For those of you who have a loved one or friend who has experienced what it is like to suffer a traumatic brain injury, whether it’s from a sentinel bleed incidental to a leaking or ruptured aneurysm or whether it’s from a traumatic event, e.g. a car accident or some other insult, rest assured you are not alone. Cognitive and therapeutic support groups are likely available in your neighborhood to provide the mental health support for you to get cognitive, speech or vocational help.

Support from family and friends is something which is needed. As my wife say’s “unconditional love, help and encouragement” are those tools needed to help those catastrophically injured and, let’s not forget, to help those who have also suffered a mild traumatic brain injury (TBI) to get back onto their feet. Don’t despair and lose hope. Even for those of you who are frustrated and are about to give up hope- don’t! Cognitive rehabilitation centers offer support groups including counseling, therapy and other group activities which can help you climb out of that spiraling hole which at times feels like it’s pulling you down.

Contact your lawyer, doctor or therapist as they can often provide the best leads to help you find the right mental health professional to start you down the path so you can land back up on your feet. It’s admittedly a long, arduous process, but one which is not insurmountable as I can personally can say from my own experience in 1985 during my own personal travails and what it took to make a 100% recovery from a TBI.

Get help…call your best friend in times of loneliness and despair. Talk to someone about your frustrations, your anxieties and fears. Talk…talk…and talk  and more talk therapy…as it’s all good! Regularly see your therapist to learn coping skills and prompting techniques from close friends and family to allow you to be more functional and social. With time you can feel somewhat independent again as long as you can develop and trust the support group around you. Time is the best healer and over the years you may be one of those who can make a full physical and cognitive recovery.

Remember, friends and family have your best interest at heart. Compassion and understanding are all you need for support on your road to function and improved self sufficiency.

Rob Kornfeld of Kornfeld, Trudell, Bowen and Lingenbrink, LLC

personal injury lawyers

(800) 282-4878 or email Rob@Kornfeldlaw.com

Spinal Cord injury to Quadriplegic Patient: A quadriplegic passenger strapped and secured in his van suffered a cervical strain-whiplash injury in a car accident. The 72-year-old retired Boeing engineer suffered a partial loss in the use of his neck caused by a chronic cervical strain and muscle spasms. This gentleman’s loss was significant to him as his neck was his sole remaining source of independence.

Our client uses a wand, held between his teeth in his mouth, to operate his wheel chair by manipulating the wand between his teeth to operate touch controls on his wheel chair, to operate his computer, and to operate other aids in daily life. His wife was also hurt in the car accident and the UIM insurer, State Farm, offered only$35,000 the week before UIM arbitration.

The parties elected to arbitrate her UIM claim. The UIM arbitrator awarded $101,000 plus taxable costs for the wife’s loss of her husband’s consortium and for his wife’s soft tissue injuries suffered in the same MVA.

Total award: $850,000+

Email Seattle auto accident lawyer Rob Kornfeld at  Rob@Kornfeldlaw.com for quick answers to your questions or call him at (800) 282-4878 .

What this means is that if you are a responsible Washington insured motorist, with liability and collision coverage, there are holes in your insurance coverage unless you include  underinsured motorist cover (UM) as part of your policy. Without UM coverage, if you, a family member, friend or loved one is in a serious motor vehicle collision with an uninsured or underinsured motorist, you likely will recover little, if any, full reimbursement of your medical bills, wage loss, economic loss and recover pain and suffering or other general damages.

With the summer season of heavy highway driving upon us, it is extremely important to get a check up of your insurance coverage and determine if you have adequate policy limits. The strongest advice anyone can give is for you to call your agent to confirm you have Personal Injury Protection (PIP) and Uninsured/Underinsured Motorist (UIM).

Your Washington State casualty insurance statute, RCW 48.22.030 (1), requires all insurers, which do business in the State of Washington, to offer you coverage for UM/UIM and PIP coverage.  All insurers are mandated by Washington laws to provide this coverage to you  unless you affirmatively reject both PIP and UM/UIM coverage in writing. PIP and UIM coverage are some of the cheapest ways you can protect yourself, your family and loved ones against the financially irresponsible and negligent underinsured or uninsured motorist in Washington.

In over thirty (30) years of experience as a personal injury lawyer in Washington, nearly twenty-thirty percent (20% – 30%) of the motorists on our state’s highways are either uninsured or underinsured.  If you are in a collision, either as a motorist, pedestrian, jogger, cyclist, motorcyclist or in some other manner, the chances are very high that you will be injured by someone who is underinsured. UM/UIM coverage is simply solution to guard against this risk.

PIP coverage is another very inexpensive way to insure full health care coverage in the event of a collision. Premiums are relatively cheap. If you have PIP coverage included in your automobile policy, PIP insurance is like traditional old time insurance. PIP allows you to select any doctor or health care provider you wish to see without the administrative entanglements of a health care gate keeper as you would encounter in any managed care, PPO or related health care system.

After you read this article, call your insurance agent to make sure you have PIP and UIM coverages.

Rob Kornfeld of Kornfeld, Trudell, Bowen & Lingenbrink, PLLC has been handling insurance claims and motor vehicle collisions in Washington for over 30 years. Kornfeldlaw.com or email Rob at  Rob@Kornfeldlaw.com for quick answers to your questions. (800) 282-4878 .

Plaintiff Alex Salas’ lawyer, Robert Kornfeld of Kornfeld, Trudell, Bowen and Lingenbrink, PLLC, objected to the admissibility of the fact that Mr. Salas was an undocumented worker. Mr. Kornfeld argued that the probative value of this evidence was out weighed by its prejudicial effect and the evidence should have been admitted.

The trial judge did not agree with Mr. Kornfeld and let the evidence of Mr. Salas’ illegal immigration status to go to the jury. Plaintiff contended it poisoned the jury and the verdict was influenced by passion and prejudice against undocumented workers as shown by a defense verdict despite a finding of negligence.

The Supreme Court agreed with Mr. Kornfeld today and reversed the trial judge’s ruling and that of the Court of Appeals which held that the trial judge was within his discretion to allow this prejudicial information into evidence.

Mr. Salas is facing a new trial after certain issues are resolved at the Court of Appeals.

Rob Kornfeld of Kornfeld, Trudell, Bowen and Lingenbrink, PLLC
Rob@kornfeldlaw.com
www.kornfeldlaw.com
1 (800) 282-4878

Rob & Team Which Successfully Reversed the Decision

But have you ever thought about the consequences of a cervical strain injury to someone who has a disability and who relies on his neck for his independence?

Recently I had the pleasure of representing a 75 year old man who suffered a cervical strain in a motor vehicle collision. The accident was not his fault. I learned a great deal from GG. Here is what happened.

Despite being in the middle of the van in his wheel chair with a neck support for the back of his head, our client suffered a cervical whiplash injury. This seemingly minor injury, for anyone of us healthy folks, had catastrophic consequences for our client.

Prior to the car collision, our client, GG, relied on his neck to operate his wheel chair and his power box for the same. Using a wand held between his teeth, GG was able to operate his wheel by using the wand to turn the wheel chair motorized power box on and off, steer, brake, and go by pressing various buttons with the tip of his wand.

GG also used the wand to operate the keyboard on his computer. GG used his teeth to hold a pen, write and sign checks and to hold the wand to turn pages in books while he read or to surf on the internet.  Remarkably, he was pretty independent.

Once his neck was injured, his quality of life suffered because his pain kept him from using the little source of indepence he had left, namely, his neck.

After the car accident, GG’s neck became stiff, fatigued, sore and spasming. Naturally GG had pre-existing  degenerative changes in the neck, given his over use of the neck because of his altered lifestyle after becoming a quadrapelegic at the age of 19 from polio.  Use of his neck was much  greater. Thisplaced greater stresse on his cervical joints because of his increased use than you or I would normally experience. Unfortunately, as a result of the MVA, GG’s degenerative changes were accelerated by this collision. The trauma to his neck from the whiplash injury, even with a head rest, caused him to suffer from an increase in pain, discomfort, stiffness and a greater loss of range of motion.

GG had a great vision and outlook on life. He was positive, encouraging, thankful for all we did for him and grateful for his recovery in his case.

Despite a lack of objective findings, from the third party policy limits payment from Hartford Insurance, his UM policy limit payment from State Farm and his wife’s arbitrated UM claim for damages, the total recovery was about $850,000.

Neck strains can be devastating. They can adversely affect you or a loved one depending on your lifestyle and other limitations you may have. 

It was a pleasure representing such a hard working individual with such a zest for life. Every time any one of us has an ache, pain or discomfort, think twice before whining and be thankful how fortunate we all are.

This case involved the issue of whether the trial judge abused his discretion when he allowed the jury to hear evidence that Alex was an undocumented worker. This case will have far reaching effects across the state of Washington and nationally because this is a hot button issue.

After observing and hearing argument, I believe that the Court should reverse the Court of Appeals and trial judge because the admission of this evidence at trial is so prejudicial that once the “bell was rung” there was no unringing  the bell with a curative or limiting instruction. In other words, once you hear the damaging or prejudicial evidence, there is no putting it aside.

Further, as a trial lawyer, you have to come out and discuss this volatile issue in voire dire to ferret out and try to dismiss prejudiced jurors for “cause”. I tried to do this at trial, but the judge would not grant any challenges. Please keep in mind that once this information was revealed to the jury, I was shocked about the numerous jurors who believed that an undocumented worker had no right to even bring an action and sue in our courts. The tide was overwhelming and from this point forward, as a trial lawyer, the panel was tainted and there was no hope of turning the tide in favor of Alex. In other words, I knew Alex’ and my goose was cooked after most of all those 30+ hands went up during jury selection in answer to the question “Who of you believe that Alex has or should have no rights to bring a lawsuit in our country”.

After argument before the Supreme Court, I am encouraged about our chances of reversal and securing a new trial. It will take about 6-12 months for a decision. It was great to have my client and his wife and kids in court with us. Clearly the jury was adversely affected by consideration of his immigration status. This was highly prejudicial and likely led to the result, a finding of negligence but no causation or damages.

The following is a verbatim report of the Court of Appeal decision which upheld the trial judge’s ruling allowing evidence of his immigration status to be heard and considered by the jury.

The undersigned hired eminent court of appeals lawyer and ex-appellate judge Charles Wiggins to handle the petition for review to the Supreme Court. Appellate work is a specialty in and of itself. I am a trial lawyer and represent persons injured due to the negligence of others. I do not do appellate work.

The following is a copy of the Court of Appeals decision and I will blog the Supreme Court’s decision once it is published:

143 Wash.App. 373, 177 P.3d 769

Court of Appeals of Washington,Division 1.

Alex SALAS, a single person, Appellant/Cross-Respondent,
v.
HI-TECH ERECTORS, a Washington Corporation, Respondent/Cross-Appellant.

No. 58511-8-I.
Feb. 25, 2008.
Reconsideration Denied March 27, 2008.

Background: Worker, an undocumented immigrant, brought personal injury action against scaffolding subcontractor, alleging violation of administrative standards for ladders on construction sites. The Superior Court, King County, 2006 WL 3193619,Michael C. Hayden, J., granted partial summary judgment for worker and entered judgment on a jury verdict for subcontractor. Worker appealed and subcontractor cross-appealed.

Holdings: The Court of Appeals, Baker, J., held that:

(1) trial court did not abuse its discretion when it allowed evidence of plaintiff’s illegal immigrant status;

(2) as a matter of first impression, evidence of illegal immigration status should generally be allowed only if plaintiff, because of that status, is unlikely to remain in the country through period of lost future income;

(3) trial court did not abuse its discretion when it allowed subcontractor’s principal to testify as expert; and

(4)subcontractor did not have a primary, non-delegable duty to provide a safe workplace.

Affirmed.

Scaffolding subcontractor did not have a primary, non-delegable duty to provide a safe workplace and to ensure compliance with all Washington State construction safety regulations.

Alleged errors of law pertaining to jury instructions are reviewed de novo.

Attorney at Law, Robert B. Kornfeld, Kornfeld Trudell Bowen & Lingenbrink PLL, Kirkland, for Appellant.

John Clifford Moore, Attorney at Law, Maple Valley, Robert Craig Levin, Mitchell Lang & Smith, Seattle, for Respondent.
BAKER, J.

*376 ¶ 1 Alex Salas was injured on a construction site. He appeals rulings by the trial judge admitting evidence of his immigration status and expert testimony by Hi-Tech Erector’s principal, and the court’s denial of a proposed jury instruction. Hi-Tech Erectors cross-appeal a pretrial limitation on its witnesses’ testimony, and a grant of partial summary judgment in which the court held **771 as a matter of law that Hi-Tech Erectors violated a Washington Administrative Code provision governing safety standards for ladders. We affirm.

I

¶ 2 Alex Salas, an undocumented immigrant, was working on a condominium restoration project when he slipped from a scaffold ladder and fell three stories to the ground, suffering serious injuries.

¶ 3 Salas sued Hi-Tech Erectors (Hi-Tech), which supplied the scaffolding at the construction site, asserting that the company violated the Washington Administrative Code’s safety standards for ladders on construction sites.

¶ 4 Salas moved for summary judgment. Arguing that Hi-Tech had not disclosed any expert witnesses it might call, he sought to bar Hi-Tech from producing any witnesses, and to exclude the company principal in particular from offering expert opinion testimony.

¶ 5 The court granted Salas partial summary judgment, holding as a matter of law that Hi-Tech had violated former WAC 296-155-480(1) (2007), and denied summary judgment as to liability, proximate cause, and damages. He also ruled that Hi-Tech’s principal, George Canney, could be called as a witness at trial, but that he could not testify as an expert or opinion witness.

¶ 6 Salas moved for an order in limine seeking, inter alia, to exclude any evidence that he is not a United States citizen. The court denied the motion.

¶ 7 It is undisputed that Salas was living in this state on an expired visa. However, evidence of his status as an *377 illegal alien came to counsels’ attention only shortly before the trial, and counsel had no adequate chance to brief or prepare to address the issue. Hi-Tech unsuccessfully requested a continuance, a request Salas opposed.

¶ 8 Prior to trial, the court discussed the issue of Salas’s immigration status with counsel. The court stated that if Salas made a claim for impairment of future income, his status as a non-legal resident would be probative as to the extent of the future impairment. The court ruled that it would leave the decision whether or not to introduce evidence of Salas’s immigration status to Salas himself, saying, “you can’t have it both ways. It either stays out and there’s no future income claim or it comes in and you may make it.” “These are volatile times in terms of immigration, no doubt,” the court noted. “It may be a difficult decision for him to decide which way to go.”

¶ 9 On the last day of trial, the court again discussed the immigration issue with counsel, noting that it had been provided with a New York case holding that immigration status is a fact issue to be considered by the jury.^FN1 The court expressed its agreement with that opinion.

FN1. The record does not indicate which New York case the court was referring to.

¶ 10 Ultimately, in addition to past wage loss, and past and future medical expenses, Salas requested future lost wages, and his immigration status became an issue at trial. Salas testified that he had entered the country on a valid visa, and had applied for citizenship. There was no evidence that Salas was likely to be deported.

¶ 11 At trial, the court ruled that a question posed by Salas opened the door to allow George Canney to give expert and opinion testimony.

¶ 12 The jury found Hi-Tech to be negligent, but that its negligence was not a proximate cause of Salas’s injuries.

¶ 13 Salas moved for a new trial, arguing that introducing his immigration status and allowing George Canney to testify had the effect of “unfairly poisoning the jury in favor *378 of” Hi-Tech. His motion was denied. Salas now appeals, and Hi-Tech cross-appeals.

II

Immigration Status

[1] [2] ¶ 14 A trial court has broad discretion in balancing the probative value of evidence against the potentially harmful consequences that might result from its admission.**772 ^FN2We review a trial court’s decision on the admissibility of evidence, and its rulings on motions in limine for abuse of discretion.^FN3 Abuse of discretion occurs where the trial court’s action is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.^FN4

FN2. Lockwood v. A C & S, Inc., 109 Wash.2d 235, 256, 744 P.2d 605 (1987).

FN3. State v. Finch, 137 Wash.2d 792, 810, 975 P.2d 967 (1999).

FN4. Olver v. Fowler, 161 Wash.2d 655, 663, 168 P.3d 348 (2007).

¶ 15 Whether immigration status is properly admissible in a claim for future wage loss appears to be an issue of first impression in Washington. Neither party has provided this court with Washington case law on the matter.

¶ 16 Salas argues that his immigration status was not relevant to any issue in the trial, and its admission was improper and prejudicial. He relies principally on a single criminal case, State v. Avendano-Lopez,^FN5 to support his contention that any discussion of nationality or immigration status is inherently prejudicial. The Avendano-Lopez court held that questions of nationality and immigration status are irrelevant, appeal to a jury’s passions and prejudices, and are generally improper and inadmissible in a court of justice.^FN6 Courts in other jurisdictions have uniformly condemned questions designed to appeal to national prejudice.^FN7

FN5. 79 Wash.App. 706, 904 P.2d 324 (1995).

FN6. Avendano-Lopez, 79 Wash.App. at 718-19, 904 P.2d 324.

FN7. Avendano-Lopez, 79 Wash.App. at 719, 904 P.2d 324.

*379 ¶ 17 Salas’s reliance on Avendano-Lopez is misplaced. The court in Avendano-Lopez held that the question of immigration status was improper not only because it appealed to the jury’s passions and prejudices, but because it was completely irrelevant to the material issues of the criminal case. ^FN8 In civil cases, as discussed below, several courts have found immigration status to be relevant to a claim for lost future wages.

FN8. Avendano-Lopez, 79 Wash.App. at 719-20, 904 P.2d 324.

¶ 18 Salas also cites to Balbuena v. IDR Realty LLC.^FN9That civil case, however, supports Hi-Tech’s contention that immigration status may properly be placed before the jury. The Balbuena court addressed the question of whether an undocumented alien was precluded from obtaining lost wages because of the Immigration Reform and Control Act (IRCA).^FN10 The court held that any conflict with IRCA that may arise from allowing an alien’s lost wage claim to proceed to trial can be alleviated by permitting a jury to consider immigration status as one factor in its determination of damages. ^FN11A jury’s analysis of a future wage claim proffered by an undocumented alien is similar, the court held, to a claim asserted by any other injured person in that the determination must be based on all of the relevant facts and circumstances presented in the case.^FN12 The court hypothesized that an undocumented alien plaintiff could introduce proof that he had subsequently received or was in the process of obtaining the necessary documents and, consequently, would likely be authorized to obtain future employment in the United States. Conversely, a defendant could allege that a future wage award is not *380 appropriate because work authorization has not been sought, or approval was sought but denied.^FN13

FN9. 6 N.Y.3d 338, 812 N.Y.S.2d 416, 845 N.E.2d 1246 (N.Y.2006).

FN10. Balbuena, 6 N.Y.3d at 353-55, 812 N.Y.S.2d 416, 845 N.E.2d 1246.

FN11. Balbuena, 6 N.Y.3d at 362, 812 N.Y.S.2d 416, 845 N.E.2d 1246.

FN12. Balbuena, 6 N.Y.3d at 362, 812 N.Y.S.2d 416, 845 N.E.2d 1246.

FN13. Balbuena, 6 N.Y.3d at 362, 812 N.Y.S.2d 416, 845 N.E.2d 1246.

¶ 19 Hi-Tech points to a number of foreign cases, including Balbuena, where courts have allowed the introduction of evidence that the plaintiff was an undocumented worker.

¶ 20 In **773 Majlinger v. Cassino Contracting Corp.,^FN14 the court held that a plaintiff’s immigration status is relevant to a determination of damages for lost wages, and presents an issue of fact to be resolved by the jury.^FN15 The court held that a jury may take the plaintiff’s status into account, along with the myriad other factors relevant to a calculation of lost earnings, in determining whether the plaintiff would have continued working in the United States throughout the relevant period, or whether his or her status would have resulted in deportation or voluntary departure from the United States.^FN16

FN14. 25 A.D.3d 14, 802 N.Y.S.2d 56 (N.Y.App.2005), aff’d by, Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 812 N.Y.S.2d 416, 845 N.E.2d 1246 (N.Y.2006).

FN15. Majlinger, 802 N.Y.S.2d at 68.

FN16. Majlinger, 802 N.Y.S.2d at 68-69.

¶ 21 In Barahona v. Trustees of Columbia University in the City of New York,^FN17 the court held that the plaintiff put his immigration status at issue when he sought damages for future lost earnings, and that the plaintiff’s immigration status was thus a relevant fact for the jury to consider. ^FN18A jury’s analysis of a future wage claim proffered by an undocumented alien, the court held, is similar to a claim asserted by any other injured person in that the determination must be based on all of the relevant facts and circumstances presented in the case.^FN19

FN17. 11 Misc.3d 1035, 816 N.Y.S.2d 851 (N.Y.Misc.2006).

FN18. Barahona, 816 N.Y.S.2d at 853.

FN19. Barahona, 816 N.Y.S.2d at 853 (quoting Balbuena, 6 N.Y.3d at 362, 812 N.Y.S.2d 416, 845 N.E.2d 1246).

*381 ¶ 22 In another New York case, the court in Cano v. Mallory Management^FN20 held that the plaintiff’s undocumented alien status may be presented to the jury on the issue of lost wages, but not on the issue of pain and suffering.^FN21

FN20. 195 Misc.2d 666, 760 N.Y.S.2d 816 (N.Y.Sup.2003).

FN21. Cano, 760 N.Y.S.2d at 818.

¶ 23 Similarly, the New Hampshire Supreme Court has held that an illegal alien’s status, though irrelevant to the issue of liability, is relevant on the issue of lost earnings.^FN22 Though evidence of a plaintiff’s status may well be prejudicial, such evidence, the court held, is essential should an illegal alien wish to pursue a claim for lost earning capacity.^FN23

FN22. Rosa v. Partners in Progress, Inc., 152 N.H. 6, 868 A.2d 994, 1002 (2005).

FN23. Rosa, 868 A.2d at 1002.

¶ 24 While Hi-Tech cites numerous cases in which courts allowed evidence of illegal immigrant status, other courts have been more restrictive when allowing such evidence to be presented.

¶ 25 The court in Klapa v. O & Y Liberty Plaza Co.^FN24 held that whatever probative value illegal alien status may have is far outweighed by its prejudicial impact.^FN25 The court held that defendants must be prepared to demonstrate something more than the mere fact that the plaintiff resides in the United States illegally.^FN26

FN24. 168 Misc.2d 911, 645 N.Y.S.2d 281 (N.Y.Sup.1996).

FN25. Klapa, 645 N.Y.S.2d at 282.

FN26. Klapa, 645 N.Y.S.2d at 282.

¶ 26 A Michigan court held that the issue of the plaintiff’s illegal alien status, while irrelevant on the question of liability, was material and relevant on the issue of determining the present value of plaintiff’s future lost earnings, and remanded for a bifurcated trial to avoid prejudice. ^FN27

FN27. Melendres v. Soales, 105 Mich.App. 73, 306 N.W.2d 399, 402 (1981).

*382 ¶ 27 Citing the Michigan case, the Wisconsin Supreme Court affirmed a trial court’s decision to exclude evidence of a plaintiff’s illegal alien status in determining lost future earning capacity as unduly prejudicial. ^FN28 Noting that no bifurcated trial had been sought, and that no offer of proof had been made by any defendant that deportation was anything other than a speculative or conjectural possibility, the court affirmed the trial **774 court’s discretion in not allowing the “obvious prejudicial effect of the admission of such evidence.” ^FN29

FN28. Gonzalez v. Franklin, 137 Wis.2d 109, 403 N.W.2d 747, 759 (1987).

FN29. Gonzalez, 403 N.W.2d at 760.

[3] ¶ 28 In the present case, the court was prepared to exclude all evidence of Salas’s illegal alien status, provided he did not seek future lost earnings. Salas ultimately sought future lost wages, but made no attempt to mitigate any potential prejudice caused by evidence of his immigration status. He did not request a bifurcated trial to separate the issue of damages from negligence and liability. He further avers that it would have been pointless to request a curative jury instruction, as the court had already denied his motion in limine. He could have requested an instruction limiting consideration of his immigration status to the issue of future lost wages, but did not do so.

¶ 29 Salas asserts that the jurors were prejudiced against illegal immigrants, and his trial attorney has submitted a declaration to that effect.^FN30However, voir dire was not recorded, leaving no record for this court to review. He declares that prejudiced jurors were seated after he used all of his peremptory challenges, but there is no indication that he sought to exclude potentially prejudiced jurors for cause.

FN30. The attorney’s paralegal also submitted a declaration alleging prejudice by jurors.

¶ 30 Salasstates that Hi-Tech’s counsel immediately sought to inject the issue into the trial in his opening and on cross-examination. Neither opening nor closing arguments have been provided to this court, but the record shows that *383 Salas’s counsel discussed Salas’s immigration status at length in his direct examination of Salas’s brother and of Salas himself.

[4] ¶ 31 The issue of immigration status is divisive and prejudicial. We conclude that evidence of a party’s illegal immigration status should generally be allowed only when the defendant is prepared to show relevant evidence that the plaintiff, because of that status, is unlikely to remain in this country throughout the period of claimed lost future income. Under the unique facts of this case, however, where the issue arose so late in the process and relevant authority was not provided to the court, we cannot conclude that the trial court abused its discretion in allowing evidence of Salas’s immigration status. ^FN31

FN31. We note also that the jury never reached the issue of damages.

Expert Testimony

[5] ¶ 32 Salas argues that it was error for the court to allow George Canney to testify beyond the limits imposed on his testimony.

¶ 33 Salas initially sought to bar any witness testimony by Hi-Tech, arguing that such a limitation was justified by Hi-Tech’s purported delay in responding to discovery requests.

¶ 34 In his motion to exclude all defense witnesses, Salas asserted that Hi-Tech had not disclosed any expert witnesses, nor any witnesses who might “wear two hats.” In one of his interrogatories, Salas asked, “Are there any witnesses who have factual information regarding this case and who are also ‘expert witnesses’?” In its answers to interrogatories, Hi-Tech indicated it had not retained any expert witnesses, but did list George Canney as a witness with factual information as well as “expertise in erection of scaffolds and regulations pertaining thereto.”

¶ 35 In its order granting partial summary judgment to Salas, the court decreed that “defense may only call its *384 principal [George Canney] as a witness at trial, but he shall not be able to testify as an ‘opinion’ or ‘expert’ witness.”

¶ 36 At trial, Salas’s attorney asked Canney whether Salas would have been prevented from hitting the ground if he had been tied off with a safety harness. The court ruled that the question opened the door to allow Canney to offer expert witness and opinion testimony. The court’s discussion with counsel on this matter is not in the record.

¶ 37 In his declaration in support of Salas’s motion for a new trial, Salas’sattorney asserted that after he asked Canney the question,**775 the court asked to speak with both counsel in chambers where it informed Salas’s counsel that he had opened the door to expert testimony.

¶ 38 In its opposition to the motion for a new trial, Hi-Tech disputed that account, stating that Salas’s attorney asked the question after the court held a sidebar conference and warned Salas’s counsel that if he asked that question he would be opening the door.

¶ 39 The record shows that after Salas’sattorney asked Canney if Salas would have been prevented from falling if he had been tied off, defense counsel requested a sidebar. After the sidebar, the court asked defense counsel if he wanted to restate his question. Salas’scounsel then introduced Canney’s deposition, and read the same question aloud from the deposition. After some further questioning, the court again called counsel to a sidebar discussion.

¶ 40 This series of sidebar discussions comports more closely with Hi-Tech’s account than it does with Salas’s. In its order denying Salas’s motion for a new trial, the court reiterated that it had informed counsel outside the presence of the jury that asking for Canney’s opinion as to whether any particular safety device would have prevented the accident called for an expert opinion, because Canney was not present at the time of the accident and had no personal knowledge as to how Salas fell from the ladder.

¶ 41 Absent an abuse of discretion, we will not disturb on appeal a trial court’s rulings on motions in limine, or the *385 admissibility and scope of expert testimony.^FN32The trial court did not abuse its discretion in allowing Canney to testify beyond the initial limitations on his testimony.

FN32. See Christensen v. Munsen, 123 Wash.2d 234, 241, 867 P.2d 626 (1994) (admissibility and scope of expert testimony); Gammon, 38 Wash.App. at 286, 686 P.2d 1102(motions in limine).

Jury Instruction

[6] [7] ¶ 42 Salas appeals the trial court’s decision not to give his proposed jury instruction regarding Hi-Tech’s duty to provide a safe workplace. Alleged errors of law pertaining to jury instructions are reviewed de novo.^FN33

FN33. Caldwell v. Dep’t of Transp., 123 Wash.App. 693, 696, 96 P.3d 407 (2004).

¶ 43 The instruction Salas proposed reads as follows:

A subcontractor like defendant Hi-Tech, owes a duty to every employee within the scope of its subcontract to ensure that it complies with all applicable safety regulations. The subcontractor is the party with innate supervisory authority and per se control over the scope of its subcontract, so it bears the primary, non-delegable duty to provide a safe workplace for workers. In Washington, subcontractors have a non-delegable duty to ensure compliance, within the scope of their subcontracts, with all Washington State construction safety regulations. This liability is justified because a subcontractor’s supervisory authority is per se control over the workplace within the scope of its subcontract.

¶ 44 Salas cites to three cases to support his instruction. Those cases, however, do not support his assertion that Hi-Tech had a primary, non-delegable duty to provide a safe workplace, and to ensure compliance with all Washington State construction safety regulations.

¶ 45 The court in Stute v. P.B.M.C., Inc.^FN34 held that the general contractor should bear the primary responsibility for compliance with safety regulations because the general *386 contractor’s innate supervisory authority constitutes sufficient control over the workplace.^FN35

FN34. 114 Wash.2d 454, 788 P.2d 545 (1990).

FN35. Stute, 114 Wash.2d at 464, 788 P.2d 545.

¶ 46 Similarly, the court in Kamla v. Space Needle Corp.^FN36 held that “[b]ecause a general contractor is in the best position, financially and structurally, to ensure WISHA compliance or provide safety equipment to workers, we place ‘the prime responsibility for safety of all workers … on the general contractor.’**776 ” ^FN37 This court, in Weinert v. Bronco National Company,^FN38 stated that, under Stute, a general contractor bears the general duty to enforce safety regulations, and held that a siding subcontractor’s duty did not extend beyond the scope of its contract with the general contractor, extending only to employees engaged in siding work.^FN39

FN36. 147 Wash.2d 114, 52 P.3d 472 (2002).

FN37. Kamla, 147 Wash.2d at 124, 52 P.3d 472 (quoting Stute, 114 Wash.2d at 463, 788 P.2d 545).

FN38. 58 Wash.App. 692, 795 P.2d 1167 (1990).

FN39. Weinert, 58 Wash.App. at 697, 795 P.2d 1167.

¶ 47 Salas’s proposed instruction was not an accurate reflection of the law. A trial court has considerable discretion in determining the number and content of jury instructions.^FN40 It is under no obligation to give misleading instructions, or instructions which are not supported by authority.^FN41 We affirm the trial court’s decision not to give Salas’s proposed jury instruction.

FN40. Havens v. C & D Plastics, Inc., 124 Wash.2d 158, 165, 876 P.2d 435 (1994).

FN41. McCluskey v. Handorff-Sherman, 68 Wash.App. 96, 110, 841 P.2d 1300 (1992), aff’d, 125 Wash.2d 1, 882 P.2d 157 (1994).

¶ 48 Because we affirm the trial court, we need not address Hi-Tech’s cross-appeal.

¶ 49 AFFIRMED.

WE CONCUR: APPELWICK, C.J., and BECKER, J.

Wash.App. Div. 1,2008.
Salas v. Hi-Tech Erectors
143 Wash.App. 373, 177 P.3d 769

END OF DOCUMENT

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The trauma from this collision lit up an underlying congenital condition which he did not know he had.

As an athlete, basketball player and husband, ready to start a family, and just recently having completed his masters in divinity, this injury portended an unfortunate story for a young man and his family.

Fortunately his faith and trust in the powers that be assisted him to weather the storm of surviving a serious spinal injury of Syrinx.

Syrinx can be a disabling injury but not much is known about the long term prognosis. Many with Syrinx who have minimal symptoms can from out of no where 10-20 years down the line find that an expanding syrinx or cysts in the spinal cord has increased their neurological complaints.

Seattle has some of the leading researchers and neurosurgeons, who specialize in this disease and condition, west of the Mississippi.

Despite the injury, which resulted in a multi-level cervical laminotomy and foraminotomy, the worker recovered fairly well over the coming years.

Unfortunately, as a result of his spinal stenosis and aggravation of underlying cervical disease, the worker can no longer return to work and a vocational assessment and economic work up of his loss of earning capacity was completed.

With worker injuries which lead to big dollar recoveries, it is important to insure you client protects his settlement recovery against friends, family and himself/herself because most people cannot appreciate and understand how to handle large six figure net recoveries. There is a risk they will quickly blow the money.

It’s important to counsel and educate your client about securing proper financial assistance to preserve their once in a lifetime chance to put money away for their retirement.

By Patricia Greenstreet

Special to The Times

AS we reach for the dream of health care for all, we need to focus our reform energies on improving patient safety. Preventing medical errors will lower health-care costs, reduce doctors’ insurance premiums and protect patients.

Taking away patients’ rights does not improve the quality of our health-care system or produce cost savings. The myth that “reforming” our medical-malpractice system will somehow save money is particularly dangerous, as it asks us to give up a fundamental right in exchange for affordable and accessible health care. This so-called bargain would not benefit anyone except the insurance industry.

Instead, let’s look at the real facts of medical malpractice and its cost implications and not take away the rights of innocent victims of medical malpractice and their families.

The true crisis in medical malpractice is negligent medical care. The Institute for Medicine estimates that more than 98,000 deaths a year are caused by preventable medical errors, making this our nation’s sixth-leading cause of death. The cost to the system of these deaths alone is estimated at more than $29 billion dollars annually — twice the cost of the malpractice system as a whole.

Yet despite the numerous injuries and deaths from preventable medical injury, most injured people do not file lawsuits, according to the Harvard School of Public Health. Public Citizen found that malpractice litigation costs amount to less than 0.6 percent of overall health-care spending, and malpractice payouts are at an all-time low. In Washington state, medical-malpractice cases made up just 0.3 percent of all civil cases filed between 2002 and 2008, according to data from the Washington State Administrative Office of the Courts. As national expert and author Tom Baker said, “We have an epidemic of medical malpractice, not of malpractice lawsuits.”

As a registered nurse and lawyer, I know that the so-called malpractice “reforms” offered by the insurance industry will not only increase the costs for injured families; they will result in breaking many families financially. When that happens, taxpayers pick up the continuing costs of these often-catastrophic injuries, the insurer gets a free ride, and the costs don’t go away. This is no bargain or trade-off. It’s robbery.

Another persistent myth is the wrong idea of “defensive medicine” and the costs that it purports to add to the health-care system. The idea that extra tests are ordered only to protect from fictitious lawsuits, and not because of our fee-for-service health-care system that rewards ordering extra tests and procedures, is defied by research and common sense. Insurance companies and Medicare will not pay for unnecessary costs, treatments and procedures.

No empirical evidence demonstrates that defensive medicine exists. On the contrary, a 2004 report by the nonpartisan Congressional Budget Office noted, “some so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians or by the positive (albeit small) benefits to patients.”

The best way to save money in the health-care system is to prevent injuries from preventable errors in the first place.

Public and private organizations like the Centers for Medicare & Medicaid Services and HealthGrades are offering cutting-edge solutions for the prevention of the costs — and human misery — caused by these errors. Let’s follow the example set by anesthesiologists, who looked at their own practices to increase patient safety by developing new guidelines to reduce errors. The safety changes they implemented make them among the safest practitioners in the U.S., with malpractice insurance rates that have fallen.

It is by curing the epidemic of preventable medical errors that we can achieve reduced costs for patients and families, but also for the whole system. Let’s focus on what has been proven to reduce costs and improve lives — eliminating preventable errors — rather than giving up fundamental rights as a bargaining chip.

Patricia Greenstreet is a registered nurse and attorney in Seattle, and chairs the women’s section of Washington State Association for Justice.

Adrianne Williams

Washington State Association for Justice

formerly the Washington State Trial Lawyers Association