ALETA A. TRAUGER, District Judge.
Pending before the court is a Motion for Partial Summary Judgment (Docket No. 271) filed by the defendant, Will Johnson, to which the plaintiff, Jose Osmin Calderon Pacheco, has filed a Response in opposition (Docket No. 290), and the defendant has filed a Reply (Docket No. 299). The defendant has also filed a Motion to Exclude the Affidavit of Dr. John Ward. (Docket No. 301.) For the reasons discussed herein, the Motion for Partial Summary Judgment and the Motion to Exclude the Affidavit of Dr. John Ward will both be granted.
This civil rights action arises from an altercation between the plaintiff and the defendant that took place in March of 2010 and resulted in severe injuries to the plaintiff. The plaintiff seeks, among other damages, lost future earnings based on the allegations that his injuries have left him paralyzed and unable to work. It is undisputed that, at the time of the incident giving rise to this action, the plaintiff, who immigrated to the United States from El Salvador in 2000, was not legally authorized to work in the United States. Due to criminal convictions, the United States Citizenship and Immigration Services had revoked the plaintiff's Temporary Protected Status ("TPS") and authorization to work in the United States between October and November of 2008. Further, there is no evidence in the record to support a finding that the plaintiff's status might ever change with respect to his authorization to legally work in the United States.
On February 21, 2017, the court issued a Memorandum and Order addressing several motions in limine filed by the defendant, including a request to exclude all evidence related to the plaintiff's lost future earnings on the ground that the plaintiff is not authorized to work in the United States, pursuant to the Immigration Reform and Control Act ("IRCA"). (Docket No. 262.) The Order reopened discovery into the issue of the plaintiff's current immigration status and capacity to work in the United States. By this Order, the court also allowed the plaintiff to supplement the record regarding his estimated lost future wages to include 1) information about his immigration status and 2) an estimate of lost future earnings if he were working in El Salvador rather than the United States. Finally, the court ordered that any objections by the defense to the sufficiency of the plaintiff's claim for lost future earnings should be addressed by motion for summary judgment.
On June 5, 2017, the defendant filed the instant Motion for Partial Summary Judgement on the plaintiff's claim for lost future earnings (Docket No. 270), along with a Memorandum in support (Docket No. 271), a Statement of Undisputed Material Facts (Docket No. 272), and a number of exhibits (Docket Nos. 275-278). By this motion, the defendant renews his argument that the plaintiff cannot make a claim for lost future earnings based on employment in the United States, due to his immigration status. The defendant also argues that the plaintiff has failed to make a claim for lost future earnings based on his lost capacity to work in El Salvador because he has not met his burden of providing an estimate for what those wages would be. In particular, the defendant challenges the admissibility of the opinions of plaintiff's expert, Robert Vance of Forensic & Valuation Services, PLC, with respect to the plaintiff's future lost earning capacity in El Salvador.
Indeed, the only evidence in the record to support the plaintiff's claim for lost future wages based on his earning capacity in El Salvador is found in a revised version of Mr. Vance's expert report, dated April 3, 2017.
Mr. Vance, however, has made no effort to ascertain the wages that would have been available to the plaintiff as a worker in El Salvador.
On June 22, 2017, the plaintiff filed a Response to the defendant's Motion for Partial Summary Judgment (Docket No. 290), along with a Memorandum in support (Docket No. 291), a Response to the defendant's Statement of Undisputed Material Facts (Docket No. 292), and a number of additional exhibits (Docket No. 293). Attached to the plaintiff's Memorandum is the Affidavit of Claudia Maria Valenzuela Diaz, Consul General of El Salvador in the state of Georgia, which states that El Salvador does not maintain statistics as to the specific earnings rates for skilled workers. (Docket No. 291-1.) Also attached to the plaintiff's Response is the Affidavit of John O. Ward, Ph.D., explaining that a PPP conversion is the proper methodology to be used to determine a damages award for a foreign national and stating that Mr. Vance applied the PPP conversion correctly to his calculation of the plaintiff's damages, based on earnings in the United States. (Docket No. 291-2.) Dr. Ward does not address the question of whether Mr. Vance's report calculates the plaintiff's lost earning capacity based on his lost ability to work in El Salvador.
On June 27, 2017, the defendant filed a Reply (Docket No. 299), along with exhibits (Docket No. 300). Also on June 27, 2017, the defendant filed a Motion to Exclude the Affidavit of Dr. John Ward, arguing that it is a late-filed expert report that is not admissible under Rule 56(c)(4). (Docket No. 301.)
Rule 56 requires the court to grant a motion for summary judgment, if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). If a moving defendant shows that there is no genuine issue of material fact as to at least one essential element of the plaintiff's claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings, "set[ting] forth specific facts showing that there is a genuine issue for trial." Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "In evaluating the evidence, the court must draw all inferences in the light most favorable to the non-moving party." Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
At this stage, "`the judge's function is not . . . to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But "[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient," and the party's proof must be more than "merely colorable." Anderson v. Liberty Lobby, 477 U.S. 242, 249, 252 (1986). An issue of fact is "genuine" only if a reasonable jury could find for the non-moving party. Moldowan, 578 F.3d at 374 (citing Anderson, 477 U.S. at 252).
In 2002, the Supreme Court ruled that an undocumented plaintiff could not recover back pay from the National Labor Relations Board because he had not been authorized to legally work in the United States and, therefore, his employment would have been in violation of the IRCA. Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137, 148-49 (2002) ("Under the IRCA regime it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies."). The question at the heart of the instant dispute is whether Hoffman should be interpreted to generally preclude the recovery of lost wages based on earning capacity in the United States by a plaintiff who is not legally authorized to work in this country. While it appears that the Sixth Circuit has not issued an opinion addressing this matter, the court is persuaded by the Supreme Court decision in Hoffman that allowing the plaintiff to recover for lost future wages that could have been earned in the United States would violate public policy and run counter to established law.
While the court would be inclined to follow the Second Circuit decision in Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219 (2d Cir. 2006), cited by the plaintiff, the holding in Madeira does not change the outcome in this action. Madeira expressly states that recovery of lost wages by an undocumented plaintiff should not be precluded in the limited instance where the defendant is the plaintiffs' employer and knowingly violated the IRCA in hiring the plaintiff. 469 F.3d at 228.
Accordingly, the court finds that the plaintiff may not recover from the defendant lost future earnings based on wages he would have earned in the United States, due to his lack of authorization to legally work in the United States at the time of the incident giving rise to this action or any time thereafter.
Next, the court considers whether the plaintiff may, in fact, proceed with his claim for lost future wages based on earning capacity in El Salvador, given the evidence in the record. The only evidence the plaintiff points to in support of such a claim is the revised expert report of Mr. Vance.
The plaintiff and Mr. Vance appear to have blatantly misunderstood the court's directives with respect to procuring evidence of the plaintiff's future lost earning capacity, in the event that he were working in El Salvador rather than in the United States. The issue is not whether the plaintiff will ultimately be deported. Rather, the question is what would have been the plaintiff's capacity to earn future wages in El Salvador, were he not stripped of such capacity at the time of the injury giving rise to this litigation. It further appears that Mr. Vance misinterpreted and misapplied the very methodology he claims to have relied on from the Bowles Article. Only once damages based on earning capacity in another country are established in a foreign currency does the Bowles Article suggest that a PPP conversion should be done to establish the equivalent amount of damages recoverable in U.S. dollars. Mr. Vance inverted this methodology to come up with an amount of damages based on his calculation of the plaintiff's earning capacity working legally as a welder in the United States. Mr. Vance made absolutely no attempt to establish the plaintiff's lost earning capacity in El Salvador. The fact that the government of El Salvador does not maintain information about wages neither forecloses the ability of the plaintiff to gather evidence establishing typical wages in El Salvador from other sources, nor shields the plaintiff from the obligation to do so in order to maintain his claim. Accordingly, the court finds that the plaintiff has failed to put forth a sufficient claim of lost earning capacity in El Salvador.
Finally, even if the court were to consider the Affidavit of Dr. Ward, it offers nothing that would bolster the admissibility of Mr. Vance's opinion about future lost wages or that would save the plaintiff's claim for such future lost wages. The court has already found that Mr. Vance does not offer a relevant opinion on the plaintiff's lost earning capacity in El Salvador, and the Ward Affidavit does not say anything to the contrary. Accordingly, the court finds that the Ward Affidavit, which has been proffered for the sole purpose of reinforcing the inadmissible opinions of Dr. Vance, is itself inadmissible because it is irrelevant. Accordingly, the Motion to Exclude the Ward Affidavit will be granted.
Because the plaintiff is not entitled to recover lost future wages based in his earning capacity in the United States, and because he has not made a sufficient claim for lost future wages based on his earning capacity in El Salvador, his claim for lost future wages may not proceed.
For the foregoing reasons, the defendant's Motion for Partial Summary Judgment and Motion to Exclude to Affidavit of Dr. John Ward are hereby
It is so