Republic Waste Serv. v. Martinez

• Decision Date: 20 January 2011
• Docket Number: No. 01–09–00236–CV.,01–09–00236–CV.
• Citation: 335 S.W.3d 401
• Parties: REPUBLIC WASTE SERVICES, LTD. and Marco Castaneda, Appellants,v.Elida Griselda MARTINEZ, Individually and a/n/f of Amalia Griselda Gomez, a Minor, and on Behalf of the Estate of Oscar Alfredo Gomez, Deceased, and Carlos Gomez Portillo, Appellees.
• Court: Texas Court of Appeals

335 S.W.3d 401

REPUBLIC WASTE SERVICES, LTD. and Marco Castaneda, Appellants,

v.Elida Griselda MARTINEZ, Individually and a/n/f of Amalia Griselda Gomez, a Minor, and on Behalf of the Estate of Oscar Alfredo Gomez, Deceased, and Carlos Gomez Portillo, Appellees.

No. 01–09–00236–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Jan. 20, 2011.

Constance H. Pfeiffer, Beck, Redden & Secrest, L.L.P., Houston, for Appellants.Bernardino Agosto Jr., Abraham, Watkins, Nichols, Sorrels, Matthews & Friend, Clyde James Jackson III, Johnny N. Garza Jr., Houston, Vincent L. Marable, III, Paul Webb, P.C., Wharton, for Appellees.Panel consists of Justices KEYES, HIGLEY, and BLAND.

OPINION

LAURA CARTER HIGLEY, Justice.

This wrongful death and survival action arises from the on-the-job death of Oscar Alfredo Gomez. Following a jury trial, the trial court rendered judgment for $1,408,491 in favor of Gomez's common-law wife, Elida Griselda Martinez, and Gomez's father, Carlos Gomez Portillo, against appellants, Republic Waste Services, Ltd. and Marco Castaneda.

On appeal, appellants challenge the trial court's decision to exclude evidence concerning Gomez's illegal immigrant status. Appellants assert that the evidence was relevant to the issue of damages, specifically appellees' request to recover Gomez's future lost earnings. Because we conclude that, under the circumstances of this case, the trial court reasonably exercised its discretion to exclude the evidence, we affirm the judgment of the trial court.

Factual & Procedural Background

Oscar Alfredo Gomez and his common-law wife, Elida Griselda Martinez, immigrated to Houston from El Salvador. Gomez did not have a passport or a work visa. He used the social security number and “green card” of another individual to obtain a job with Republic Waste Services, Ltd., a garbage collection business. Republic hired Gomez to be a helper on one of its garbage trucks.

On the day of his death, Gomez was working on a garbage truck driven by Republic employee Marco Castaneda. As the garbage crew finished their last job, Castaneda backed the truck down a street and ran over Gomez. Gomez died of his injuries. Only then did Republic learn that Gomez had falsified immigration documents to gain employment with the company.

As Gomez's surviving spouse, Martinez filed a wrongful death suit alleging negligence against Castaneda and Republic, a non-subscriber to the Texas Worker's Compensation Act. Martinez filed suit individually, as representative of her husband's estate, and as next friend of their minor child, Amalia Griselda Gomez. Gomez's father, Carlos Gomez Portillo, also filed suit against Republic and Castaneda.

Before trial, Martinez and Portillo (hereinafter “appellees”) filed a motion in limine. Among the in limine requests, appellees asked the trial court to prohibit appellants from mentioning any evidence concerning Gomez's illegal immigrant status until the court ruled on the admissibility of the evidence outside the presence of the jury.

At the in limine hearing, appellees asserted that evidence regarding Gomez's illegal status was not relevant and was highly prejudicial. Appellants disagreed, asserting that evidence regarding Gomez's illegal status was relevant to the issue of Gomez's future lost income, which was an element of the pecuniary damages appellees sought to recover.

Appellants told the trial court that they planned to introduce evidence showing that federal immigration authorities had raided Republic's facilities two weeks after Gomez's death. That day, the authorities had arrested and removed a number of Republic employees, who were undocumented workers. Appellants told the court that a number of the workers never returned to Republic. Appellants argued that Gomez certainly would have been removed that day because he had fake employment documents.

Appellants also told the trial court that appellees planned to show that 21–year–old Gomez had earned $33,000 per year working for Republic. Appellants anticipated that appellees' evidence would show that, had he lived, Gomez would have worked another 35 to 40 years in the United States earning $33,000 per year. Appellants maintained that their evidence regarding Gomez's illegal status would demonstrate that Gomez was subject to immediate deportation, and that, in all likelihood he would have been deported following the federal raid at Republic. Appellants argued that such evidence was relevant to counter appellees' damages model for lost future income. In short, appellants indicated that the evidence was probative of whether Gomez's future income would be earned in the United States or in his native El Salvador, where he had earned only $1,000 per year. Appellants argued that the jury should be allowed to weigh and consider the evidence, specifically the likelihood that Gomez would have been deported, in determining lost future income damages.

Appellees responded that the immigration evidence was irrelevant and overly prejudicial. They asserted that the evidence did not prove that Gomez was likely to be deported or that Gomez would not have continued to work in the United States. Appellees argued that the immigration evidence was too speculative and conjectural to be of probative value when weighed against the risk of prejudice inherent in telling the jury that Gomez was an illegal immigrant. The trial court agreed with appellees noting that it was “gross speculation” whether Gomez would have been deported. After much debate and consideration, the trial court agreed with appellees and granted the in limine request regarding the immigration evidence.

At trial, Martinez testified that she and Gomez came to Houston to start a new life. Martinez testified that she was six months pregnant with her daughter, Amalia, when Gomez was killed. She told the jury that Gomez was very excited about the baby. Her testimony indicated that they were happy and hoped to stay in the United States.

Gomez's father also testified at trial. He told the jury that his son had worked with him in El Salvador on a dairy farm making $15 to $20 per week or approximately $1,000 per year. After moving to the United States, Gomez sent his father $100 per month.

Appellees' economist, Dr. Kenneth McCoin, estimated that, had he lived, Gomez would have earned $33,000 per year for the next 36 years working in the United States. Dr. McCoin calculated appellees' total loss of future support to be $1,196,621. On cross-examination, Dr. McCoin testified that had Gomez worked the next 36 years in El Salvador, earning $1,000 per year, Gomez's future economic losses would have been roughly $28,800.

Appellants made bills of exception detailing the evidence that they were prepared to offer regarding Gomez's illegal immigrant status. Outside the presence of the jury, appellants elicited testimony from Martinez, Dr. McCoin, and Scott Bradshaw, who is Republic's general manager.

Bradshaw testified during the bill of exception that Gomez had used fake documents to obtain employment with Republic. The company did not discover the deception until after Gomez's death. In her bill-of-exception testimony, Martinez confirmed that Gomez had used another individual's social security card and green card to obtain employment with Republic.

As part of the bill of exception, Bradshaw also testified that two weeks after Gomez's death, officials from the United States Immigration and Customs Enforcement (ICE) held a surprise raid at Republic's Houston facility. The raid occurred at the beginning of a shift. According to Bradshaw, “They detained everyone at the building and those [sic] as they entered the property.” He continued, “They looked at [the employees'] paperwork; and those that had a mismatch, they detained and hauled off the property.”

Bradshaw testified that 50 to 55 of Republic's employees were detained and taken from the facility during the ICE raid. Approximately 30 of those detained never returned to Republic. At the time of trial, nearly two years later, there was still a van parked in Republic's parking lot that belonged to one of the detained workers.

Appellees' expert economist, Dr. McCoin, testified in the bill of exception that he had not factored in Gomez's illegal immigrant status when calculating future lost income. Dr. McCoin agreed that Gomez's “work-life statistic” would be affected by his illegal immigrant status because there was an increased risk that he would be “ejected from the workforce.” Dr. McCoin stated that he did not know what the risk of deportation was for Gomez. Dr. McCoin then testified that there are, however, “two sides to it.”

Dr. McCoin explained that an illegal immigrant has a strong motivation to remain in the United States because he often has few alternatives in his native country. Dr. McCoin testified that illegal immigrants are willing to work longer hours for less pay than legal workers. These factors operate to offset the effect of the risk of deportation, although he did not know how much.

Appellants' counsel asked, “If [Gomez] is deported, it certainly affects the assumption that you made that he would have continued to work at the 33,000–some–odd–dollar level that you assumed, doesn't it?” Dr. McCoin responded, “Well, no. Because, again, he comes back across [the border]. They can deport him. They can deport him a jillion times, and he comes right back over.” Dr. McCoin continued, “That's been known to happen and does happen all the time. But we're not tethering him to this company, but we are tethering him to that wage.”

When appellants' counsel asked whether Dr. McCoin's assumption that Gomez would earn $33,000 for 37 years factored in the chance that Gomez might be deported, Dr. McCoin answered affirmatively. Dr. McCoin explained that, although Gomez's chance of deportation reduced his “work probability,” the reduced work probability was offset by Gomez's strong desire to work. Dr. McCoin explained that...