Not a Lexis+ subscriber? Try it out for free.
LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
Denver attorney James E. Gigax writes: "This will summarize a jury verdict rendered on Friday April 27, 2012, in U.S. District Court (D.Wyo.). Omar Romero's Wyoming work comp claim was denied because he was undocumented, so we sued his employer, a contractor, in federal court, in common law.
CASE: Omar Romero v Reiman Corp.
JUDGE: Hon. Nancy D. Freudenthal
VERDICT: $1,000,000, non-economic damages only. 10% fault to plaintiff
Summary: Workplace injury from 10 foot+ fall upon concrete. Worker stuck with medical bills as he, as an illegal immigrant, is not an "employee" under Wyoming Workers Compensation. The employer denies responsibility, so employee has no choice but to sue employer in court. The employer has no immunity, given the lack of work comp coverage.
The 21 year client, Omar, does not have legal permission to work or be in the United States. In March 2010 he is working for a highway contractor, on a road project between Jackson and Bondurant, Wyoming. Omar rigs up a one-ton load of steel rails to an excavator boom bucket to be lifted and moved. Omar's rigging method is approved by his boss, who is operating the excavator.
When the load is lifted, a piece of rail weighing at least 160 pounds flies out and strikes Omar in the chest, launching him up into the air and flying head first over a guard rail and down at least 10 feet, where he lands upon a cement slab, bleeding from the mouth and ear, unconscious. An EMT is called. Omar does not recognize anyone and is obviously in shock.
Omar's boss, having "checked him for broken bones to make sure he didn't have any broken bones" cancels the EMT call, and directs that Omar be "helped" into a pickup truck and driven not to the nearest hospital, in Jackson, but to a little clinic in Pinedale, Wyoming.
The boss testifies at trial that "Pinedale is a little farther away than Jackson, but to all the locals, Pinedale was a far better clinic than . . ." the full service hospital in Jackson. The pickup truck with Omar aboard is driven at 100 MPH in the direction of Pinedale, getting stopped for speeding on the way. Upon arriving at the Pinedale Clinic, the doctor there immediately calls for an air ambulance, to take Omar to a hospital in Idaho. Omar gets stuck with the air amb bill.
Omar is diagnosed with contusions and a broken wrist that is surgically set. He gets three months of wrist and shoulder rehab.
While Omar complained of back pain on day 1 (per the ER chart), the medical focus is on rehab of the wrist and shoulder for three months, after which Omar is essentially shut out of the medical system when the Wyoming Work Comp system determines he is undocumented. Omar is stuck with all the medical bills.
Seventeen months after the 3/10 fall, Omar is diagnosed (per MRI) as having herniated lumbar discs by a physician arranged on a lien basis-which the defense hammered at trial.
Omar had been in a significant MVA two years earlier; he denied and there was no evidence that he had seen a doctor for the MVA. His physician, Pamela Knight, M.D., effectively testified that Omar's lumbar spine was injured in the 3/10 fall, not in the 5/08 MVA.
Omar's back hurts from day 1; both he and his wife to be, now his wife, testify at trial that it is all but impossible to make love and otherwise for him to function normally given his back pain. T his was corroborated by Helen Woodard. The man has true quality of life issues, and cannot return to heavy labor jobs, for life.
The wife did get pregnant during all of this. Omar's English was adequate, barely, for him to testify. There was no Spanish language testimony, but a lot of thick Mexican accents.
The trial court struck Omar's claims for future wage losses and future medical expenses, given his undocumented status. Note that this is unsettled law in Wyoming and the district court's order was based upon a prediction of how the Supreme Court would likely rule. My views on this point are of record.
The man will also need back surgery some day and we were not able to make a claim for these expenses, given his undocumented status, under the same Order precluding the claim for future wage losses.
Omar's 20 year old wife, a real sweetheart, is a U.S. Citizen. Omar and his wife have an immigration lawyer, who was prepared to testify that Omar is all but certain to become a Permanent Resident. This testimony also was precluded, citing Daubert.
In view of these rulings, I decided to display Omar's illegal status openly; our motion in limine on illegal status was withdrawn (a nod to Jury Consultant Jessica Hoffman Brylo, whose affidavit I filed.
We abandoned the claims for incurred medical bills (a nod to Rex Parris and Ball 3) and sought solely noneconomic damages for only pain and suffering, impairment, and lost quality of life. A real high wire moment.
For voir dire, the court used some of the stock questions normally used in criminal cases dealing with illegal aliens. In my voir dire, I asked who here has some of the misgivings I have with illegals. When there were no hands, I said "well, maybe I'm the only one here that has a problem with open borders" or some such.
So began the trial. The defense repeatedly brought up that Omar had used false I.D. when hired at Reiman Corp., and that he used them with his other jobs. Omar replied that his Reiman boss knew the documents were bogus. The jury also saw that virtually all of the laborers spoke Spanish.
Omar's brother testified that the boss threatened to have Omar deported if Omar "fought the company." The boss denied saying this.
The boss also testified that he never lifted the load of steel (he just "lifted the rigging" a bit), which contradicted his earlier work comp testimony. Our construction expert testified that it would be impossible for steel to go flying unless the load was lifted by the excavator, citing one of Newton's laws, common sense, etc.
There are no damage caps in Wyoming. In opening and closing, I asked for $3M each for pain/suffering, impairment/disability, and for lost quality of life.
In closing, for lack of a better anchor, I told the jury that "some juror may say that $9M is more than the seven-figures that Reiman made on the project", but that Omar w ill never be the same.
Making a long story a bit shorter, much inspiration was drawn from Twelve Heroes One Voice, Reptile, Ball 3, Rule of the Road and Polarizing.
As to Reptile, I pointed out that it was a miracle that the steel rail did not fly into the open highway and fly into the windshield of a car of someone taking their grandchildren to Yellowstone.
Various OSHA and construction/crane safety rules were violated. This was made plain to the jury.
As to Polarizing, the "they're calling Omar a liar, cheat and a fraud" was the subject of the judge's comment before closing; she advised that their was no evidence the defendant was calling Omar such, and the argument may tend to mislead the jury into thinking that they must find such in order to rule against him. In truth, the defense was intimating that Omar and his witnesses were "either mistaken or something else" so the argument was fair, but knowing the judge has heard the argument in other cases, her comment may provide insight into trial courts' evolving thoughts on the Polarizing method.
I was ably assisted by first-year lawyer Kara Jensen, who proved her bravery early on by riding in the right seat of a Cessna 172, with a greying lawyer to her left at the helm, flying to the Cheyenne airport."
James E. Gigax
Bloom Murr Accomazzo & Siler, PC
410 17th Street, Suite 2400
Denver, Colorado 80202