Is Immigration Status Discoverable In A Claim For Lost Wages?

As mentioned in a Massachusetts civil case published in the July 2017 issue of Legal News, discovery (the evidence and information gathering stage of a civil case) is broad and permits a party to obtain information from the opposing party through a variety of means regarding any matter, not privileged, which is relevant to the subject matter of the lawsuit. One component of many personal injury cases is the amount of lost wages or loss of earning capacity that resulted from the accident. Whereas lost wages are routinely documented through employment records recording the time absent from work as a result of the accident and rate of pay, impaired earning capacity is based on an injured plaintiff’s lessened ability to work as a result of a defendant’s tortious conduct.

Immigration Status Not Relevant in Personal Injury Cases

In two recent cases involving workplace injuries in which the plaintiff claimed lost wages or earning capacity, the defense attorneys requested through the discovery process that the plaintiffs disclose their immigration status in order to determine their ability to legally work in the United States. In each case, the plaintiff refused to disclose the information and the defendants filed motions to compel disclosure. In both cases defense counsel argued that whether the plaintiff could legally work in the United States was relevant on the issue of lost wages or earning capacity to calculate the amount of wages he could earn. In denying the defendants’ motion to compel, two separate Superior Court judges determined that the information sought was not relevant to the determination of lost earning capacity. One judge concluded that “an employee’s impaired earning capacity is based on the injured employee’s lessened ability to work, and that lessened ability to work is not always based on what job the injured employee had.” The other judge found that the focus of the inquiry with diminished earning capacity is not the plaintiff’s alien status, or where he will be working in the future, but the effect of the injury on his capacity to work.

The Factors Behind the Ruling

Both judges also highlighted public policy considerations that militated against disclosure, stating that denying discovery on immigration status provides much needed protection for some of the most vulnerable members of our society – undocumented workers. “If employers know that they will be potentially less financially responsible for a workplace injury as long as the injured party is an illegal immigrant, they will be more inclined to hire illegal immigrants for dangerous positions. Employers will also have less incentive to provide adequate workplace safety measures for jobs they intend to fill with illegal immigrants.” Finally, each judge made an independent determination that the risk of undue prejudice to the plaintiff far outweighed the potential probative value of the disclosure.


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If you or a loved one were injured because of someone’s negligence, contact Attorney Allison now for a free consultation by calling 978-740-9433 or filling out our free consultation form. We look forward to talking to you about your claim.