Employee’s Whistleblower Claim Reinstated Under Recent Appellate Division Decision

By: Ralph R. Smith, 3rd, Esq.

Thanks to a recent decision by the New Jersey Appellate Division, a school bus mechanic had his whistleblower claim under New Jersey’s CEPA law reinstated after it was originally dismissed by a Morris County trial judge.

In Dukin v. Mt. Olive Twp. Bd. of Ed, the plaintiff had reported to the State Motor Vehicle Commission that a district school bus needing brake repairs was wrongfully placed into service.  A short time thereafter, on January 19, 2010, plaintiff received two written reprimands, one for operating a vehicle in the district’s garage without proper ventilation of the exhaust, and a second for phoning his union representative while at work to report the first reprimand.  A few days later, plaintiff complained to the New Jersey Office of Public Employees Occupational Safety & Health that he had been ordered to elevate a bus using a bumper jack that was on uneven pavement, contrary to accepted safety procedures.  Thereafter, on January 25, the plaintiff was called into a meeting with his district superintendent and was asked why he told the state inspector about the bus with brake problems.  Plaintiff was then told that he was being fired, but after he said that his right to make such a report was protected under the whistleblower laws, the superintendent asked for a break, and thereafter reinstated the plaintiff and said he would not be punished for his actions.

An inspector from the Public Employee’s Occupational Safety and Health Department eventually visited the district in response to plaintiff’s Complaint and found 13 regulatory violations and imposed fines of $4,500.00 per day.  Four days later, plaintiff’s union representative told him he was being terminated and that the district would pay his salary through May, 2010 (and his health benefits through June, 2010) if he agreed to release the school district from liability.  The plaintiff said no to the deal and remained working at the district until June, 2010, when his contract was non renewed.

Plaintiff thereafter brought a lawsuit against the school district, and four of its administrators.  The defendants moved to dismiss the case, claiming that the non renewal of plaintiff’s contract was due to the elimination of his position for financial issues and not his whistle blowing activities.  While the court ultimately determined that plaintiff’s reports about the bus and other related work safety conditions in the garage were indeed whistleblower activities, it nonetheless granted summary judgment accepting the district’s argument that plaintiff’s position was eliminated for budgetary reasons.

On appeal, the Appellate Division found that the plaintiff had provided sufficient evidence to avoid having his case dismissed by raising a disputed factual issue concerning the articulated reason for his contract non renewal.  In its decision, the court reiterated the very liberal standard to be applied in assessing CEPA claims here in the State of New Jersey.  Specifically, once a plaintiff establishes a prima facie case of possible protected whistle blowing under CEPA, the burden shifts to the employer to rebut the presumption of unlawful retaliation by articulating a legitimate, non retaliation reason for the employment action.  To avoid summary judgment, a plaintiff need not have direct evidence that an employer retaliated against him, but must instead demonstrate such weaknesses, inconsistencies or contradictions in the defendant’s proffered reasons for the underlying action that a reasonable fact-finder could conclude that they are unworthy explanations for the disputed employment action.  The Appellate Division found that sufficient evidence meeting this burden was submitted by plaintiff in showing that while the district claimed that his position was eliminated for financial reasons, it nevertheless hired another mechanic subsequent to the non-renewal of plaintiff’s contract.  Accordingly, the court reinstated plaintiff’s CEPA claim and sent the matter back for handling at the trial court level.

This case highlights that, whenever an employer is seeking to discipline an employee, it is critical that the employer do so for non-retaliatory reasons, and in defending against any potential whistle blower claim, the employer must be able to articulate a legitimate reason for the disciplinary action that can withstand any claim that it is pretext for any type of retaliation.   Under the circumstances presented by the facts in this case, the plaintiff was able to offer enough evidence raising a question about the motives underlying the non-renewal of his contract to avoid a pretrial dismissal of his case.  Accordingly, more so than ever, in dealing with employees who may have engaged in protected CEPA type whistle blowing, any adverse actions taken against the employee must be supported by legitimate non-retaliatory reasons, and whenever encountering such potential disciplinary situations, it is wise to seek legal counsel to ensure that any such action will withstand later legal scrutiny.

Sidewalk Raised by 1 ½ Inches Determined to be Dangerous Condition

By: Betsy G. Ramos

In the unpublished decision of Colon v. Woodbridge Housing Authority, Docket no. A-1634-12T4 (October 30, 2013), the Appellate Division ruled that a 1 ½ inch raised sidewalk could constitute a dangerous condition under the Tort Claims Act. But, the Appellate Division, finding that the actions or inactions of the defendant Woodbridge Housing Authority were not palpably unreasonable, affirmed the trial court’s dismissal of the case.

The Plaintiff, Yvette Alvarado-Colon, claiming injury when she tripped over a raised public sidewalk, sued the defendant, Woodbridge Housing Authority. The sidewalk was located outside of the entrance way to a public building and was intended for pedestrian travel.

The trial court judge granted the Authority’s motion for summary judgment, finding that no dangerous condition of public property existed. The plaintiff filed this appeal.

The plaintiff submitted an expert report that this raised sidewalk was reflective of basic construction defects and that the condition had been clearly present for a substantive time period before the accident. The expert stated that it took several years to produce this level of concrete ridge formation.

The trial court judge found that no dangerous condition existed. The Appellate Division, however, disagreed, holding that a jury could consider a 1 ½” declivity across a sidewalk a dangerous condition under the Tort Claims Act.

But, the court pointed out that the Act also requires a plaintiff to prove that the defendant’s actions or inactions in connection with this alleged dangerous condition were palpably unreasonable. The condition of the property must pose a substantial risk of harm. The Appellate Division also stated that not every defect in a public roadway, even when caused by negligent maintenance, is actionable.

Here, the Appellate Division noted that there was no evidence of prior tripping hazards and that such “minor” irregularities are commonplace on sidewalks. Thus, the court held that the plaintiff’s proofs, at best, established ordinary negligence, rather than patently unacceptable conduct, the standard needed to prove palpably unreasonable conduct. Accordingly, the court affirmed the trial court’s dismissal.

Although this is an unpublished decision, it could be very helpful in defending against sidewalk fall cases. The court’s finding that a 1 ½” differential could be a dangerous condition is not surprising. However, finding that these types of irregularities in a public sidewalk are “commonplace” and that the Authority’s failure to remediate was not palpably unreasonable in light of no prior tripping hazards could be a very useful argument in summary judgment motions in these types of cases.

Truck Driver’s Evasive Maneuver Insufficient to Form Basis for Liability

By: Christopher J. Hoare, Esq.

A trucking company and its tractor trailer driver who avoided contact with the rear of a stopped vehicle by pulling into the adjoining lane without contacting with other vehicles was dismissed by summary judgment in the recent appellate decision of Matino et al. v. Tipton Trucking, LLC, A&L Harper Trucking Co., et al.

A tractor trailer combination, a dump truck and a flat bed truck were following one another around a curve in the road as they approached a traffic signal ahead.   The tractor trailer driver testified that the dump truck had been tailgating him for the past several miles and that he was distracted.  He was looking in the rear view mirror constantly.  The tractor trailer driver suddenly saw a line of stopped cars waiting for a red light around the curve.  Believing the dump truck was going to strike the rear of his trailer, the combo driver pulled his rig into the shoulder lane and stopped safely.  The tractor trailer did not come into contact with any cars or trucks in so doing.  The dump truck, seeing the stopped traffic ahead, stopped short and the rearmost vehicle, a flatbed trailer struck the rear of the dump truck and then drifted into the oncoming lane where it contacted an automobile killing its driver.

The rearmost flatbed trailer defendant hired an accident reconstruction expert who concluded in his report that the tractor trailer operator contributed to the accident by his sudden lane shift and stop.

At the close of discovery, the trial court granted summary judgment on behalf of the owner and driver of the tractor trailer who pulled into the shoulder lane to avoid impacting the stopped automobiles and NJ Superior Court- Appellate Division affirmed.   The Court ruled that the plaintiff failed to carry her burden of proof that the tractor trailer’s evasive maneuver caused or contributed to the subsequent accident involving the other vehicles.  The plaintiff’s expert ignored the eyewitness testimony and the statements of the drivers to the effect that the tractor trailer driver was concerned that the dump truck behind him was tailgating his truck.  The fact that the tractor trailer had not contacted any other vehicle was also a major factor in the appellate court’s affirmation of the summary judgment.

The decision to file a motion for summary judgment is an important one.  Summary judgments that depend on the factual evidence require careful questioning during the depositions of all eyewitnesses and parties as well as a critical assessment of plaintiff’s expert witness opinion for its sufficiency.   But if the defendant does its homework, the rewards are great.

Transportation Broker Not Liable Under Carmack Amendment for Injuries Caused by Truck Driver

By: Christopher J. Hoare, Esq.

In January of 2014, in the case of Kavulak v. Transportation Solutions Group, et al., the U.S.D.C.W.D.N.Y. found that the estate of a deceased driver whose car was struck by an independent owner-operator had no claim against the transportation broker that dispatched the trip in question under the Carmack Amendment.  This is positive news for transportation brokers and their liability insurance providers.

This case involves a fatal truck/car collision.  The decedent was the driver of an automobile struck by the insured tractor trailer. The operator of the tractor trailer had swerved to avoid a dump truck that had stopped abruptly when a motorist ahead stopped for a red light. In an effort to avoid striking the dump truck, the insured tractor trailer swerved into the adjoining lane striking the decedent’s vehicle.

Plaintiff’s Estate sued the owner of the truck as well as the transportation broker who initiated the shipping of the trailer involved in the accident.  The estate plaintiff sued both the truck owner as well as the broker for the injuries caused to the decedent.  The transport broker moved for summary judgment.  The court granted summary judgment for the transport broker finding that the Carmack Amendment controlled and the decedent lacked standing to bring suit under Carmack Amendment.

The Carmack Amendment, 49 U.S.C. Sec. 14706(a)(1) was passed in the late 1800’s to govern the rights of shippers of goods by motor carrier.  Under the Carmack Amendment, a motor carrier may be held liable for property damage to a shipment by “the person entitled to recover under the receipt or bill of lading.”  The first shipper of goods by motor carrier is responsible if those goods are subsequently damaged in transit by subsequent shippers.

The district court found as a matter of law that the Carmack Amendment imparts rights of recourse only to the owner of property being shipped by motor freight, not to third persons involved in an auto accident with the truck in which the only claims involve bodily injuries.   The court noted that the clear language of the Carmack Amendment never was meant to govern personal injuries to third parties caused by the motor carrier.  In addition, the court observed that the decedent had no standing under the Carmack Amendment in order to bring suit against the tractor trailer since the Carmack Amendment only defines duties between the owners of goods and the shippers by motor freight.

Given its influence, always include the Carmack Amendment as an affirmative defense in any and all Answers to any personal injury suits arising from truck/car accidents.

FELA Preempts State Law

FELA Worker Not Eligible for New York’s No Fault Insurance Benefits

By: Christopher J. Hoare, Esq.

In a recent New York State Court decision, Christin v. Metro North Commuter Railroad, et al., the court reaffirmed the FELA’s superiority over N.Y. State Insurance Law when it dismissed the lawsuit filed by a railroad worker who was injured while driving a railroad-owned truck in the course and scope of his duties.

In 2008, plaintiff was driving a company van while on duty as a car mechanic for Metro North.  Another vehicle ran a red light and struck the van causing injuries to Christin.   The company van he was driving at the time carried No-Fault Insurance coverage issued by Travelers Insurance as required by New York law.  The injured worker sued his railroad employer under the FELA for his pain and suffering, as well as past and future loss of earnings.  Plaintiff’s medicals were paid for by his railroad employer.

Shortly after filing his FELA suit, plaintiff also submitted a claim for no-fault benefits to Travelers.  Plaintiff claimed that despite his FELA suit for the same injuries and damages, he was also entitled to state no-fault benefits in the maximum amount of $2,000.00 per month  in disability payments.  The Travelers Insurance policy denied plaintiff benefits citing an exclusion in its policies for employee accidents.  Plaintiff appealed to the N.Y. State Insurance Commission which upheld Travelers’ denial of coverage under the exclusion in the policy for injuries arising out of on-the-job accidents.  Plaintiff joined Travelers to his FELA case.

Travelers filed a Motion for Summary Judgment, citing the preemptive effect of the FELA which is the exclusive remedy for railroad employees injured in the course and scope of their employment.  The Court noted that the FELA is the exclusive remedy of railroad employees who are injured in the course and scope of their employment.  Because it is a federal law, the FELA preempts any state law which is in conflict with the FELA, such as state no-fault insurance laws.

Plaintiff’s counsel opposed the Motion for Summary Judgment by saying that although plaintiff had filed an FELA suit against Metro North, he should also be entitled to no fault disability benefits under the insurance policy in effect on the vehicle he was operating at the time of his accident.  The trial court disagreed.

The trial court held that Congress, in passing the FELA, intended to occupy the entire field of the rights and remedies of injured railroad workers which are exclusive to all other state court remedies.  As a matter of law, the trial court was unable to enforce plaintiff’s access to any other benefit programs for the same injuries or damages.  The trial court let stand the ruling of the N.Y. State Insurance Board’s decision affirming Travelers’ denial of benefits to the FELA plaintiff.

USDC-DNY Dismisses FELA Suit

Accident Not Foreseeable to Railroad and Inadmissible Expert Opinion

By: Christopher J. Hoare, Esq.

In a recently issued 2014 trial court decision, Mitchell v. Metro North Commuter Rail, the Court delivered a double win to the railroad defendant in a lawsuit filed by a Metro North car shop mechanic who allegedly bumped his head while walking past a passenger car inside the maintenance shop. After reviewing the relevant FELA case law, the Court found that despite the FELA’s “relaxed causation standard,” the plaintiff’s expert had issued a net opinion and that plaintiff could not prove negligence because his injuries were not foreseeable to his railroad employer.

Plaintiff was a 50 year old sheet metal worker who was ordered to rewire the center sill of a Metro North commuter car that was parked inside the car shop’s maintenance pit for repairs.  Because he had never rewired a center sill before, he testified that he walked to the other end of the shop to see how the sill on a similar passenger car parked in the shop was wired.  Upon returning to his assigned car, he allegedly slipped on water on the floor of the maintenance shop that was allegedly leaking from a bathroom on the commuter car and bumped his head.  Plaintiff had not begun his assigned task prior to his alleged accident.  Four (4) days passed before plaintiff reported his unwitnessed accident to his supervisor.  He was complaining of head and neck pain at the time.

Plaintiff’s expert on railroad safety practices opined that:

  1. Metro North should have been aware that the toilet on the passenger car parked inside its shop was leaking;
  2. the toilet reservoir should have been drained outside the maintenance shop before it was pulled inside the shop for repairs, and
  3. plaintiff’s accident would not have occurred if he had been properly trained in wiring by his railroad employer.

The railroad defendant attacked the qualifications and opinion of the plaintiff’s liability expert by pointing out that he had not conducted any scientific studies, nor referenced any research to support his conclusory opinion, nor permitted its verification by the defendant (the classic definition of an inadmissible “net expert opinion” which is inadmissible under Federal Rules of Evidence and U.S. Supreme Court decisions).   Metro North also argued that the possibility that plaintiff would not have watched where he was walking before bumping his own head was not foreseeable.

In his opposition to Metro North’s Motion for Summary Judgment, plaintiff’s counsel relied on the FELA’s non-delegable duty to provide rail workers with a reasonably safe place to work and the “relatively relaxed standard of causation” between the railroad’s breach of its duty of care and damages under the FELA.

The court rejected both arguments and noted that plaintiff had not begun making his assigned repairs prior to his alleged injury.  It also noted that plaintiff had not made any complaints about the presence of toilet water on the floor of the shop prior to the accident.  It also held that although “negligence no matter how small” is the FELA standard of causation, the FELA still required the plaintiff to prove foreseeability of his injury by his railroad employer.  In a well worded opinion, the court barred the plaintiff’s expert as a net opinion and dismissed plaintiff’s case against his railroad employer without a trial.

This case illustrates that FELA lawsuits are absolutely defensible.  An effective defense of a FELA lawsuit begins with the consultation of an experienced FELA defense specialist who understands the law and can apply important defenses to the evidence.

Litgation Department Co-Chair Betsy G. Ramos Launches NJ Litigation Blog

Mt. Laurel, NJ — Capehart Scatchard Shareholder and Executive Committee Member Betsy G. Ramos, Esq. launched a new blog today, entitled the “New Jersey Litigation Blog.” Ms. Ramos, Co-Chair of the firm’s Litigation Department, will chronicle “significant liability litigation cases decided by the New Jersey courts.” Her first article, published earlier today, analyzes a case in which a New Jersey-based company attempts to sue a consultant it had employed who had been based in Illinois.

When Your Corporate Client is the Subject of an Inflammatory Closing Argument

(A Pennsylvania Perspective)

By: Scott M. Russ, Esq.

The Superior Court of Pennsylvania recently ruled that a plaintiff’s attorney’s inflammatory remarks during closing argument concerning a corporate defendant were not enough to warrant a new trial.

In the matter of Ferguson v. Morton, et.al. the Superior Court overturned a Philadelphia Court of Common Pleas Judge’s decision to grant a new trial to defendants, Derrick Morton and Philadelphia Cycle Center (“PCC”). The trial jury had awarded the plaintiff, Sheila Ferguson, $575,000 arising from an accident whereby she was struck by a motorcycle driven by defendant Morton.  Plaintiff also alleged that defendant was also negligent for having sold the motorcycle to Morton without verifying he had insurance or a valid driver’s license.  By way of damages, the plaintiff alleged multiple fractures with ongoing, chronic and permanent pain with limitation on her work hours.  During closing argument, the plaintiff’s attorney said: “If the defendants had been a tad bit careful back at the store, they never would have hurt Ferguson.  In essence, they are here carefully protecting their right to needlessly endanger the public.  Please tell them that in our community the safety of people is more important that the safety of money.”  The trial judge sustained almost every objection made by defendants’ counsel during plaintiff’s attorney’s closing argument, repeatedly admonished the plaintiff’s attorney, issued curative instructions to the jury and eventually cut off the closing argument entirely.  Subsequent to verdict, PCC claimed that during his closing argument, the plaintiff’s attorney “…was presenting improper matter and seeking to inflame the jury by focusing attention upon the fact that PCC was a corporate rather than individual defendant, and by repeatedly suggesting that PCC was concerned only with profits and not with the safety of the greater community.”  PCC argued that such statements encouraged the jury to incorporate punitive damages into the verdict when there was no claim for them and that the Judge’s curative instructions were otherwise ineffective.  The defendants requested, and were granted, a new trial as the presiding trial judge found that it would be impossible to conclude that the jury’s verdict did not wrongly include punitive damages.

On appeal, the Superior Court disagreed and overturned the trial judge’s decision to grant a new trial. In reaching its conclusion, the Superior Court found that the trial judge’s reasoning concerning the grant of a new trial was without legal authority and did not elaborate in any way on such in-court observations that the court may have made.  The Superior Court further noted that the damages verdict “only minimally” surpassed the cap for claimed economic damages asserted during the trial and that the jury was otherwise within its purview to award non-economic damages as well.  Finally, in noting that the jury apportioned liability equally between Morton and PCC, the Court stated “that the jury apportioned liability equally implies that the jurors did not calibrate their award in magnitude or apportionment to punish PCC.”  The Court concluded as follows:  “While we deplore Holland’s [plaintiff’s counsel] intractability in flouting the trial court’s clear directions, we nonetheless disagree that the remarks in question so obviously compromised the jury’s deliberations as to establish a basis for the grant of a new trial.”

To avoid a similar scenario in the future, in advance of, and during, civil trial a corporate defendant in Pennsylvania should ensure that its defense counsel submits appropriate jury charges and a proposed verdict sheet, create a proper record during the trial and closing arguments, object often, ensure that corrective charges are given to the jury (as necessary) and after verdict, poll the jury to ascertain if it was in any way unduly influenced by an improper closing statement similar to that above.  Such preventative measures will assist a corporate defendant in avoiding another unfortunate and expensive outcome such as in the Ferguson case.

Construction Accident Cases and the New York Labor Law

(A New York Perspective)

By: Joseph R. Zakhary, Esq.

New York State contains some of the most beautiful, if not awe-inspiring, urban landscapes on earth.  Many impressive structures are located in New York City, a place where there is usually some type of construction activity occurring on any given day of the year.  Simple upkeep of the Big Apple’s cityscape requires thousands of workers to repair, alter, maintain, and clean those buildings.  So much construction-related work, however, poses significant risks to the workers involved in those projects.  According to the New York City Department of Buildings (“NYC DOB”), there were 157 construction accidents in 2010; 128 construction accidents in 2011; and 175 construction accidents in 2012.  In recognition of these realities, the New York legislature has included in its Labor Law three sections within Article 10 (Building Construction, Demolition and Repair Work) that are generally applicable to construction accident litigation: §200, §241(6) and §240(1).  All personal injury attorneys who practice in New York should be familiar with these sections of the Labor Law.

Section 200 is merely a statutory codification of the common law relating to negligence actions.  Accordingly, §200 provides that all construction industry employers have a duty to provide reasonably safe workplace environments by properly maintaining, guarding, and lighting the worksite, as well as properly operating all worksite machinery and equipment.  Just like the common law, if the owner or general contractor did not create the dangerous condition, then the employer must have had actual or constructive notice of it. Similarly, the plaintiff’s comparative negligence can reduce the construction employer’s percentage of liability.  In addition, an owner/general contractor will not be liable if it had no authority to control the working “means and methods” of the activity that caused the accident. Therefore, a subcontractor’s negligent actions will not necessarily be attributable to the owner/general contractor.

Section 241, the Safe Place to Work Law, imposes vicarious liability upon owners/general contractors for the negligence of their general/sub-contractors.  To prevail under §241(6), a plaintiff must prove a violation of the Industrial Code, contained within Title 12 of New York Codes, Rules and Regulations (“NYCRR”). Otherwise, the claim would more properly be brought under §200. Two common Industrial Code violations that have been judicially determined sufficient to support a §241(6) claim are those relating to jobsite cleanliness and adequate illumination.

Of the three Labor Law Sections applicable to construction personal injury actions, §240, also known as the Scaffolding Law, is by far the most onerous to owners/general contractors, and descends from New York’s first dangerous-heights law, which was enacted in 1885.  That law imposes strict liability upon owners/general contractor’s for any injury resulting from an elevation-related hazard while working on a structure.  New York’s  highest court has broadly defined a “structure” to include “any production or piece of work artificially built up or composed of parts joined together in some definite manner.” Lombardi v. Stout, 80 NY 2d 290 (1992).  Section 240(1) provides:

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers…and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. Labor Law §240(1).

Significantly, a plaintiff’s damages cannot be reduced by their comparative negligence, so §240(1) imposes absolute liability.

It is important to note that §240(1) applies to all gravity-related risks associated with the section’s covered activities, and therefore applies to situations when workers are injured by falling objects and collapsed scaffolding.  In addition, alterations to a “structure” includes work on fixtures to those structures, such as work on an electrical sign, and replacing a camera surveillance system. See Izrailev v. Ficarra Furniture of Long Island, Inc., 70 NY 2d 813 (1987) and Guzman v. Gumley-Haft, Inc., 274 AD 2d 555 (2nd Dept. 2000).

There are only two defenses to §240(1) actions: proximate cause and the recalcitrant worker doctrine. For §240(1) to apply, not only must there be a statutory violation, but the worker’s injuries must have been proximately caused by that violation. See Blake v. Neighborhood Housing Service of NYC, 1 NY 3d 280 (2003).  In addition, a “recalcitrant worker” who refuses to avail himself of safety equipment which has been provided is not entitled to statutory protection.  In 2004, New York’s highest court examined the “recalcitrant worker” defense, and held that “[t]he controlling question…is not whether plaintiff was ‘recalcitrant,’ but whether a jury could have found that his own conduct, rather than any violation of Labor Law §230(1), was the sole proximate cause of the accident.” Cahill v. Triborough Bridge & Tunnel Authority, 4 NY 3d 35, 39 (2004).

In the end, owners and contractors face significant liability for construction site injuries and should be aware of the potential exposure.

Defending Claims for Lost Future Income by Undocumented Workers

(A New Jersey Perspective)

By: Christopher J. Hoare, Esq.

Increasingly, defense clients are encountering lawsuits for personal injuries by workers or other plaintiffs who are not citizens of the United States.  As undocumented workers come out of the shadows in the U.S., they are comprising a growing percentage of the U.S. construction labor force.   Resident aliens who are injured in the course and scope of their employment are eligible to collect State Workers’ Compensation benefits even though those workers are often paid in cash.   The fact that an injured worker is not a U.S. citizen, because he or she overstayed a temporary work visa, will not affect his or her rights to Workers’ Compensation benefits under the law.


The following affirmative defenses must be asserted in the Answer to plaintiff’s Complaint in order to preserve key defenses to loss of income claims asserted by undocumented workers in personal injury lawsuits:

  1. Plaintiff’s claims are barred or reduced by operation of the State Workers’ Compensation Act;
  2. Plaintiff’s claims are barred by the doctrines of res judicata and collateral estoppel;
  3. Plaintiff’s claims are barred by reason of his/her immigration status pursuant to the Immigration Reform and Conservation Act (“IRCA”); and
  4. Plaintiff’s claims are barred by operation of the doctrine of judicial estoppel and claim preclusion.


Plaintiff’s counsel will often attempt to proceed to trial on the expectation that his client will be permitted to testify as to how much he made each week and the jury will be invited to calculate his future loss of earning capacity based on that gross figure.  That is improper under New Jersey Supreme Court and Appellate Division case law.

Although New Jersey’s appellate decisions are currently unsettled, the trend in judicial holdings on the issue is to allow undocumented workers to assert claims for future loss of earning capacity in suits involving personal injuries.  However, the plaintiff clearly has the burden of proving his net income as well as the value of his pre-accident earning capacity in the currency used in his foreign country.  Invariably, plaintiff will need an economic expert and evidence establishing his pre-accident net wages, such as tax returns or paystubs, in order to survive a motion for partial summary judgment and to preclude a claim for future loss of earning capacity.  If plaintiff is not able to produce copies of his filed federal and state tax returns, or doesn’t retain an economic expert, the New Jersey Supreme Court has held that his claim for future loss of earnings cannot be submitted to the jury.

Most undocumented workers do not have a valid Social Security number to file taxes.  Therefore, it is important during deposition of plaintiffs to determine several important economic measures:

  1. How much the plaintiff made in his native country before moving to the U.S.;
  2. Whether or not he has a valid driver’s license in any state in the U.S.;
  3. The  monetary unit of his country of origin; and
  4. Whether or not his employer realized that plaintiff was an illegal worker at the time he was hired.

The worst case scenario for a plaintiff is that he has never filed tax returns and when he was hired by the employer, he showed them a green card which was valid at the time but has since expired.  If this is proven through proper discovery techniques, a motion for partial summary judgment to dismiss plaintiff’s claim for future loss of earning capacity will most likely be granted under New Jersey appellate case law.  In addition, motions in limine to preclude plaintiff from presenting evidence of future loss of earning capacity at trial will most likely worry the plaintiff sufficiently to settle any case before trial.


When it comes to defending an injured worker’s future loss of earning capacity, the most important document in the plaintiff’s worker’s compensation file is the Order Approving Settlement of the permanent partial disability award.  The Order is usually signed by plaintiff, his counsel in the compensation case, and the administrative law judge who heard testimony on the day of the settlement.  There is also a transcription of the proceeding which you should be sure to obtain.  The Order will contain important information that is admissible and binding in your liability case, including:

  1. List and detailed description of compensable injuries and injured body parts;
  2. Percentages of permanent disability for the injured body parts and the total body; and
  3. Weekly wages and award information.

The Order is admissible as an exception to the hearsay rules on a number of grounds and the effect of the findings by the Judge in Workers’ Compensation is binding on plaintiff in the liability case.  Plaintiff is judicially estopped from asserting any claims for additional or more extensive injuries in the liability case than were enumerated and quantified in the Order.


If plaintiff has never filed tax returns or does not present sufficient economic expert opinion testimony to carry his burden of proof on future income losses, he cannot present future loss of earning claims at trial.  Even if he does, it is still possible to prove that plaintiff’s continued employment in the United States labor force is far from certain.  Proper cross-examination of plaintiff’s economist and vocational experts can demonstrate to the jury just how speculative future employability is for an undocumented worker under United States immigration laws such as the IRCA.

If plaintiff’s economic expert, however, fails to properly calculate the value of plaintiff’s earning capacity in the currency of his native country, it is possible to limit or preclude the economic expert’s testimony on this point by motions in limine.  Once the jury understands that plaintiff is an illegal alien, they are still free to decide that plaintiff could be deported to his native country at any time and that all claims for future income in the United States are simply too speculative to award.  In that case, the real measure of plaintiff’s damages is the actual value of plaintiff’s future loss of earning capacity calculated in the currency of his native country.

Remember:  the reason the undocumented worker has moved to the United States is for increased employment opportunities and pay.


Claims for future loss of earning capacity tend to comprise the biggest single component in accidents resulting in permanent injuries.  Claims by injured undocumented workers can be defended effectively if the above steps are followed.

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