[No. 58511-8-I. Division One. February 25, 2008.]
[1] Evidence — Relevance — Balanced Against Prejudice — Discretion of Court — In General. A trial court has broad discretion in balancing the probative value of evidence against the potentially harmful consequences that might result from its admission. [2] Evidence — Review — Standard of Review. A trial court's evidentiary rulings are reviewed for an abuse of discretion. [3] Evidence — Pretrial Order — Review — Standard of Review. A trial court's ruling on a motion in limine is reviewed for an abuse of discretion. [4] Courts — Judicial Discretion — Abuse — What Constitutes — In General. A court does not abuse its discretion unless its decision is manifestly unreasonable or it exercises its discretion on untenable grounds or for untenable reasons. [5] Damages — Future Damages — Earnings — Factors — Immigration Status — Relevance. In a personal injury action in which the plaintiff claims future wage loss damages, the defendant may generally introduce evidence of the plaintiff's illegal immigration status if the defendant is prepared to show relevant evidence that, because of the plaintiff's illegal immigration status, the plaintiff is unlikely to remain in this country throughout the period of claimed lost future income. [6] Evidence — Review — Discretion of Court — Issue of First Impression — No Authority Cited. An appellate court may decline to rule that a trial court's decision on an evidentiary issue of first impression constitutes an abuse of discretion if the issue arose late in the proceedings and relevant authority was not provided to the trial court. [7] Evidence — Opinion Evidence — Expert Testimony — Violation of Pretrial Order — Door Opened by Opponent. A trial court may allow a witness to testify as an expert beyond limitations placed on the witness by an order in limine if opposing counsel opens the door to such testimony by eliciting the witness's opinion on an issue during cross-examination after being warned by the court outside the presence of the jury that asking the witness's opinion on such issue will call for an expert opinion. [8] Trial — Instructions — Review — Error of Law — Standard of Review. Alleged errors of law in jury instructions are reviewed de novo. [9] Trial — Instructions — Sufficiency — Number — Language. A trial court has considerable discretion in determining the number and content of jury instructions. [10] Trial — Instructions — Proposed Instructions — Misleading Instruction. A trial court is under no obligation to give a misleading instruction. [11] Trial — Instructions — Proposed Instructions — Lack of Authority. A trial court is under no obligation to give an instruction that is unsupported by authority. [12] Employment — Safe Workplace — Subcontractor's Duty — Compliance With Safety Regulations. A subcontractor does not necessarily have a primary, nondelegable duty to every employee within the scope of the subcontract to provide a safe workplace and to ensure compliance with all applicable safety regulations; rather, the primary responsibility lies with the general contractor. Nature of Action: A construction worker who was severely injured when he slipped and fell from a scaffold ladder at a construction site sought damages from the scaffolding supplier, asserting that the supplier violated applicable safety regulations for ladders on construction sites. Superior Court: After granting a partial summary judgment in favor of the worker, holding as a matter of law that the supplier violated a state safety regulation, but denying summary judgment as to liability, proximate cause, and damages, the Superior Court for King County, No. 04-2-36411-6, Michael Hayden, J., on June 23, 2006, entered a judgment on a verdict in favor of the defendant. The jury found that the supplier was negligent but that the negligence was not a proximate cause of the worker's injuries. Court of Appeals: Holding that the trial court did not abuse its discretion by admitting evidence of the worker's illegal immigration status as it pertained to his claim for lost future income, that the trial court did not err by allowing the scaffolding supplier's principal to provide expert testimony in violation of an order in limine, and that the trial court did not err by denying the worker's proposed jury instruction stating that the supplier had a duty to provide a safe workplace, the court affirms the judgment. Brian K. Boddy- and Robert B. Kornfeld- (of Kornfeld Trudell Bown & Lingenbrink, PLLC), for appellant. John C. Moore-, for respondent. ¶1 BAKER, J. — 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 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, 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 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 nonlegal 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. ¶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 of" Hi-Tech. His motion was denied. Salas now appeals, and Hi-Tech cross-appeals. II Immigration Status ¶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, ¶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. ¶18 Salas also cites to Balbuena v. IDR Realty LLC. ¶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 Majlinger v. Cassino Contracting Corp., ¶21 In Barahona v. Trustees of Columbia University in City of New York, ¶22 In another New York case, the court in Cano v. Mallory Management ¶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. ¶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. ¶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. ¶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. ¶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. ¶30 Salas states 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 Salas's counsel discussed Salas's immigration status at length in his direct examination of Salas's brother and of Salas himself. Expert 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 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's attorney asserted that after he asked Canney the question, 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's attorney 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's counsel 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 admissibility and scope of expert testimony. Jury Instruction 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, nondelegable 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. ¶46 Similarly, the court in Kamla v. Space Needle Corp. ¶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. ¶48 Because we affirm the trial court, we need not address Hi-Tech's cross-appeal. ¶49 Affirmed. APPELWICK, C.J., and BECKER, J., concur. Reconsideration denied March 27, 2008.