In the summer of 2003, Wilfredo Velasquez started working at Gold Coast, a company that made food flavorings.Velasquez moved diacetyl, in both closed and open bags and containers, throughout the company’s facility. He breathed ambient diacetyl particles in the air while using a sprayer to mix diacetyl into batches of liquid and dry flavorings, and while hand pouring the compound into mixes. Centrome, Inc. dba Advanced Biotech supplied roughly 80 percent of the diacetyl that Gold Coast used in its facility. Advanced did not manufacture the diacetyl. Advanced purchased the compound from suppliers then distributed it to customers like Gold Coast.

Advanced attached material safety data sheets (MSDS’s) to the containers of diacetyl it distributed to its customers. The MSDS’s warned that diacetyl was “harmful by inhalation,” but did not include specific warnings about the risks of any particular diseases from exposure to the compound. At trial, it was undisputed that Advanced’s warnings were consistent with flavorings industry practices at the time that Velasquez was working at Gold Coast. The California Division of Occupational Safety and Health did not issue exposure limits for diacetyl until 2010, more than four years after Velasquez stopped working at Gold Coast. There were no federal regulations governing exposure limits for diacetyl while Velasquez worked at Gold Coast. Even by the time of trial of Velasquez’s current case in 2012, the Federal Drug Administration continued to classify diacetyl as “Generally Regarded as Safe.”

Velasquez developed symptoms including shortness of breath. He was first diagnosed with bronchiolitis obliterans, a rare form of lung disease which is usually progressive and fatal, in December 2006. He received workers’ compensation benefits and claims to have a need for a lung transplant in the future.

In April 2007 Velasquez filed a civil complaint for personal injuries against several manufacturers and distributors of chemical compounds used to make food flavorings. Velasquez alleged his lung disease was caused by workplace exposure to a chemical compound, diacetyl, that was distributed by defendant and respondent Centrome, Inc. dba Advanced Biotech.

In the months leading up to trial, Velasquez filed a motion in limine to preclude Advanced (and, at the time, a number of other defendants) from presenting any evidence or making any comment about his citizenship or immigration status, or showing that he had used falsified information or documents when applying for employment. The defendants opposed the motion on the theory that Velasquez claimed to be a lung transplant candidate, and his candidacy would be precluded depending on his immigration status. The Court resolved this dispute after hearing testimony from UCLA physicians that immigration status can be discussed in the decision making process for lung transplant candidacy by denying the motion stating “I’m going to deny your in limine motion to keep it out. That’s my ruling.” In making its ruling, the court acknowledged that evidence of immigration status was “highly, highly prejudicial,” but that its probative value in Velasquez’s case was “definitely more than a little.” A complicated jury voir dire process occurred with the Court interjecting comments hoping to mitigate prejudice caused by information about his immigration status. Some jurors and alternate jurors admitted the information would have some influence on them and they were dismissed. However, after the ruling and during the trial the UCLA physician changed his testimony indicating that there was a new policy and it would not consider residency and immigration status when making decisions on transplant approvals. At this point it was too late, and the jury had already been involved in the immigration dispute. Motions for mistrial were overruled.

Trial was dominated by expert testimony. Nearly a dozen medical doctors testified on the subject of Velasquez’s medical history, his current medical condition, his prognosis, his medical treatment to date, and his need for future medical treatment, including his need for a lung transplant. The the jury returned a special verdict that supported the trial court granting Advanced’s motion for nonsuit on Velasquez’s common law negligence theory. Velasquez appealed, and the Court of Appeal reversed in the published case of Velasquez v Centrome, Inc. dba Advanced Biotech.

The Court of Appeal agreed with Velasquez that when an undocumented immigrant plaintiff files a personal injury action, but does not claim damages for lost earnings or earnings capacity, evidence of his or her immigration status is irrelevant. “Immigration status has no tendency in reason to prove or disprove any fact material to the issue of liability; it does not demonstrate whether the defendant committed a harm-causing act. Immigration status has no tendency in reason to prove or disprove any fact material to the determination of past special damages, i.e., what are the plaintiff’s past medical bills up to the date of trial. Nor is evidence of immigration status relevant to general damages, as it does not prove or disprove what is the reasonable amount of money to compensate the plaintiff for his or her past and future pain and suffering. Further, immigration status alone has no tendency in reason to prove or disprove any fact material to the issue of a party’s credibility.” The trial court abused its discretion in determining Velasquez’s alienage status was admissible under Evidence Code section 352, and the jury should not have been informed of it. California and in multiple other jurisdictions have recognized the strong danger of prejudice attendant with the disclosure of a party’s status as an undocumented immigrant. The trial court should have declared a mistrial.