Metzger Diacetyl Defense Verdict Overturned on Appeal


The Metzger Law Group recently found favor with the California Court of Appeals when the Court reversed a defense verdict in a diacetyl case,Velasquez v. Centrome, Inc. (Court of Appeal of California, Second Appellate District, Division Eight; January 30, 2015, Opinion Filed; B247080.) There, Plaintiff, Wilfredo Velasquez, alleged his bronchiolitis obliterans, a rare and progressive lung disease, was the result of his exposure to significant levels of diacetyl during his employment with a food flavoring company between 2003 and 2005. Plaintiff alleged he moved bags of the chemical compound throughout the facility, used a sprayer to mix diacetyl into batches of flavorings, and hand poured the compound into various mixtures. He filed suit against various manufacturers and distributors of chemical compounds used to make food flavorings, including those for diacetyl. After two days of deliberation, the jury found that Plaintiff’s alleged exposure to diacetyl was not a substantial factor in causing his lung injury. Undeterred, the Metzger Law Group sought appeal of the defense verdict arguing that the trial court erred when it informed prospective jurors of Velasquez’s status as an undocumented immigrant.

Central to Velasquez’ complaint was his claim that he would one day require a lung transplant to combat his disease. The trial court, after hearing Velasquez’ motion to preclude any evidence or mention of his citizenship or immigration status, determined that such evidence may only be relevant if it affected Velasquez’ chances of receiving a lung transplant. The court concluded that any mention to the jury that Velasquez was an illegal immigrant would be unduly prejudicial for any other purpose. Accordingly, the court heard testimony on the subject from Dr. David Ross, a transplant expert from UCLA Medical Center. Dr. Ross acknowledged that no patient at UCLA had been rejected for receiving a lung transplant because of national origin or because they were an undocumented worker, however a patient’s undocumented status may be discussed with respect to his ability to continue to receive follow-up treatment in the event of deportation. Following this testimony, the trial court informed the jury that Velasquez was an illegal immigrant.

During trial, several experts testified on the effect of a transplant candidate’s undocumented status. They revealed that United Network for Organ Sharing (“UNOS”) implemented new policies in September 2012 prohibiting any consideration of a patient on the basis of his race, national origin, or residency or naturalization status in accepting or rejecting them for a transplant. Despite this news, the trial court rejected Velasquez’s motion for mistrial and determined that no other mention of Velasquez’s illegal status could be made to the jury, which soon returned a verdict finding any existing negligence was not a substantial factor in causing Plaintiff’s harm.

On appeal, the Court determined that a plaintiff’s immigration status has no relation to the issue of liability, but it could impact a jury’s impartiality or cause the jury to determine that the plaintiff would not have been harmed if he had not illegally entered the country. In the present matter, Velasquez argued that exposure to various chemicals used in food flavorings resulted in his illness and that his undocumented status did not bear on any issue of liability. Furthermore, as Velasquez was not the party to raise the issue of his immigration status, the jury should not have been informed of his status as an undocumented immigrant.

In reversing the defense verdict, the Court of Appeals has sent a clear message to any defendant in California - the undocumented status of a plaintiff is too prejudicial for any jury to hear. Unless a Plaintiff personally opens the door, a plaintiff’s illegal immigrant status cannot be revealed to a jury in any personal injury action.

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