Opinion
Civil Action No. 01-1241-JTM
November 4, 2003
MEMORANDUM AND ORDER
This matter comes before the court on defendants Pedro Gonzalez, Jas Dale and Gail Dale's [defendants] motion to strike (Dkt. No. 76) and the defendants' motion for summary judgment (Dkt. No. 71). The motions are briefed and ripe for disposition. For the reasons stated below, the court grants the defendants' motion to strike and grants in part and denies in part the defendants' motion for summary judgment
I. Background
The plaintiffs bring this negligence case for personal injuries resulting from a motor vehicle accident invoving two separate collisions which occurred on July 29, 1999. The plaintiffs were passengers in a 1984 van driven by Andres Perez which ran into the rear of a 1993 Freightliner semi tractor-trailer rig driven by Paul Hernandez on U.S. 160 highway in Stanton County, Kansas. The disabled Ford van remained on the highway as the semi tractor-trailer continued off of the roadway and into the ditch. Subsequently a 1991 GMC Safari van driven by Pedro Gonzales and owned by Jas Dale hit the 1984 Ford van on the same highway. A more detailed statement follows.
II. Motion to Strike
The defendants request that the court strike the affidavits of Benito Hernandez-Cortez and Bonafacio Hernandez attached to the plaintiffs' response to the defendants' motion for summary judgment. The defendants argue that the plaintiffs have filed fraudulent affidavits, as the affidavits contradict plaintiffs' sworn deposition testimony.
In their depositions, both Benito Hernandez-Cortez and Bonafacio Hernandez testified that they paid one person to smuggle them into the United States and to transport them to North Carolina; that person was the driver of the van that was transporting them to North Carolina; neither party knew the name of the driver; they paid the driver half their money upon entry into the United States; he was to be paid the final half of the money when they obtained employment in North Carolina. The parties have stipulated that the driver of the van was Andres Perez. (Pre-trial order at ¶ 4(a)(13)). Diane Barger and Randall E. Fischer represented Benito Hernandez-Cortez at his deposition on July 9, 2002. He was given an opportunity to correct his deposition; no corrections were made. Ms. Barger also represented Bonafacio Hernandez at his deposition on July 9, 2002. He, too, was given an opportunity to correct his deposition; no corrections were made.
After defendants filed their summary judgment motion, the plaintiffs filed affidavits stating that while they did pay someone to smuggle them into the United States, it was not the driver of the van transporting them to North Carolina; they met the driver of the van after their arrival in Arizona.
The Tenth Circuit discussed conflicts between affidavits and an affiant's prior sworn statement, in Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (citations omitted), stating "in assessing a conflict under these circumstances . . . courts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue." The Franks court provided the following standards to evaluate such conflicts:
Factors relevant to the existence of a sham fact issue include whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain.Id. at 1237 (citations omitted).
Applying the factors outlined in Franks, the court concludes that the affidavits attached to plaintiffs' response must be disregarded The testimony provided by the plaintiffs in their depositions plainly contradicts the statements in their affidavits. The plaintiffs were cross-examined during their earlier testimony. They had access to the pertinent evidence at the time of their testimony. The plaintiffs were represented at their depositions; given an opportunity to make corrections to their testimony; no corrections were made. Further, the plaintiffs make no attempt to explain the contradictions between their affidavits and their earlier sworn testimony.
Accordingly, the court grants the defendants motion to strike (Dkt. No 76). The court strikes those portions of the plaintiffs' affidavits that contradict the sworn testimony of the plaintiffs in their depositions, i.e., paragraphs 2 and 5 of Benito Hernandez-Cortez's affidavit and paragraphs 2 and 4 of Bonafacio Hernandez's affidavit. In considering the defendants' motion for summary judgment, the court will disregard any of the plaintiff's arguments based on these paragraphs of the affidavits. The court notes that while the plaintiffs' depositions and affidavits state that they do not know who was driving the van at the time of the accident, the parties stipulated that the driver at the time of the accident was Andres Perez.
III. Motion for Summary Judgment
A. Statement of Facts
Both Benito Hernandez-Cortez and Bonafacio Hernandez are citizens of the Republic of Mexico illegally residing in the United States. Benito Hernandez-Cortez is subject to deportation by the United States Citizenship and Immigration Services (formerly the Immigration and Naturalization Service) at any time. However, the plaintiffs assert that Benito Hernandez-Cortez was picked up by Immigration and Naturalization Service officials in 2000, questioned and released to continue living here in the United States. Thus, they assert it is highly likely that Benito Hemandez-Cortez will receive a stay of any deportation proceedings due to extreme hardship based on his necessity for continuing medical treatment. Bonafacio Hernandez is subject to deportation at any time.
Andres Perez was driving a 1984 Ford van owned by James Louis Werner at the time of the accident. All acts of Andres Perez were performed while in the course and scope of his employment with the defendant James Louis Werner, and James Louis Werner is vicariously liable for the negligence or otherwise culpable acts of Andres Perez.
Benito Hernandez-Cortez has no valid resident alien card or other authorization issued by any agency of the United States of America authorizing him to remain in the United States. Benito Hernandez-Cortez is not registered as a participant in the Social Security system and is not eligible for Social Security benefits. Benito Hernandez-Cortez, as an illegal alien, is not authorized to work in the United States.
As noted above, on July 29, 1999, the 1984 Ford van driven by Andres Perez ran into the rear of a 1993 Freightliner semi-tractor/trailer driven by Paul J. Hernandez on U.S. 160 in Stanton County, Kansas. Following the collision with the 1993 Freightliner, the semi-tractor/trailer continued southeast eighty feet into the ditch. The 1984 Ford van driven by Andres Perez remained on the roadway of U.S. 160 Mowing the first collision. It was then hit by a 1991 GMC Safari van.
Benito Hernandez-Cortez felt a pop in his back and almost unbearable pain as a result of the initial collision. He suffered a burst fracture of T-12 and underwent an open reduction and posterior spinal fusion on July 31, 2000. The surgery on Benito Hernandez-Cortez's back was performed in the place where he felt the pain after the 1984 van hit the semi-tractor/trailer.
Dr. Jane Drazek, the plaintiff's sole medical expert, had no knowledge of the severity of the collisions or when in the course of those collisions Benito Hernandez-Cortez suffered his burst fracture. Dr. Jane Drazek is of the opinion, within a reasonable degree of medical certainty, that no one can determine the exact severity of the back injury that Benito Hernandez-Cortez suffered during the first impact when he experienced significant pain and popping sensation at the time the van in which he was a passenger collided with the 1993 Freightliner tractor/trailer. In addition to the T-12 fracture Benito Hernandez-Cortez suffered a fracture dislocation left mid foot, fracture of the talar head, navicular body, cuboid and base of fifth metatarsal, left tibia-fibular fracture comminuted.
Plaintiff Hernandez-Cortez is claiming past economic loss of $29,363.00 and future economic loss of $466,188.00. The plaintiff's economic loss figures were obtained from the calculations of the plaintiff's expert economist, Dr. Gary Baker. Dr. Baker did not consider in his calculations the fact that Benito Hernandez-Cortez is an illegal alien. Dr. Baker is not familiar with the labor participation rate or the unemployment rate illegal aliens. Dr. Baker calculated past and future loss of social security benefits to Benito Hernandez-Cortez, although he does not know if illegal aliens are entitled to social security benefits. Plaintiff Hernandez-Cortez acknowledges that he is not registered as a participant in the social security system and is not eligible for social security benefits.
Benito Hernandez-Cortez, Bonafacio Hernandez, and Fermin Morales were smuggled together, illegally, into the United States. They were charged $1,200.00 each. They paid $700.00 to be brought into the United States and were to pay the remaining $500.00 upon being transported to North Carolina and starting their employment there. They entered the United States illegally on July 15, 1999, by traveling across the desert and crossing into the U.S. Once in Arizona, Hernandez-Cortez, Hernandez, and Morales began to seek the name of someone who could help them find jobs in the United States.
Benito Hernandez-Cortez and Bonafacio Hernandez were passengers in the 1984 Ford van Perez was driving at the time of the collision. The plaintiffs paid the money to the driver of their van as part of the charge to smuggle them into the United States and take them to get jobs.
Benito Hernandez-Cortez lived at 1515 Vassar, Wichita, Kansas, in 2000. Immigration and Naturalization Service (INS) raided the house and took Benito Hernandez-Cortez to the INS office for questioning. Benito Hernandez-Cortez and Bonafacio Hernandez have not been charged or convicted of any crimes in the United States or in Mexico.
Plaintiff Bonafacio Hernandez was employed at the Red Mesa Grill on 21st Street, Wichita, Kansas, for about 1-½ years and is currently employed at Glickman.
Plaintiff Benito Hernandez-Cortez alleges that he is not able to receive the necessary and adequate continuing medical care and treatment in Mexico that is required for his neurogenic bladder and bowel dysfunction, which are some of the injuries he received in the accident. He also alleges that returning to Mexico to live would be an extreme hardship as the necessary and advanced adequate medical treatment is available only in the United States.
B. Standard
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgments as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all of the evidence in a light most favorable to the opposing party. Jurasek v. Utah State Hasp., 158 F.3d 506, 510 (10th Cir. 1998). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Baker v. Board of Regents, 991 F.2d 628, 630 (10th Cir. 1993). The moving party need not disprove the nonmoving party's claim or defense; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
The party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). The opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the opposing party must present significant admissible probative evidence supporting that party's allegations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
C. Analysis
First, the defendants argue that any negligence of the driver of the van, Andres Perez, should be imputed to the plaintiffs as they were engaged in unlawful conduct. The defendants cite American Family Mutual Insurance Co. v. Grim, 201 Kan. 340, 345 (1968) which holds that "one who aids, abets and encourages other in the commission of an unlawful act is guilty as a principal, and all are jointly and severally liable in a civil action for any damages that may have resulted from their act." (citations omitted). The defendants also cite Vetter v. Morgan, 22 Kan. App. 2d 1 (1995), where the court considered whether the defendant, as a passenger in a car, could be held liable when the driver swerved at another vehicle. The plaintiff argued that the defendant and the driver had a common goal of harassing and frightening her. The Vetter court overturned the trial court's ruling for the defendant stating, in part:
Under Kansas law, § 876 of the Restatement corresponds to the theories of civil conspiracy and aiding and abetting. Civil conspiracy has five elements: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds in the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof. When all elements are present, any act done by a member of the conspiracy in furtherance of the common object and in accordance with the general plan becomes the act of all, and each conspirator is responsible for the act.Id. at 8. (citations omitted).
The plaintiffs contend that their only unlawful activity was entering the United States in violation of 8 U.S.C. § 1302. The plaintiffs further argue that they were not jointly engaged in any type of criminal conspiracy or criminal activity with Andres Perez. However, the court finds the plaintiffs' argument to be without merit. The plaintiffs concede that Andres Perez was acting in violation of 8 U.S.C. § 1324 by transporting illegal aliens. Yet the plaintiffs fail to acknowledge that § 1324(a)(1)(A)(v)(I) makes it a violation to engage in a conspiracy to transport illegal aliens. The plaintiffs concede that they were in the country illegally, they paid Andres Perez to transport them, and that Perez was in violation of the law. Thus, the plaintiffs fail to show that they were not engaged in a conspiracy with Perez.
Furthermore, the plaintiffs fail to distinguish their case from Grim and Vetter. The plaintiffs argue they possessed no control over Andres Perez or the van, but this is not determinative of the imputed negligence issue. The Grim court rejected a similar argument from a defendant who participated in the illegal entry of a church, in order to get some "Cokes." 201 Kan. at 341. Two of the defendant's companions accidentally set the church on fire. Id. at 342. The court held the defendant liable although he knew nothing about his companion's use of torches in the church, the group did not discuss this as part of the "plan," and the defendant was in a different area of the church at the time. Id. at 344-45. In other words, the defendant possessed no control over his companions or the fire. However, the defendant was liable for the damage because of his participation in the illegal entry of the church. Id. at 346. Here, the plaintiffs participated with Perez in a common plan to transport illegal aliens; they did not disavow themselves from the plan nor were they innocent passengers. Participants in a conspiracy "are answerable for any injury done by any one of them, although the damage done was greater than was foreseen, or the particular act done was not contemplated or intended by them." Id. at 345 (citations omitted).
Accordingly, the court finds that any negligence of the driver of the van, Andres Perez, should be imputed to the plaintiffs.
Secondly, the defendants argue that Benito Hernandez-Cortez's status as an illegal alien precludes his recovery for lost income based on projected earnings in the United States. They also challenge the calculations made by Benito Hernandez-Cortez's expert economist, Dr. Gary Baker alleging that Dr. Baker based his calculations on Benito Hernandez-Cortez's life expectancy and his projected future earnings in the United States, while neglecting to take into account crucial factors regarding Hernandez-Cortez's status.
The defendants base their argument on 8 U.S.C. § 1324a which makes employment of unauthorized aliens illegal and Hoffman Plastic Compounds v. National Labor Relations Board, 535 U.S. 137 (2002) finding that an NLRB award of backpay to an illegal alien was unauthorized. The Hoffman court stated, in part:
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. . . . We therefore conclude that allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.Id. at 148, 151. The defendants also cite Garay v. Missouri Pacific R. Co., 60 F. Supp.2d 1168, 1173 (D. Kan. 1999) where the court found that an economic expert's failure to consider the decedent's status as an illegal immigrant "render[ed] his opinion as to future lost wages wholly unreliable."
Benito Hernandez-Cortez argues that Hoffman does not prevent undocumented employees from recovering unpaid wages for work actually performed nor does it prevent such employees from recovering traditional remedies. Benito Hernandez-Cortez is correct in his contention regarding remedies for work already performed. Flares v. Amigon, 233 F. Supp.2d 462, 463 (E.D.N.Y. 2002) (detailing cases finding that Hoffman is not extended when "the plaintiffs had already performed the work for which unpaid wages were being sought"). However, the court finds that this argument is not applicable to Benito Hernandez-Cortez's case as he is seeking damages based on projected earnings rather than work already performed. The court is unwilling to extend the reasoning described in Flores to projected earnings.
Benito Hernandez-Cortez also cites Singh v. Jutla C.D. R's Oil, Inc., 214 F. Supp.2d 1056, 1060-61 (N.D.Cal., 2002) where the court disregarded the defendant's argument that an undocumented employee was not entitled to any recovery under the Fair Labor Standards Act as a result of Hoffman. The court also finds that Singh is not applicable to this case, as the defendants are not seeking to block Benito Hernandez-Cortez's entire recovery. In fact, the defendants acknowledge "plaintiffs are entitled to recover from the persons responsible for the physical injuries they sustain and for any impact on their ability to generate income in their country of origin directly attributable to the injury."
Benito Hernandez-Cortez also argues that the rationale underlying Garay is incorrect. Considering the current state of the work force, the plaintiff contends that his status as an illegal alien will not necessarily preclude him from employment. The court notes that while many illegal aliens do find employment in the United States, this argument does not overcome § 1324a and Hoffman.
Benito Hernandez-Cortez also argues that it is likely that he will not be deported because he may qualify for a stay due to extreme hardship based on his medical problems. He notes that he was questioned by INS officials in 2000 and was released to continue living in the United States. However, the court finds this argument to be without merit. There is no showing that the plaintiff has attained permanent residency status. Furthermore, a waiver based on extreme hardship requires a showing that the alien is a spouse, son or daughter of a United States citizen or another alien with permanent residency status and that they will experience extreme hardship if the alien in question is not admitted. 8 U.S.C. § 1182.
Extreme hardship exceptions also exist under the Nicaraguan Adjustment and Central America Relief Act of 1997, such exceptions would not apply in this case.
Accordingly, the court finds that Benito Hernandez-Cortez's status as an illegal alien precludes his recovery for lost income based on projected earnings in the United States.
Plaintiff may pursue the claims detailed in the pre-trial order (Dkt. No. 74), which are not inconsistent with this ruling.
Finally, the defendants argue that the claims of Benito Hernandez-Cortez against defendants Gonzalez and Dale should be dismissed for lack of causation. The defendants contend that Benito Hernandez-Cortez testified that the substantial injuries he sustained occurred in the first collision. Defendants' experts, Dr. Alfred T. Boles and Dr. Paul F. Stein, opined that plaintiff Hernandez-Cortez's spine and lower left extremity fractures occurred in the first collision.
Benito Hernandez-Cortez has testified that after the first collision he felt pain in his back and legs, but not that he felt pain in his left ankle or foot. He argues that there is inadequate evidence to establish that his left ankle and foot fractures occurred as a result of the first collision; he contends that causation of these injuries is a question for the jury. His medical expert, Dr. Jane Drazek, opined that one can not determine the exact severity of Benito Hernandez-Cortez's T-12 injury at the time of the first collision. The plaintiffs also request that the court strike the opinions of Richard K. Thompson, Dr. Alfred T. Boles, and Dr. Paul Stein and any references thereto, because the defendants did not attach affidavits to their motion. The defendants subsequently attached these affidavits in their reply and the court finds no prejudice to the plaintiffs.
Examining the evidence in the light most favorable to Benito Hernandez-Cortez, the court finds that he has raised sufficient material facts to pursue his claims for injuries and related damages against the defendants.
Based on the aforementioned, the court grants in part and denies in part the defendants' motion for summary judgment. Accordingly, any negligence of the driver of the van, Andres Perez, will be imputed to the plaintiffs; plaintiff Hernandez-Cortez may not recover lost income based on his projected earnings in the United States; plaintiff Hernandez-Cortez may pursue his claims for injuries and related damages against the defendants.
IT IS, THEREFORE, BY THE COURT, ORDERED this 4th day of November, 2003 that the court grants the defendants' motion to strike (Dkt. No. 76) and grants in part and denies in part the defendants' motion for summary judgment (Dkt. No. 71).