May 3, 2015
As we wait (and wait) on the federal government’s promises for immigration overhaul to materialize, the latest research estimates that more than 200,000 undocumented immigrants currently live in Michigan and Ohio. While that status denies them certain benefits, undocumented immigrants who are injured by the tortious acts of another person are entitled to seek the same types of compensatory damages as anyone else. In other words, a defendant tortfeasor cannot use a plaintiff’s undocumented immigration status to refute the defendant’s liability for that plaintiff’s injuries.
But that hardly ends the discussion. In the vast majority of states, a plaintiff’s undocumented immigration status is “material and relevant to the issue of damages, specifically the present value of future lost earnings.” That is a significant consideration. Depending upon the extent of injury, a plaintiff’s future lost earnings – i.e., the difference between the earnings the plaintiff was capable of earning over his or her lifetime before injury and that which he or she is capable of earning after injury – can comprise the lion’s share of his or her total compensatory damages.
To prove future lost earnings, a plaintiff offers evidence of the income he or she would have earned in the United States over his or her work life expectancy had he or she not been injured by the defendant. Yet does the undocumented immigrant plaintiff lose the same opportunity? On the one hand, since the plaintiff is not authorized to work in the United States, should he or she be allowed to use undocumented United States income as the multiplier for future lost earnings? Should this plaintiff be barred from even introducing a United States-based multiplier? On the other hand, should it be the defendant’s affirmative burden to prove that the undocumented immigrant plaintiff actually will be removed from the United States before that defendant can introduce an alternative multiplier – i.e., in many cases, the lesser income that the plaintiff would have earned in his or her county of origin after injury? Should the judge decide the proper multiplier as a matter of law, or should a jury be allowed to weigh all the options when calculating damages?
In Michigan, at least one court has allowed a defendant to introduce evidence of the plaintiff’s undocumented immigration status for the sole purpose of arguing that the proper measure of future lost earnings would be the lesser earnings that the plaintiff would have earned in his or her country of origin, which was Mexico. According to that court, since an undocumented immigrant is not authorized to work in the United States, the plaintiff was subject to removal from the United States to Mexico “at any time,” which means he or she would not be earning future income in the United States. Nevertheless, contrary to other State court practice, this Michigan court still allowed the jury to make the ultimate determination of which multiplier to use to calculate the undocumented immigrant plaintiff’s future lost earnings.
In Ohio, while most of these questions appear to remain unanswered, a few common themes offer some insight into what factors an Ohio court would likely consider. In Ohio, like other states, the plaintiff has the burden of proving with “reasonable certainty” – i.e., probability – that the injury prevents him or her from attaining his or her pre-injury earnings in the future. An undocumented immigrant plaintiff would have a difficult time persuading an Ohio court to disregard that the foundation of his or her future lost earnings in the United States – i.e., his or her pre-injury earnings multiplied by the years of continued employment in that position in the future – rests upon an express violation of current federal immigration law. Historically, Ohio courts have not been receptive to similar notions.
These future-lost-earnings questions similarly apply to documented, temporary non-immigrant plaintiffs. For example: if a H-1B nonimmigrant worker is tortuously injured in an unrelated car accident while legally residing in the United States, and if he or she is entitled to future lost earnings for years to come as a result, is that H-1B worker entitled to base future lost earnings on his or her current United States income? What about after his or her temporary H-1B status ends in a few years? Who would have the burden of proving that the plaintiff would – or would not – then adjust status to a permanent resident or change status to another temporary non-employee classification? Can such a thing even be proven with “reasonable certainty,” or is it wrought with endless speculation?
One thing is clear – even if an immigration overhaul occurs as promised, it will not solve these fundamental State law damage issues. The individual courts will need to address these questions as they arise, which means defendants should be prepared to raise them.
 For further information on how this and other related issues are being handled in other states, please see “Damages and the Undocumented Worker” authored by David C. Marshall, Esq., and Andrew W. Kunz, Esq., in the April 2015 edition of the For The Defense magazine.
 See Testimony of Jeffrey S. Passel, “Unauthorized Immigrant Population: National and State Trends, Industries and Occupations,” Pew Research Center, Appendix A, Table A1 (March 26, 2015), available at http://www.pewhispanic.org/2015/03/26/appendix-a-additional-charts-and-tables-4/.
 Melendres v. Soales, 105 Mich. App. 73, 78; 306 N.W.2d 399 (1981).
 In fact, an employer who discovers that an employee is an undocumented immigrant is required by federal law to discharge that employee immediately. See 8 U.S.C. 1324a.
 Yet Michigan law appears unresolved as to whether such a defendant also must undertake the unfavorable burden of trying to prove the likelihood that the federal government would remove the undocumented immigrant plaintiff from the United States. Compare Melendres, 105 Mich. App. at 78 with Ojeda v. Siegler, __ Mich. __, 828 N.W.2d 386 (2013) (Markman, J., dissenting).
 One Ohio federal court has acknowledged that an undocumented immigrant plaintiff’s status is relevant to his or her state law claim for future lost wages, and therefore a proper and discoverable inquiry. See Davila v. Grimes, No. 2:09-cv-407, 2010 WL 1737121 (S.D. Ohio, Apr. 29, 2010).
 See, e.g., Eastman v. Stanley Works, 180 Ohio App.3d 844, 2009-Ohio-634, ¶25 (10th Dist.); Ohio Jury Instruction CV 315.01(11).
 See, e.g., Copeland v. Neidhamer, 2d Dist. No. 9662, 1987 WL 10950 (Ohio Ct. App. May 6, 1987) (“We find the circumstances analogous to cases where a person seeks to recover for loss or [sic] earnings in an illegal occupation or for loss of profits in an illegal business. Generally, no recovery may be had in such situations.”)