Juries defy cliche of anti-immigrant bias

Your plaintiff is the family of a Mexican national from North Carolina, killed in an auto accident, and you’re stuck with a Virginia jurisdiction with a reputation for conservative jurors.

If those circumstances sound daunting, consider a second case.

Your 5 1/2-year-old plaintiff with a severe brachial plexus injury is the son of a Mexican woman who took the Fifth – through an interpreter – when she was asked during a deposition about her immigration status. Prince William County is your only venue. The Prince William County that drew attention around 2008 for its crackdown on illegal immigrants.

In both cases, “the conventional wisdom turned out to be no wisdom at all,” said David M. Kopstein, the Fairfax Station attorney who represented the infant plaintiff.

In the first, a Henrico County jury awarded $3 million for the wrongful death of Daniel A. Estrada Sr., who was killed when a driver for a tire service company ran a red light on Laburnum Avenue.

In the second, a Prince William County jury awarded Jesus Vargas $2.55 million.

The cases had little in common other than conservative jurisdictions and the nationality of the families.
Estrada, 52, came to this country with his wife and three children in 1992 to care for his mother-in-law in California. Fearful of the violence in California, the family relocated to Nash County, N.C., according to their attorney, John C. Shea of Richmond.

Estrada and his wife worked in the fields until he came to the attention of the operator of a tortilla factory in the county. He had learned English and became a salesman before starting his own business. Although the family members had not become American citizens, they were in the country legally.

His son, who was in his 30s, was in the vehicle with him when the wreck occurred and was killed also. Shea settled the case of the son after mediation for $1.8 million.

But the defendant’s insurer offered only $700,000 to settle the father’s case. The father was earning only $19,000 annually at the time of his death, and the son was earning more as an installer for a satellite dish company.

Given the difference in age and income, the settlement value of the son’s case probably was higher than that of the father, Shea acknowledged. On the other hand, Shea believed he had a powerful story to tell of the love and mutual dependence of Estrada and his wife and of the affection and high regard his two surviving adult children and six grandchildren had for him.

The son’s family situation was less compelling. He had two children, but he had separated from his wife and she had had a child by another man.

In the father’s case, Shea decided to conduct mock juries arranged by Jury Impressions. Shea presented an abbreviated version of his case to 14 Henrico residents. The group split into two panels that deliberated separately.

Shea watched the recorded deliberations and interviewed the mock jurors afterward. He was gratified to learn that Estrada’s nationality was not at issue once they learned the family was in the country legally.

The defendants admitted liability, and Shea asked for $7.35 million in damages, a number that he said grew out of the mock juries, after presenting testimony from Estrada’s wife and children. The defense countered by asking the panel to be fair and suggesting that $1 million was adequate compensation.

“Good families make for good verdicts, and all the good families didn’t come over on the Mayflower,” Shea said.

Shea did his homework on whether a party’s legal status could come into evidence. Although the Supreme Court of Virginia has not addressed the issue, other state and federal appellate courts have said the illegal status of a party usually stays out because it is irrelevant or because the prejudice to the party outweighs its probative value.

In the Prince William infant case, the mother’s immigration status was never directly addressed at trial, Kopstein said. Silence on the matter was not exactly reassuring to Kopstein and his co-counsel, Barry L. Leibowitz.

The jury knew the mother was Mexican, did not speak English and had had little or no prenatal care before the child’s delivery. The child’s father had returned to Mexico.

“We had no doubt whatsoever that the jury was going to be turned off by our client’s nationality,” Kopstein said.

On the other hand, Kopstein believed he had a strong case of negligence by the obstetrician. The injury to one of the child’s arms was severe. All five nerves that can be involved in a brachial plexus injury after shoulder dystocia were damaged. The boy had no functional use of his arm or hand.

Kopstein had no direct evidence the physician had used excessive force in delivering the boy, but the severity of the injury created a strong inference of such force. Because of the nature of the injury, the defense did not raise an argument typically made on shoulder dystocia cases – that the injury was caused by the natural forces of labor.

During deposition, the doctor denied using excessive force. He said the delivery was progressing and he did not regard brain injury as a risk in the case.

The jury’s demeanor during the four-day trial did little to alleviate his concern, Kopstein said. “The jury was totally unreadable. My co-counsel is a serious poker player. They were telling him nothing.”

The jury was composed of four women and three men, one of whom spoke Spanish and might well have been Hispanic, Kopstein said.

The concern about bias proved to be unfounded after two-and-a-half hours of deliberation when the jury sent a note asking if it could award more than the amount Kopstein had asked for.

Under state law, the award was reduced to $1.8 million. Kopstein said an agreement has been reached to resolve the case under a structured settlement, but the final terms are still being negotiated.