California Court of Appeals, Second District, Eighth Division
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC370319. Anthony J. Mohr, Judge.
[Copyrighted Material Omitted]
Metzger Law Group, Raphael Metzger, Kimberly A. Miller, Kathryn A. Saldana, Kenneth A. Holdren; Simon Greenstone Panatier Bartlett and Brian P. Barrow for Plaintiff and Appellant.
The Hastings Appellate Project, Gary A. Watt, Stephen Tollafield, Tiffany J. Gates; People for the American Way, 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, 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.
Horvitz & Levy, David M. Axelrad, Bradley S. Pauley; Lewis, Brisbois, Bisgaard & Smith, Peter L. Garchie, Ruben Tarango; Sedgwick, Craig S. Barnes and Robert Kum for Defendant and Respondent.
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., doing business as 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.
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 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.
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 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.
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 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 king 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 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 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 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
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.”
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 ...