Velasquez v. Centrome, Inc. , 183 Cal. Rptr. 3d 150 ( 2015 )

Filed 1/30/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
WILFREDO VELASQUEZ, B247080
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC370319)
v.
CENTROME, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Anthony J. Mohr, Judge. Reversed and remanded.
Metzger Law Group, Raphael Metzger, Kimberly A. Miller, Kathryn A. Saldana,
and Kenneth A. Holdren; Simon Greenstone Panatier Bartlett and Brian P. Barrow for
Plaintiff and Appellant.
Horvitz & Levy, David M. Axelrad and Bradley S. Pauley; Lewis, Brisbois,
Bisgaard & Smith, Peter L. Garchie and Ruben Tarango; Sedgwick, Craig S. Barnes and
Robert Kum for Defendant and Respondent.
The Hastings Appellate Project, Gary A. Watt, Stephen Tollafield and Tiffany J.
Gates; People for the American Way and Deborah Liu; ACLU Foundation of Southern
California and Jennifer Pasquarella as Amici Curiae on behalf of Plaintiff and Appellant.
National Immigration Law Center, Linton Joaquin, Karen C. Tumlin and Joshua
Stehlik; California Rural Legal Assistance Foundation and Della Barnett as Amici Curiae
on behalf of Plaintiff and Appellant.
The Consumer Attorneys of California, Arbogast Law and David M. Arbogast as
Amicus Curiae on behalf of Plaintiff and Appellant.
The Amicus Project at Southwestern Law School, Ryan Abott and Matthew
Graham as Amicus Curiae on behalf of Plaintiff and Appellant.
____________________________
Plaintiff and appellant Wilfredo Velasquez appeals from a judgment after jury trial
of his product-related personal injury action. Velasquez alleged his lung disease was
caused by workplace exposure to a chemical compound, diacetyl, that was distributed by
defendant and respondent Centrome, Inc. dba Advanced Biotech (Advanced). The trial
court entered judgment on the jury’s special verdict which included findings, as to
multiple causes of action, that Advanced’s acts were not a substantial factor in causing
harm to Velasquez.
After finding the issue relevant to Velasquez’s ability to receive a lung transplant,
the trial judge advised the prospective jurors during jury selection that Velasquez is an
undocumented immigrant. Velasquez claims the jurors who decided his case were
incapable of being fair given their knowledge of his immigration status. We find the trial
court erred when it disclosed Velasquez’s undocumented immigrant status to the venire
of prospective jurors, and in denying a motion for mistrial. We find the denial of
Velasquez’s motion for mistrial requires that the judgment be reversed.
FACTS
Background
In the summer of 2003, Velasquez started working as a temporary employee at
Gold Coast, a company that made food flavorings. At some point in 2004, he became a
permanent employee. While working at Gold Coast, Velasquez moved diacetyl, in both
closed and open bags and containers, throughout the company’s facility. He breathed
2
ambient diacetyl particles in the air while using a sprayer to mix diacetyl into batches of
liquid and dry flavorings, and while hand pouring the compound into mixes.1
During the time that Velasquez worked at Gold Coast, Advanced supplied roughly
80 percent of the diacetyl that Gold Coast used in its facility. Advanced did not
manufacture the diacetyl. Advanced purchased the compound from suppliers then
distributed it to customers like Gold Coast. Advanced attached material safety data
sheets (MSDS’s) to the containers of diacetyl it distributed to its customers.
The MSDS’s warned that diacetyl was “harmful by inhalation,” but did not include
specific warnings about the risks of any particular diseases from exposure to the
compound. At trial, it was undisputed that Advanced’s warnings were consistent with
flavorings industry practices at the time that Velasquez was working at Gold Coast.
The California Division of Occupational Safety and Health did not issue exposure limits
for diacetyl until 2010, more than four years after Velasquez stopped working at Gold
Coast. There were no federal regulations governing exposure limits for diacetyl while
Velasquez worked at Gold Coast. Even by the time of trial of Velasquez’s current case in
2012, the Federal Drug Administration continued to classify diacetyl as “Generally
Regarded as Safe.”
During a mixing incident in September 2005, Velasquez inhaled fumes from a
concentration of compounds that included acetaldehyde, but not diacetyl. Following the
incident, Velasquez experienced trouble breathing, and first sought medical attention for
breathing issues. A doctor at a local hospital gave Velasquez an inhalator, along with a
paper indicating he had a respiratory infection. When his breathing difficulties did not
improve, Velasquez returned to the hospital two more times in the next two months.
In November 2005, Velasquez’s supervisor took him to the “company clinic” at Gold
Coast’s facility, where a “company doctor” told him he could not continue working for
1
Diacetyl imparts a buttery taste.
3
the company in his condition. Velasquez’s last day of employment at Gold Coast was
November 16, 2005.
In late November 2005, Velasquez went to Mike Mirahmadi, M.D., for treatment.
Velasquez complained of shortness of breath. Dr. Mirahmadi noted Velasquez was using
an inhaler intended for asthma, and that Velasquez attributed his breathing problems to
work. Dr. Mirahmadi instructed Velasquez to continue using the inhaler and to stop
working for 30 days to see if absence from his workplace helped his symptoms.
Dr. Mirahmadi referred Velasquez to a lung specialist. It is not clear from the parties’
briefs or the record on appeal whether Velasquez followed through on this medical plan.
From January to August 2006, Randall Caldron, M.D., treated Velasquez. Dr. Caldron
diagnosed Velasquez as suffering from a reactive airway disease or allergic rhinitis.
Dr. Caldron prescribed medications commonly used for treating those conditions.
According to his complaint, Velasquez was first diagnosed with bronchiolitis obliterans,
a rare form of lung disease which is usually progressive and fatal, in December 2006.
The circumstances of this first diagnosis are not readily apparent from the parties’ briefs
on appeal, or their references to the record.2
The Lawsuit and Trial
In April 2007, Velasquez filed a complaint for personal injuries against several
manufacturers and distributors of chemical compounds used to make food flavorings,
including Advanced. In June 2011, Velasquez filed his operative first amended
complaint. Velasquez’s first amended complaint alleged various chemicals and chemical
compounds to which he was exposed while working at Gold Coast caused his lung
disease. The following causes of action, listed respectively, were eventually tried to a
jury and submitted for its consideration by way of a special verdict form: negligence
(breach of duty, including duty to warn of risks); negligence per se (negligence based on
violations of regulations governing mandatory hazardous materials warnings); strict
2
The trial record does indicate that bronchiolitis obliterans is best diagnosed from
pulmonary function tests and CT scans.
4
products liability –– design defect (the consumer expectation test); strict products liability
–– design defect (the risk-benefit test); and strict products liability –– failure to warn of
risk that is unknown to user.
1. The Motions in Limine
In the months leading up to trial, Velasquez filed a number of motions in limine,
including motion in limine No. 46 to preclude Advanced (and, at the time, a number of
other defendants) from presenting any evidence or making any comment about his
citizenship or immigration status, or showing that he had used falsified information or
documents when applying for employment. Velasquez argued that evidence on such
matters was inadmissible because (1) it was irrelevant as he was not claiming loss of
earnings or earnings capacity; (2) it was more prejudicial than probative on any material
issue, and thus excludable under Evidence Code section 352; and (3) it would constitute
evidence of “bad acts” tending to prove character, and thus was inadmissible to challenge
credibility under Evidence Code section 787.
In its opposition to Velasquez’s motion in limine No. 46, Advanced argued that
evidence of Velasquez’s immigration status was admissible “for the limited purpose of
allowing expert testimony . . . on . . . his ability to participate in a lung transplant,” which
his complaint alleged he would need in the future. Advanced offered to stipulate to
granting Velasquez’s motion in limine No. 46, provided he dropped his claim that he
would need a lung transplant in the future.
In addition to the issues raised by motion in limine No. 46, Advanced filed motion
in limine No. 80 to preclude Velasquez from presenting expert evidence related to his
alleged need for a future lung transplant. Advanced argued Velasquez’s claimed need for
a lung transplant was speculative. In support of its argument, Advanced pointed to one of
Velasquez’s own designated experts, David Ross, M.D., who had recently issued a report
indicating Velasquez’s medical condition did not require an immediate lung transplant,
and concluding only that he would need one “in the future.” Advanced also pointed to
another of Velasquez’s designated experts, David Egilman, M.D., who had recently
5
indicated Velasquez “may not be eligible for a lung transplant.” Advanced requested an
order excluding evidence regarding the need for a lung transplant, and the associated
costs of such a procedure. Alternatively, Advanced requested that the trial court conduct
a hearing under Evidence Code section 402 regarding the factual foundation for Dr.
Ross’s anticipated opinion at trial that Velasquez would need a lung transplant at some
point in the future.
At a pretrial status conference hearing, the trial court deferred a ruling on either
motion in limine until after the experts had been deposed. In stating its decision, the
court made the following comments: “If it weren’t for the need of the lung transplant,
I would just exclude all evidence about his alienage status and that would be the end of it.
[¶] I think it’s clear under Evidence Code [section] 352 it would be unduly prejudicial.
But I really think I ought to wait and see what the experts have to say about this issue
before I make a ruling.”
2. Voir Dire
After several weeks of hearings on motions and pretrial matters, the case was
called for trial and the lawyers announced they were ready. The prospective jurors, who
had previously filled out a questionnaire, were then called into the courtroom. The trial
court started voir dire with broad questions to the prospective jurors en bloc on subjects
such as whether they could keep an open mind, whether they would follow the court’s
instructions, and the concept of the burden of proof.
At the start of the afternoon session, before the prospective jurors returned, the
trial court and the lawyers took up the issue of the possible trial testimony of Velasquez’s
“transplant expert,” Dr. Ross, a physician at UCLA Medical Center. Dr. Ross had
recently seen Velasquez (either as a treating physician or as a plaintiff’s expert) regarding
a possible lung transplant. Among the matters discussed regarding Dr. Ross’s anticipated
testimony were whether he could and would testify to a degree of medical certainty or
probability that Velasquez needed a lung transplant, and Dr. Ross’s insights on whether
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Velasquez would be accepted for a lung transplant in light of his undocumented status.
During the course of these extended discussions, the following exchange transpired:
“The Court: But we’ve got several things going against the plaintiff
[with regard to the showing that he needs a transplant]. First and foremost,
he really hasn’t been totally evaluated through UCLA. We really don’t
have a complete workup here. . . . I don’t want to call this an afterthought,
but it really does appear to be that, the whole transplant issue. It came from
an attorney . . . . I’m talking about the person over on the workers’ comp
side. [¶] They sent [Velasquez] to UCLA. They really don’t have time to
work him up. Ross thinks he’s the treater. Ross writes a report that says
[Velasquez] doesn’t need a lung transplant. You know, who knows about
the future. Then apparently, Ross says, ‘I didn’t know this was a sham
consult and I’m not really going to be an expert witness’ – Words to that
effect. And he now begins to move more towards a degree of certainty or
medical probability. He’ll need it. But what leaks out in his testimony is if
[Velasquez is] deemed an acceptable candidate. And what also leaks out is
I don’t have any certainty as to when [the need for a transplant] may or may
not occur. I mean, at the end of the day, [the cases say] . . . if there’s
enough for the jury to believe here like 10, 20 percent, we let it go to the
jury. And I saw [plaintiff’s] cases. And I thought long and hard about it.
But I’m not sure there’s really enough here to do it.”
“Mr. Metzger [plaintiff’s counsel]: Well, your Honor. We could
have a hearing of Dr. Ross. Put him on the stand and --- that’s what we do.
“The Court: Believe me, Mr. Metzger, I’ve thought about that. But
let me tell you what the ground rules are if we do that. And that is, I’m not
stopping voir dire. We go forward --- I don’t know when Ross is available
--- and you take your chances. If you want to ask [the prospective jurors]
about lung transplants in voir dire, you can ask [them]. If you want to ask
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about immigration status, you can ask [them]. But I’m telling you now
that, you know, I don’t want to stop the trial for a week or two while we try
to figure out when Ross can come in for a 402.
“If I deny the in limine motion –– and I must tell you I am leaning
slightly in that direction. But if I deny it, that’s without prejudice to
hearing Ross on a 402, and unless he can get better [in his proposed
testimony], you know, I probably would end up granting this.
“Mr. Metzger: Well, your Honor, let me make a suggestion, then.
If that’s where we’re going, then okay. In that case there should be no
mention of alienage status because your Honor may ultimately exclude
Dr. Ross, in which case it doesn’t come in.
“The Court: That’s fine. You know, the only reason I bring that up
is, you know, you could end up having that bomb explode in the courtroom
once the transplant evidence comes out. I just want to give you that fair
warning. [¶] So if you thought to yourself I really want to, you know,
inoculate them against that prejudice now, I would say absolutely. Go right
ahead and do it. But if you want to keep it silent, then, you know, on your
say-so, I will order that nobody mention alienage status.
“Mr. Metzger: Right. . . . I will need to consult on this; so I’m not
prepared to say today.
“The Court: Okay. You certainly don’t need to get there today.
“Mr. Metzger: The difficulty is that either way, you know, it’s a
Hobson’s Choice because . . . the evidence of alienage is so
prejudicial. . . . This raises major, major issues about discrimination in
medicine, discrimination in the courts. It’s a real hornet’s nest.
“The Court: Mr. Metzger, I hear you. But at the same time, you
know, I don’t even have to go there. I can just simply say to you that there
is evidence here that I’ve read that . . . in terms of being eligible for a lung
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transplant, they have to know you are going to be around. And if you are
an illegal alien, you may not be around. You may get deported. That’s the
cold hard fact of the matter.
“Mr. Metzger: The fact is [Velasquez] can afford a lung transplant
in South America or Europe or wherever. I mean, based upon the
settlement this morning, he’ll be able to pay for the transplant procedure.
So . . . [i]t is a red herring this whole deportation issue. Because he’s an
undocumented worker he may be deported, therefore, he won’t get a lung
transplant. Absolutely untrue. He’ll get it. He has the money for it. So
that’s really a red herring, and it’s absurd.
“Mr. Kum [counsel for Advanced]: Your Honor, we think the
appropriate ruling is that you tentatively grant the motion in limine.
If plaintiff’s counsel wants to try to put Dr. Ross on the stand, then I agree
there should be a 402 hearing in the morning before he takes the stand.
But I think the tentative should be to grant because ----
“The Court: Well, I want to let Mr. Metzger make the decision
about whether to voir dire the jury on him being an illegal alien. Okay?
If you want to voir dire the jury on that point, fine, you know, you can do
so. [¶] If you don’t want to voir dire the jury on that point, fine. And if
you don’t want to voir dire the jury on that point, then probably the best
thing to do –– well, let me just say it’s your call. It’s your call. And then I
would just wait for the 402 and make the final decision.
“Mr. Metzger: My tentative thinking is I would not voir dire the
jury regarding that because it’s so horridly prejudicial.
“The Court: And you sure don’t have to make that decision today.
We’ve got about 45 minutes. There’s plenty of things to ask them about.”
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The trial court then tentatively granted Advanced’s motion in limine No. 80 to
exclude evidence of Velasquez’s need for a transplant. At the same time, the court
ordered all of the lawyers “not to refer at all to Mr. Velasquez’s immigration status, ask
no questions about it, refer to nothing about it.” The court indicated its ruling would be
reconsidered at an Evidence Code section 402 examination of Dr. Ross at a time of the
lawyers’ choosing, based on Dr. Ross’s availability. The court then continued:
“If Mr. Metzger wishes to voir dire the jury on alienage status, he
may do so. And that would, of course, void my order immediately. He will
just have to let me know. But at this point, with the understanding Mr.
Metzger does not want that to come in, it will not. [¶] The court in limine
will bar all references to Mr. Velasquez’s immigration status. And as I
said, I look forward to the 402 because it could well be that this
area . . . would be something where the item of damages would be
permissible under the law. It’s exceptionally close. But for now, in an
abundance of caution, I’m going to keep it out.”
A few days later, the court took a break from voir dire and conducted an Evidence
Code section 402 (hereafter section 402) hearing on the possible testimony of Dr. Ross.
Dr. Ross testified that Velasquez suffered from constrictive bronchiolitis obliterans, and
that it was likely he would require a lung transplant. Dr. Ross explained that
bronchiolitis obliterans is an unpredictable condition and, five years from diagnosis, only
about 28 to 30 percent of patients survive without a transplant. Dr. Ross testified that his
team at UCLA had never rejected a lung transplant candidate because of national origin
or because the patient was an undocumented worker. He further indicated that the
policies of the United Network for Organ Sharing’s (hereafter UNOS)3 allow up to five
3
According to its website, UNOS is a private, non-profit organization that manages
the country’s organ transplant system under contract with the federal government.
(www.unos.org.)
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percent of the transplants performed in a year to be conducted on foreign nationals.
Following cross-examination by trial counsel for two defendants, the trial court asked
some questions of Dr. Ross on its own in the following exchange:
“The Court: Let me ask you this question. Apparently – and I don’t
know this for a fact, but apparently Mr. Velasquez is not in this country
legally. Now, when your team sits down to make a decision as to whether
he needs a lung transplant, is that going to have any impact at all in the
decision?
“[Dr. Ross]: If he’s no longer in this country?
“The Court: If he is illegally in this country.
“[Dr. Ross]: Illegally?
“The Court: Subject to deportation, regardless of the statistics or the
chances of deportation, will the fact that he is here illegally, if, in fact,
that’s true, have any impact at all on your group’s decision at UCLA to
transplant him?
“[Dr. Ross] : Well, the way that we make the decision about
transplants is that it’s a multidisciplinary meeting where we have the
transplant pulmonologist such as myself, surgeons, social workers,
psychiatry, the finance department, and other members of transplant
administration. We make the decision first whether from a medical
standpoint if the patient needs a transplant and meets the criteria for
transplant.
“The Court: Medically.
“[Dr. Ross]: And then we ascertain whether they have the financial
support for a transplant.
“The Court: Let’s assume that’s all a positive. Let’s assume he
medically needs it and he can pay for it. Now what happens?
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“[Dr. Ross]: And then we would have to look into the issue
about . . . him being here illegally, about whether that would be acceptable
for a transplant with UNOS’s policy or not, and whether we could ensure
that he would have follow-up in a transplant program after the transplant.
So this is something that would have to be discussed in the setting of the
meeting.
“The Court: What I’m hearing is it could have an impact. I don’t
want to put words in your mouth, but that’s what I’m hearing.
“[Dr. Ross] It most definitely would have to be discussed, and it
could have an impact.” (Emphasis added.)
At the conclusion of the section 402 hearing, the trial court ruled: “[T]here is no
question but that Mr. Velasquez’s immigration status is going to have a role in this.”
When counsel for Velasquez attempted to offer an argument, the trial court responded:
“Mr. Metzger, I’ve heard enough. I heard what [Dr. Ross] said. It plays a role. His
immigration status will be admitted in this trial. I’m going to deny your in limine motion
to keep it out. That’s my ruling.” In making its ruling, the court acknowledged that
evidence of immigration status was “highly, highly prejudicial,” but that its probative
value in Velasquez’s case was “definitely more than a little.” The trial court denied
Velasquez’s request to certify the issue for an immediate appeal and to stay the case,
noting the court and the parties were in the “middle of jury selection.”4
Upon objection from Velasquez’s counsel, the trial court started the next
morning’s session by revisiting its ruling of the previous day that evidence about
Velasquez’s undocumented immigration status would be admissible at trial. The court
indicated that it was not inclined to change its view, noting Dr. Ross had “testified very
4
Velasquez filed a petition for writ of mandate in our court challenging the trial
court’s ruling on the admissibility of evidence of alienage and residency status.
(Case No. B244365.) We summarily denied the writ petition on October 5, 2012.
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clearly” that Velasquez’s immigration status would “play a role” when his doctors
decided whether he would receive a lung transplant. The court ruled: “[T]he evidence is
probative and the tendency to unduly prejudice does not substantially outweigh the
probative value.” At the same time, the court cautioned the defense that “[t]he fact that
he’s illegally here does not impact his credibility in my mind. And I don’t want it used
for that purpose . . . . The only reason the jury is to consider this has to do with his
eligibility for a lung transplant. And if anybody wants to submit a special instruction to
me, I will instruct the jury that this is not to be considered for his credibility.”
Velasquez’s counsel orally moved for a mistrial, and the trial court denied the
motion.5 At this point, Velasquez’s counsel advised the court that, given its ruling about
Velasquez’s immigration status, counsel felt he had “no choice” but to bring up the issue
with the prospective jurors. A discussion then ensued between the court and all of the
lawyers about the best way to handle the situation, as Velasquez’s counsel had already
asked a significant number of questions on voir dire without addressing the
undocumented immigrant issue. When Velasquez’s counsel asked the court to inquire
whether the defense lawyers actually intended to offer evidence on Velasquez’s
immigration status, counsel for the remaining defendants at that time, including counsel
for Advanced, declined to stipulate that they would not raise the issue.
Eventually, it was agreed that the court would advise the jurors about the issue.
As the court summarized the situation: “I’ll basically just say that . . . based on some
rulings I’ve made, you are going to hear some information regarding his alienage
status. . . . [¶] . . . I want to be the one to raise it. And I may well take on some blame
for not letting the topic out earlier. I want to be the lightning rod to the extent the jury
feels anything was hidden from them.”
5
Velasquez’s counsel did not state grounds for the motion for a mistrial, and the
court denied the motion without comment. In context, the motion plainly rested on the
trial court’s ruling that evidence of Velasquez’s immigration status would be admissible
at trial.
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When the prospective jurors returned to the courtroom, the trial court made the
following statement:
“I want to give you a brief update on the matter before we proceed
because it will impact the questioning that occurs. As you know, we all
meet sometimes outside of your presence and make certain decisions with
respect to the case. And as I told you in the orientation, you know, while
you are the judges of the facts, I’m the person who gets to decide what you
are going to hear and what you’re not going to hear.
“And yesterday and this morning counsel and I had a discussion.
And I want to bring up a subject where because we’ve now determined or
I’ve determined that this is something you are going to hear. And that is
that Mr. Velasquez is not legally in the United States. Okay?
“Now, I want to tell you that under our laws, citizens and
noncitizens alike have access to our courts, and they have certain rights not
only in the civil courts as well as in the criminal courts. The fact that a
person is not here legally doesn’t mean that, you know, he can be arrested
and put in jail without a trial. He or she has all the constitutional rights that
a citizen does. Same on the civil side. If you were driving your car and
you slammed into somebody who was not authorized to be in the United
States, you could still be liable for a lot of money if you hurt that person.
Okay?
“The fact that that person isn’t here legally doesn’t mean anything.
And similarly in this case, Mr. Velasquez has a right to bring this lawsuit
even though he may not be a citizen, even though he may be not here
legally. Now, my first question to you is this: Having told you this –– and
I’m asking the whole group –– is there anybody here who just says, ‘Oh,
my Lord. You know, the light goes on, I can’t be fair. I’m going to rule
against him’? Does anybody feel that way? I see no hands. . . .
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“[¶] . . . [¶]
“Okay. . . . Now, let me turn it around. Is there anybody who feels
– obviously the plight of people in various countries is – can be regrettable.
And many of these people want to come to the United States to work and
provide for their families even though they may not be able to get a visa or
get permission to come here.
“Does anybody feel that because Mr. Velasquez took the time, had
the courage, whatever, to come here, you are going to rule for him? Now
that you know this he wins the case? Does anybody feel that way? [¶] I
see no hands.”
The trial court then instructed the prospective jurors as follows:
“[Y]ou are not to consider his immigration status as bearing on his
credibility as to whether what you hear from him is truthful or not truthful.
I don’t want you to consider his immigration status for that purpose. It’s
only to be considered with respect to his eligibility for a certain type of
medical procedure.”
At the end of its statements and instructions to the prospective jurors on the issue
of Velasquez’s immigration status, the trial court asked again about their attitude
regarding the issue as follows: “So will you all agree that you will not consider his status
as a citizen, a noncitizen, authorized, or unauthorized –– you will not consider that as
bearing on his . . . truth telling? Is that a promise?” The prospective jurors, answering in
unison, responded “yes.” At this point, Velasquez’s counsel resumed his individual voir
dire of the jurors.
Near the end of the day, all counsel accepted a panel of 12 jurors. The next day,
voir dire of a group of 18 prospective alternate jurors began. At the beginning of the voir
dire, the trial court collectively asked the 18 prospective alternate jurors whether they
could be fair in the case. Six raised their hands and requested sidebar discussions with
15
the trial court. Of those six, four expressed concerns directly related to Velasquez’s
immigration status. The court excused those four prospective alternates, and noted the
difference in reactions to immigration status from the original set of prospective jurors:
“Not one juror, and now we get all these other ones.”
During further voir dire, four other prospective alternates openly expressed views
regarding Velasquez’s immigration status. One favored Velasquez; another stated that he
did “have an issue with him being here illegal and suing,” and explained that his “beliefs
are part of who I am because of my experiences. I’m sure they would play some factor in
a decision. Maybe not number one, but those feelings would, quite honestly, factor in
somewhere.” Another admitted he could not be fair, and stated, “If he weren’t here
illegally, maybe he wouldn’t have gotten injured.” Another stated the blame for
Velasquez’s injury was with the employer, and she was “concerned that . . . the employer
for Mr. Velasquez hired him to begin with.”
At the end of the day, Velasquez’s counsel expressed concern to the court about
the prospective alternate juror who made a comment about Velasquez’s employer having
illegally hired him. Velasquez’s counsel requested permission to voir dire all of the
prospective jurors (including going back to the 12 who were already sworn) on their
attitudes toward employers who illegally hire undocumented immigrants. The following
exchange ensued:
“Mr. Metzger: . . . I need to question these people regarding their individual
[views on employers]. I haven’t done that. [¶] All that I did –– if you
recall, all that I did was [ask questions about] organ transplantation and
alienage. That is all I’ve covered. So I do have ---
“The Court: Can you do it in an hour? Can you get this taken care of in an
hour?
“Mr. Metzger: I would hope so. We have had a lot of surprises from this
bunch.
“The Court: Unlike the first 12, this is a very surprising group.
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“Mr. Metzger: Your Honor, I do want to get something on the record. [¶] I
am very concerned because I find it extremely odd that the first 18 had no
problems with the alienage and this group had --- there were several who
had lots of problems.
“The Court: Four or five or six.
“Mr. Metzger: I’m concerned with what has happened here is the initial 18,
we have gone through voir dire, a lot of voir dire without that being raised as
an issue. They already felt vested, and biases did not come out. [¶] And
this group didn’t. They weren’t vested because they hadn’t been questioned
yet. Now we have all these biases coming out. I’m very concerned. [¶] I
am going to make a motion for a mistrial.
“The Court: Based on that? . . . I know you made one yesterday.
“Mr. Metzger: I will renew it again. You may hear it from me --- I don’t
think the way this whole thing has happened, has unfolded, is appropriate. I
think it creates extreme prejudice and bias. I’m moving for a mistrial.
“The Court: Okay. Anything from the defense?
“[¶] . . . [¶]
“Mr. Garchie [counsel for Advanced]: Your Honor, I think the record will
speak for itself that this is a volatile issue, immigration, alienage. Some
people have strong views. [¶] I think that the panel that we have now, the
first 12, I think, were thoroughly vetted. I think they were asked many
questions concerning alienage, and my impression is that they were
forthright and honest and gave appropriate views on it. [¶] I don’t see any
type of subliminal type of discrimination that Mr. Metzger does, and I don’t
believe it would be appropriate to grant a mistrial under the circumstances.
“The Court: Go ahead.
“Mr. Cray [counsel for another defendant]: Your Honor, I think you’ve
been more than fair on this particular issue of alienage. You allowed Mr.
17
Metzger to go into it. With every single juror or prospective juror, he has
gone into it. If anyone was close, if anyone had a thought that it was going
to weigh on their decisions, your Honor has allowed them for cause, and I
think you’ve been more than fair. [¶] Counsel is now speculating that
somehow someone kept something from him and didn’t share their feelings.
I think the first 18 people shared their feelings a lot with us, and we had
three or four days with them for them to share their feelings. I don’t think
they had a lot of secrets.
“The Court: You know, I don’t blame Mr. Metzger. You know, it’s a major
issue. [¶] There is no question -- you know, you’ve got that case --- I forget
the name of it --- from the Fourth District with Judge Brooks. Although, as I
said before and I’ll say again, the facts are very different, very sharply
different. [¶] The short answer, Mr. Metzger, is I’m denying your motion
for a mistrial.”
Voir dire of the prospective alternate jurors resumed, and continued into the
afternoon session. Early in the afternoon, counsel for Velasquez and counsel for
Advanced (which by this time was the only remaining defendant) accepted six alternate
jurors. The trial court thereafter gave preliminary jury instructions before ending the
court day. The court instructed the jurors with standard civil jury instructions as follows:
“You must not be biased in favor or against any witness because of
his or her disability, gender, race, religion, ethnicity, sexual orientation,
age, national origin, or socio-economic status.” Further: “You must not let
bias, prejudice, or public opinion influence your decision. Your verdict
must be based solely on the evidence presented.”
In accord with the wishes of Velasquez’s counsel not to draw attention to the
issue, the trial court did not give a specific cautionary instruction on Velasquez’s status
as an undocumented immigrant.
18
3. Trial and the Jury’s Special Verdict
Trial was dominated by expert testimony. Nearly a dozen medical doctors
testified on the subject of Velasquez’s medical history, his current medical condition, his
prognosis, his medical treatment to date, and his need for future medical treatment,
including his need for a lung transplant.
David Egilman, M.D., testified on Velasquez’s behalf on the issue of whether
diacetyl caused Velasquez’s bronchiolitis obliterans. Brent Findley, Ph.D., testified on
behalf of Advanced on the issue of causation, focusing more broadly on the state of
ongoing scientific research regarding whether diacetyl causes bronchiolitis obliterans.
The testimony of these causation experts is discussed in more detail below.
After a number of witnesses had testified, Velasquez filed a written motion for
mistrial. The motion was supported by a declaration from Mark Nicas, Ph.D., an adjunct
professor of environmental health sciences at the University of California, Berkeley, and
the Director of the Industrial Hygiene Graduate Program at the university’s School of
Public Health. Dr. Nicas’s declaration addressed the subject of whether there was a
“statistically significant difference of expressed alienage bias” as between the group of 18
prospective jurors from whom the 12 jurors ultimately empanelled had been selected (so-
called Group A), and the group of 18 prospective jurors who were voir dired to be
alternate jurors (Group B). Dr. Nicas stated there was a numerical difference in
responses between the two groups and that it was “unlikely,” based upon an application
of a generally accepted statistical analysis procedure that the difference was “due to
chance alone.” Dr. Nicas expressly indicated he could not identify a cause for his
statistical conclusions; he only concluded there was a significant difference in responses
between the groups, and, based on the statistical analysis, it was “highly unlikely to be
the result of chance alone.” Outside of the presence of the jury, the trial court denied
Velasquez’s motion for mistrial.
19
Dr. Ross testified for Velasquez regarding his need for a transplant. Dr. Ross
testified that Velasquez did not currently need a lung transplant, but would need a
transplant in the future because there were few other treatment options for bronchiolitis
obliterans. According to Dr. Ross, he was “very confident that [Velasquez] will need a
transplant within the next five years.” Dr. Ross also testified regarding the myriad of
medical, psychological, cost, support and other factors which are considered in the
decision as to whether a particular patient will receive a lung transplant, or, more
generally, “the topic of lung transplant candidacy.” Dr. Ross explained that Velasquez
had no medical or psychiatric factors which would disqualify him from receiving a lung
transplant, and that he had sufficient family and social support structures for a possible
lung transplant. Dr. Ross further explained that the lung transplant program at UCLA
had never rejected a lung transplant patient based on his or her race, national origin, or
residency or naturalization status, and that “we’re prohibited from considering that.”
Dr. Ross explained that UNOS had recently issued “new” policies which provided that it
would not consider residency and immigration status when making decisions on
transplant approvals. The new UNOS policies were put in place in September 2012.
Velasquez made yet another motion for mistrial, which was denied. Advanced
filed a written motion for nonsuit as to Velasquez’s claim for punitive damages, and his
causes of action for strict liability on design defect and failure to warn theories, and for
common law negligence. On the common law negligence issue, Advanced argued
Velasquez had not presented any evidence establishing the standard of care in the food
flavoring industry at the time Velasquez was exposed to diacetyl.
The trial court subsequently conducted a section 402 hearing on the potential trial
testimony of defense expert Gordon Yung, M.D., regarding Velasquez’s need for a lung
transplant. Dr. Yung opined that Velasquez would not need a transplant. Dr. Yung was
also a representative from one of the regional administrative bodies of UNOS, and a
member of UNOS’s lung transplant subcommittee. During the section 402 hearing, the
court addressed Dr. Yung’s possible testimony on the issue of whether Velasquez’s
20
immigration status would be a factor in his eligibility for a lung transplant. Dr. Yung
testified that immigration status would “never” be considered as a “pure criteria” that
disqualified a patient from receiving a lung transplant. At the conclusion of Dr. Yung’s
testimony, the trial court made the following ruling:
“The Court: Dr. Ross has stated look, this policy is new. It just
came in. Within, you know, I guess since this summer. Dr. Yung doesn’t
contradict that. If anything, Dr. Yung doesn’t know. So I accept Dr.
Ross’s testimony. It’s clear to me now that a person’s immigration status
has nothing to do with whether or not he or she is eligible for a lung
transplant.
“At this point there has been no evidence in front of this jury about
Mr. Velasquez’s immigration status. There have been statements during
voir dire and statements during, I think, opening statement, but I’m not
positive about that, but certainly during voir dire. But no evidence as such
has reached this jury’s ears and eyes.
“And I’m now going to rule that that will continue to be the case.
There will be no evidence in this case about Mr. Velasquez being in this
country illegally.
“So, doctor, when you testify, I’m ordering you not to discuss
immigration status and to mention Mr. Velasquez’s immigration status
regarding his criteria for a lung transplant.” (Emphasis added.)
Shortly after the trial court’s ruling, the following exchange ensued:
“The Court: Okay. The record will reflect the jurors, the alternates
are out. At some point [Mr. Metzger] --- you don’t have to do this
immediately. And obviously, this won’t happen until I get back, but it may
be worth doing it sooner, Mr. Metzger, and that is you may want to
consider drafting some sort of curative instruction or admonition regarding
21
the plaintiff’s immigration status, because it’s very clear from Mr. Yung
that [Velasquez’s immigration status is] irrelevant, and under Evidence
Code 352, I am going to exclude it because I do think that the potential for
time consumption, confusion of the jury, and the insertion of extraneous
issues, if you will, substantially outweighs its probative value. So if you
want to draft some sort of cautionary instruction, whatever it is, you are
free to do it.
“Mr. Metzger: I don’t think it can be cured, your Honor.
“The Court: Well, I know that’s your position for the record. It’s up
to you what you want to do. . . . [¶] I think the trial is still on board. I
understand your position. Obviously, this all popped up right around the
time that [Velasquez] was seeing Dr. Ross, and the timing couldn’t have
been worse, but we’ll just forge ahead.”
The presentation of the witnesses’ testimony continued and came to an end.
The lawyers gave closing arguments. The jury began its deliberations.
Two days later, the jury returned a special verdict which included the following
findings, among others: (1) Advanced had been negligent; (2) Advanced’s negligence
was not a substantial factor in causing harm to Velasquez; (3) Advanced had violated one
or more of the provisions of the Hazard Communication Standard (see 29 C.F.R.
§ 1910.1200);6 (5) Advanced’s violation of the Hazard Communication Standard was not
a substantial factor in causing harm to Velasquez; (6) the design of Advanced’s diacetyl
was not a substantial factor in causing harm to Velasquez; (7) Advanced’s diacetyl did
not fail to perform as safely as an ordinary person would have expected when used or
6
The Hazard Communication Standard, commonly known as the “right to know
law,” is intended to ensure that hazards of chemicals are identified, and that information
concerning those hazards is shared with employers and employees.
22
misused in an intended or reasonably foreseeable way; (8) ordinary persons would have
recognized the potential risks of diacetyl.
A jury poll revealed that the findings that Advanced had been negligent and
violated the Hazard Communications Standard were unanimous. The remaining findings
were reached by a nine to three vote.
The trial court granted Advanced’s motion for nonsuit on Velasquez’s common
law negligence theory. The court then entered a minute order indicating it signed and
entered a judgment on the jury’s special verdict.7
Velasquez filed a timely notice of appeal.
DISCUSSION
I. Velasquez’s Claims are not Forfeited
Advanced contends Velasquez forfeited any claim of error related to the trial
court’s statements to the jurors during voir dire concerning his immigration status.
We disagree.
First, Advanced asserts Velasquez invited the trial court to make its statements to
the jurors regarding his status as an undocumented immigrant. Second, Advanced
contends Velasquez may not complain on appeal because he declined the trial court’s
offer to give a curative instruction on the issue of Velasquez’s immigration status.
Finally, Advanced claims Velasquez failed to preserve a record allowing for meaningful
review of any claim of juror bias by failing to move for a new trial. We are not
persuaded by these arguments.
7
The record on appeal contains a document entitled “Judgment on Special Verdict;”
it has a date stamp of December 20, 2012. This document is not signed by the trial court,
and does not contain language reflecting the trial court’s determination of the rights of the
parties. (See Code of Civ. Proc., § 577.) The judgment document in the record consists
of a cover sheet stapled to a copy of the jury’s special verdict. Inasmuch as the parties to
this appeal have argued the merits as though the appeal was taken from a judgment, and
because there is a trial court minute order stating that the court “signed” and entered a
judgment, we accept, in the absence of any contrary showing, that a final judgment in
proper form was signed and entered.
23
An error is invited when a party purposefully induces the commission of error.
(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) The doctrine of invited error bars
review on appeal based on the principle of estoppel. (Ibid.) The doctrine is intended to
prevent a party from leading a trial court to make a particular ruling, and then profiting
from the ruling in the appellate court. (Ibid.) Accordingly, the doctrine of invited error
contemplates “affirmative conduct demonstrating a deliberate tactical choice on the part
of the challenging party.” (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th
679, 706.)
The record shows no such affirmative conduct in Velasquez’s case. Here,
Dr. Ross gave testimony, not elicited by Velasquez, during a section 402 hearing which
led to the trial court’s initial evidentiary ruling on Velasquez’s undocumented status.
While Advanced’s assertion that Dr. Ross’s testimony provided the foundation for the
court’s statements to the jurors regarding Velasquez’s immigration status is correct,
this does not mean that Velasquez “invited” any error. A fair reading of the record
establishes that the court made an initial ruling -- later withdrawn by the court as
unsustainable -- that a person’s status as an undocumented immigrant could be a factor in
the decision to provide or deny the person a lung transplant. The court’s initial ruling
effectively boxed Velasquez into agreeing to the court’s statements to the jury regarding
his immigration status. From the very beginning, Velasquez sought to prevent the jury
from hearing about his immigration status. Under these circumstances, we decline to find
a forfeiture.8
This brings us to the issue of whether Velasquez was required to file a motion for
new trial in order to save his jury-related claims of error on appeal. Advanced argues that
Velasquez forfeited his claims by failing to raise them in a new trial motion supported by
admissible evidence of juror bias. While Advanced’s argument might be persuasive in
8
We apply the same analysis to Velasquez’s decision not to accept the trial court’s
offer to give the jurors a curative instruction.
24
another context, it is not here. Developing a factual record by a motion for new trial was
not necessary in this case to facilitate meaningful appellate review.
Finally, we note that forfeiture is “not automatic” and “does not deprive appellate
court[s] of authority” to entertain appeals. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
Forfeiture is largely a matter of fairness, both to the trial court and to an opposing party.
Forfeiture is intended to advance the policy of allowing and encouraging the trial court to
correct errors in the first instance, thereby avoiding further legal proceedings. The
principles underlying forfeiture of claims on appeal may yield when matters involving the
public interest or the due administration of justice are implicated. (See, e.g. Woodward
Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 712.) Under
the unique circumstances presented by Velasquez’s current case, forfeiture is not needed
to assure fairness to the trial court or to Advanced. We also find Velasquez’s claims on
appeal are of sufficient public interest to weigh against forfeiture.
II. The Trial Court Erred When it Informed the Prospective Jurors of
Velasquez’s Immigration Status
Velasquez contends the trial court erred when it informed the prospective jurors
during voir dire that he is an undocumented immigrant. We agree.
The Law
“No evidence is admissible except relevant evidence.” (Evid. Code, § 350.)
“‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) “The test of relevance is whether the evidence tends ‘ “logically,
naturally, and by reasonable inference” to establish material facts . . . .” (People v.
Scheid (1997) 16 Cal.4th 1, 13.) A trial court “is vested with wide discretion in
determining the relevance of evidence,” but it has “no discretion to admit irrelevant
evidence.” (People v. Babbitt (1998) 45 Cal.3d 660, 681.)
25
But even when evidence is relevant, a trial court may exclude it pursuant to
Evidence Code section 352. Under that section, a trial court is vested with discretion to
exclude relevant evidence when “its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
(Evid. Code, § 352.) A trial court’s exercise of discretion under Evidence Code section
352 is reviewed under the abuse of discretion standard, and will not be disturbed on
appeal except upon the objecting party’s showing that the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner. (People v. Brown
(2003) 31 Cal.4th 518, 534.)
Analysis
We agree with Velasquez that when an undocumented immigrant plaintiff files a
personal injury action, but does not claim damages for lost earnings or earnings capacity,
evidence of his or her immigration status is irrelevant. (Rodriguez v. Kline (1986) 186
Cal.App.3d 1145, 1149 (Rodriguez).) Immigration status has no tendency in reason to
prove or disprove any fact material to the issue of liability; it does not demonstrate
whether the defendant committed a harm-causing act. Immigration status has no
tendency in reason to prove or disprove any fact material to the determination of past
special damages, i.e., what are the plaintiff’s past medical bills up to the date of trial. Nor
is evidence of immigration status relevant to general damages, as it does not prove or
disprove what is the reasonable amount of money to compensate the plaintiff for his or
her past and future pain and suffering. Further, immigration status alone has no tendency
in reason to prove or disprove any fact material to the issue of a party’s credibility.
Our conclusion is the same with respect to Velasquez’s immigration status and his
claim that he will require future medical treatment, specifically, a lung transplant.
Dr. Ross testified at the 402 hearing only that he would have to “look into the issue” of
whether UNOS policy allowed his team to consider immigration status in granting a lung
transplant. He never testified he was certain it would or could be considered. And, both
26
party’s experts eventually testified that UNOS policies preclude consideration of alienage
status in a transplant decision. As such, the evidence was simply irrelevant. When
evidence of a plaintiff’s immigration status is irrelevant to the issue of whether or not he
will receive future medical treatment, it is inadmissible. (Evid. Code, § 350.) In light of
these principles, the jurors should not have been informed that Velasquez is an
undocumented immigrant.
We understand the trial court did not foresee that Velasquez’s immigration status
would turn out to be entirely irrelevant, given that at the 402 hearing Dr. Ross initially
indicated he was uncertain whether UNOS would allow its consideration, and he only
clarified that it could not be considered when he testified at trial. Though the non-
discrimination policy became effective in September 2012, before Dr. Ross testified at
the 402 hearing on October 3, 2012, apparently he was unaware of the new policy at that
time.9
But even before the experts clarified the UNOS policy, we believe the trial court
abused its discretion in determining Velasquez’s alienage status was admissible under
Evidence Code section 352, and the jury should not have been informed of it. From the
start, Dr. Ross’s testimony that he would have to find out whether UNOS and UCLA
took alienage status into account was – at best – only nominally relevant. As we have
noted, Dr. Ross’s testimony did not establish that Velasquez would be disqualified for a
lung transplant at UCLA. Further, Dr. Ross did not testify whether hospitals across the
United States consider alienage status in the decision to grant a lung transplant.
Moreover, Dr. Ross’s testimony did not provide any information concerning lung
transplant availability in any other country.10 On the other side of the scale, the trial court
9
Advanced’s expert likewise agreed that alienage status had no effect on the
likelihood of receiving a lung transplant.
10
The dearth of information on the availability of a lung transplant outside of UCLA
may have been due to the fact that the issue of immigration status was peripheral to the
overall purpose of the section 402 hearing at its inception, which was the “need” for a
transplant.
27
correctly recognized the potential prejudice in admitting evidence of Velasquez’s
immigration status was very real, and very strong. The trial court noted more than once
that, but for the probative value of the evidence of immigration status on the issue of the
likelihood that he would receive a lung transplant, it would not admit what it considered
“highly prejudicial” evidence of Velasquez’s immigration status.
As Velasquez and the amici parties accurately point out, cases both in California
and in multiple other jurisdictions have recognized the strong danger of prejudice
attendant with the disclosure of a party’s status as an undocumented immigrant.
(See, e.g., Hernandez v. Paicius (2003) 109 Cal.App.4th 452; Rodriguez, supra, 186
Cal.App.3d 1145; Salas v. Hi-Tech Erectors (2010) 168 Wash.2d 664 [230 P.3d 583];
Republic Waste Services, Ltd. v. Martinez (Tex.App. 2011) 335 S.W.3d 401; Maldonado
v. Allstate Ins. Co. (Fla.App. 2001) 789 So.2d 464; Klapa v. O & Y Liberty Plaza Co.
(1996) 168 Misc.2d 911 [645 N.Y.S.2d 281]; Gonzalez v. Franklin (1987) 137 Wis.2d
109 [403 N.W.2d 747]; Peterson v. Neme (Va. 1981) 281 S.E.2d 869.) In such cases,
reviewing courts have found that rulings to exclude evidence of a party’s immigration
status were not error, or that admitting evidence of a party’s immigration status was error
because the evidence was irrelevant to any material issue or because it was only
marginally relevant to any material issue, and that the error justified reversal. We agree.
We find the trial court abused its discretion in determining the evidence was
admissible under Evidence Code section 352. The court overweighed the probative value
of the evidence of immigration status on the question of whether Velasquez could
feasibly argue he expected to require, and to receive, a lung transplant in the future.
The evidence did not show that, because of his immigration status, Velasquez would be
foreclosed from receiving a lung transplant, if one was necessary.
28
In summary, whether examined as an issue of total inadmissibility for want of
relevance under Evidence Code section 350, or as a matter of discretionary exclusion
under Evidence Code section 352, the trial court erred when it ruled that Velasquez’s
immigration status could be presented to the jurors. Thus, it erred by informing the jurors
of Velasquez’s immigration status during voir dire.
III. The Trial Court Erred When it Denied the Motions for Mistrial
Velasquez contends the trial court erred in denying his multiple motions for a
mistrial, “especially upon recognizing that [his] residency status was irrelevant.”
We agree.
The Law
It is well-settled that a trial court has the discretion to declare a mistrial when
“an error too serious to be corrected has occurred.” (Petrosyan v. Prince Corp. (2013)
223 Cal.App.4th 587, 593; Abbott v. Mandiola (1999) 70 Cal.App.4th 676, 682.) Among
the recognized grounds for a mistrial are “ ‘any . . . irregularity that either legally or
practically prevents . . . either party from having a fair trial.’ ” (Clemente v. State of
California (1985) 40 Cal.3d 202, 217.) Whether a particular trial incident has incurably
damaged a party’s right to a fair trial is by its nature largely a qualitative matter requiring
an assessment of the entire trial setting. For this reason, trial courts are vested with wide
discretion in ruling on mistrial motions. (Blumenthal v. Superior Court (2006) 137
Cal.App.4th 672, 679.) The trial court, “present on the scene, is obviously the best judge
of whether any error was so prejudicial to one of the parties as to warrant scraping the
proceedings up to that point.” (Id. at p. 678, italics omitted.) A trial court should grant a
mistrial only when a party’s chances of receiving a fair trial have been irreparably
damaged. (Id. at p. 679.)
Analysis
From the earliest stages of trial, even before voir dire of the jurors began, the trial
court openly recognized the strong risk of prejudice inherent in evidence of Velasquez’s
immigration status. At a pretrial status conference, during a discussion with the lawyers
29
about the then-pending motions in limine regarding the immigration status issue, the
court made the following comments: “If it weren’t for the need of the lung transplant, I
would just exclude all evidence about his alienage status and that would be the end of it.
[¶] I think it’s clear under Evidence Code [section] 352 it would be unduly prejudicial.”
The court’s concern was not assuaged even as it ruled at the initial section 402 hearing
that evidence of Velasquez’s immigration would be admissible. At that time, the court
expressly acknowledged that evidence of Velasquez’s immigration status was “highly,
highly prejudicial,” but concluded that its probative value in Velasquez’s case was
“definitely more than a little.”11 Later during trial, as cross-examination of Velasquez
was about to begin, the court directed Advanced’s counsel not to question Velasquez
“about citizenship.” This led to another exchange between the court and Velasquez’s
counsel about the disclosure of Velasquez’s immigration status by the court. During that
exchange, the court stated that it understood the concern expressed by counsel, and
continued: “Beside beating my chest, you know, for mercy, what do you want me to
do?” When Velasquez’s counsel suggested it grant his motion for mistrial, the court
denied the motion.
The trial court correctly assessed the prejudice inherent in informing the jury of
Velasquez’s immigration status. Further, the trial court was correct in the ultimate ruling
that evidence of Velasquez’s immigration status was irrelevant on the issue of his
possible future medical treatment. Overall, the record shows, without room for
meaningful dispute, that the court recognized at all times during the trial proceedings that
there was a risk of undue prejudice from this evidence, but nevertheless initially
determined there was a counter-balancing reason for admitting the evidence. Once the
court determined that this counter-balancing reason for admitting the evidence did not
exist, the only remaining weight on the scales was on the side of the strong inherent risk
of prejudice from the evidence. Having already informed the jurors that Velasquez was
11
As discussed above, the record shows the court subsequently changed its view and
found the evidence had no value.
30
an undocumented immigrant we are amply satisfied that, at this juncture, the trial court
should have declared a mistrial.
We find the error prejudicial.12 Advanced asserts, and we agree, that the
appropriate standard of review is to determine whether a result more favorable to the
appealing party would have been reached in the absence of the error. Here, the critical
issue decided by the jury was causation. The jury voted nine to three that Advanced’s
acts were not a substantial factor in causing harm to Velasquez. Our task is to determine
whether we believe this same result would have occurred in the absence of the trial
court’s disclosure of Velasquez’s immigration status. Because we find it reasonably
probable Velasquez would have obtained a more favorable verdict absent the error,
particularly with respect to the jury’s causation finding, we find reversal is warranted.
As noted above, David Egilman, M.D., testified on Velasquez’s behalf on the
issue of whether diacetyl caused Velasquez’s bronchiolitis obliterans. Although Dr.
Egilman’s testimony suffered from weaknesses, including a significant amount of
impeachment concerning his expert testimony in an earlier case, we do not find his
testimony to have been so underwhelming that it necessarily explains the jury’s causation
findings. Brent Findley, Ph.D., testified on behalf of Advanced on the issue of causation,
focusing more broadly on the then-existing state of ongoing scientific research on the
subject of whether diacetyl causes bronchiolitis obliterans. Dr. Findley’s testimony
explained that the research had not yet reached any actual conclusions concerning a
causal link between diacetyl and bronchiolitis obliterans, thus refuting Dr. Egilman’s
assertions that the research did show such a link. However, Dr. Findley also
acknowledged that ongoing research into the subject was scientifically warranted.
We cannot conclude that Dr. Findley’s testimony was so strong that it necessarily
explains the jury’s’ causation findings.
12
We decline to find this error structural, or reversible per se. Velasquez has not
presented us with suitable authority to support this argument.
31
Apart from the competing expert testimony, there was extensive evidence at trial
regarding the shortcomings of Velasquez’s employer, Gold Coast, regarding safety in the
workplace. Further, there was evidence showing that Velasquez did not follow
workplace safety rules. All of this evidence was certainly admissible to show multiple
possible factors in the cause of Velasquez’s health problems. But, we must acknowledge
that Velasquez’s immigration status could have affected the jurors’ assessment of
causation. A juror could have concluded that Velasquez would never have gotten sick
but for working at Gold Coast, which should never have occurred because he was in the
country illegally. In other words, the causation issue in this case is difficult to divorce
from the issue of immigration status. When all of the evidence is taken into
consideration, we find it reasonably probable that a result more favorable to Velasquez
would have been reached in the absence of this error.13
V. The Negligence Cause of Action
In its respondent’s brief on appeal, Advanced argues that no alleged defect in the
jury’s special verdict supports reversal of the trial court’s order granting the company’s
motion for nonsuit on Velasquez’s cause of action for common law negligence. As the
company correctly notes, the court ruled nonsuit was proper because Velasquez failed to
present any evidence during trial on the standard of care in the food flavoring industry at
the time Velasquez was exposed to Advanced’s diacetyl, a required element for a cause
of action for common law negligence.14 We see no argument in either Velasquez’s
opening brief on appeal or his reply brief explaining that he did present evidence on the
13
Having determined that the trial court erred in denying Velasquez’s motion for
mistrial, and that the error warrants reversal, we do not reach his remaining claims of
error on appeal.
14
As noted above, the trial court granted nonsuit after the jury’s special verdict, but
before entry of judgment. Given the timing, the ruling in substance may be viewed as
granting judgment notwithstanding the verdict on Velasquez’s cause of action for
common law negligence. The power to grant a judgment notwithstanding the verdict is
“absolutely the same” as the power to grant a nonsuit. (See Beavers v. Allstate Ins. Co.
(1990) 225 Cal.App.3d 310, 327.)
32
standard of care. Accordingly, we agree with Advanced that the trial court’s nonsuit
ruling should remain intact.
DISPOSITION
The judgment is reversed except as to the trial court order granting Advanced’s
motion for nonsuit on the common law negligence cause of action. The case is remanded
to the trial court for further proceedings consistent with this opinion. Appellant is
awarded costs on appeal.
CERTIFIED FOR PUBLICATION
BIGELOW, P.J.
We concur:
RUBIN, J.
GRIMES, J.
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