Questions About Immigration Status Are Off Limits in Personal Injury Cases

In 2016 California passed AB 2159, which vastly improves access to justice for personal injury and wrongful death plaintiffs who are undocumented. Codified as Evidence Code sections 351.2, the law states: “In a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.”

Prior to the enactment of this law, plaintiffs in personal injury or wrongful death cases had fewer, clumsier tools such as relevance objections and pretrial motions at their disposal to fend off defense inquiries into their immigration status. Section 351.2, by contrast, provides a bright-line rule that prohibits opposing counsel from even asking about the plaintiff’s immigration status, whether in written discovery, deposition, or at trial. This should not only reassure an undocumented plaintiff who is nervous about pursuing her or his claim through trial for fear of being “outed” as undocumented, but should also increase the potential for such a plaintiff to prove lost wages, in terms of both past and future lost earnings and the loss of future earning potential.

Incredibly, despite this being an unambiguous law and in effect for several years now, certain insurance defense counsel either are unfamiliar with it or feign ignorance. A Janssen Malloy attorney recently had to educate, in the middle of a plaintiff-client’s deposition, opposing counsel on this four-plus-year-old law. This incident highlights how important it is to be represented by an attorney who is experienced and knowledgeable in personal injury or wrongful death.