,721,684 award for future medical expenses over a projected 40-year period is not so disproportionate to what constitutes reasonable compensation as to warrant reduction. We have reviewed the remaining issues raised by defendant and find them unavailing.

I respectfully take issue with the proposition expounded by the majority in this case that an alien worker's lack of permanent resident status is immaterial to his recovery of the cost of future medical treatment. The majority's conclusion that the immigration status of plaintiff is irrelevant to the award of damages for future medical expenses represents a wholly unwarranted extension of the Court of Appeals' ruling in Balbuena v. IDR Realty LLC (6 NY3d 338 [2006] ).

By precluding evidence concerning where medical services are to be provided, the trial court improperly withheld material evidence from the jury, preventing a fair appraisal of the future cost of plaintiff's care.

Balbuena does not address, let alone limit, consideration of a plaintiff's immigration status in regard to any item of damages. Nor has the Court of Appeals suggested that disputes must be resolved without regard to a litigant's immigration status; when material to the issue at bar, the Court has not hesitated to consider it, in one instance finding it dispositive of rights afforded by New York law.

Despite plaintiff's testimony at his examination before trial that he intended to work only for a few years in the United States, save some $20,000 and then return to his native Ecuador, where his family resides, plaintiff's experts presented evidence of the cost of his future medical care based exclusively on the cost of treatment in the United States. Thus, the trial court permitted the jury to assess damages on the untoward assumption that plaintiff would remain in this country indefinitely and be subject to our prevailing cost of medical care, the most expensive in the world.

The trial court broadly forbade defendants from informing the jury that plaintiff "is not a resident alien here," stating without elaboration that it would be "too prejudicial and too speculative." Ignored by this analysis is the prejudice to the defense in being unable to dispel the obvious misimpression that plaintiff is a permanent resident.

The operative question before this Court is whether appellant should have been permitted to inform the jury of plaintiff's nationality and the limited duration of his intended stay. By adopting the trial court's reading of Balbuena, the majority sets an unfortunate precedent without support in either law or logic.

In sum, it is not prejudicial to require that a plaintiff present the jury with an accurate portrayal of the likely cost of his future medical treatment, wherever it is to be rendered. To the contrary, it is unfair to prevent a defendant from putting a plaintiff to his proof by precluding the defense from presenting facts material to the accurate assessment of damages.