Wielgus v. Ryobi Technologies, Inc. et al

Filing 259

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 6/21/2012. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAROSLAW WIELGUS,

)
)
Plaintiff,
)
)
v.
)
)
RYOBI TECHNOLOGIES, INC., et al., )
)
Defendants.
)

No. 08 CV 1597

Magistrate Judge Young B. Kim

June 21, 2012

MEMORANDUM OPINION and ORDER
In this product-liability suit brought pursuant to this court’s diversity jurisdiction,
Jaroslaw Wielgus alleges that Ryobi Technologies, Inc., One World Technologies, Inc., and
Home Depot, USA, Inc. (collectively, “the defendants”), are liable for hand injuries he
sustained in March 2006 while using the Ryobi Model BTS10S—a table saw that the
defendants manufactured and/or sold. His complaint includes claims for negligence, breach
of implied warranty, and strict liability under Illinois law. (R. 84.) The parties consented to
this court’s jurisdiction (R. 65, 90), and the case has progressed to the pre-trial phase. This
is the fourth memorandum opinion this court has issued addressing a subset of the 41 motions
in limine the parties have filed. In the current opinion, the court addresses Wielgus’s second
motion in limine together with defendants’ motion number 32. These motions both center
on the question of whether Wielgus, an undocumented or unauthorized alien,1 may recover

1

The Immigration Reform and Control Act of 1986 defines an alien as “any person not a
citizen or national of the United States.” 8 U.S.C. § 1101(a)(3). An “unauthorized alien”
is one who is neither “lawfully admitted for permanent residence” nor “authorized to be . . .

economic damages for his lost future earnings and diminished earning capacity in an Illinois
common law tort action. For the following reasons, Wielgus’s second motion in limine
(R. 206) is granted in part and denied in part, and defendants’ motion number 32 (R. 199) is
granted in part and denied in part. Wielgus is permitted to introduce evidence to demonstrate
that he suffered economic damages as a result of his injuries but he must restrict his evidence
to what he could lawfully earn outside the United States.
Background
Wielgus is a Polish national who in 2000, gained entry into the United States on a sixmonth visitor visa. (R. 206, Pl.’s Mot. at 2; R. 154, Pl.’s Mot. to Adjourn Trial.) According
to Wielgus, he presented a valid work visa to his employer when he began his employment
but continued to work following its expiration. See (R. 233, Pl.’s Resp. at 103; R. 233-1,
Pl.’s Resp., Ex. Y at 41.) At the time of his March 2006 accident, Wielgus was an
undocumented alien, not authorized to work in the United States. (R. 206, Pl.’s Mot. at 2.)
Following the accident, in August 2007, Wielgus returned to Poland (id.), and he now lives
in England where he has a construction business, (R. 230; R. 252). As a result of violating
the terms of his visitor visa, Wielgus is ineligible to secure any type of visa to gain entry into
the United States for a period of 10 years from the date of his departure or until August
2017.2 (R. 154-1 at ¶ 7.)

employed by this chapter by the Attorney General.” 8 U.S.C. § 1324a(h)(3).
2

Plaintiff represented to the court that he is in the process of seeking an exception in order
to personally appear and testify at his jury trial.
2

Analysis
Wielgus and the defendants have moved this court to resolve the issue of whether an
undocumented alien may recover lost future earnings and damages for the diminution in his
future earning capacity in a tort action brought under Illinois law. The parties dispute
whether Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), requires this court
to conclude that federal immigration policy, as expressed by Congress in the Immigration
Reform and Control Act of 1986 (“IRCA”), precludes Wielgus from recovering economic
damages at United States wage levels.
The defendants first contend that Wielgus cannot recover any earnings that would be
based on future unlawful employment in the United States and that allowing Wielgus to
recover such earnings would undermine IRCA’s objectives. Alternatively, the defendants
argue that even if Wielgus can recover such earnings, he is limited to wages measured at the
rates at which he could lawfully earn them outside the United States, not wages measured at
the rates at which he could unlawfully earn them in the United States. Additionally,
according to the defendants, Wielgus cannot recover those earnings he could legitimately
earn working outside the United States in this case because he has failed to present any
evidence supporting such earnings.
Wielgus counters that Hoffman Plastic, a case involving the National Labor Relations
Board (“NLRB”), should be limited to labor law actions brought under the National Labor
Relations Act (“NLRA”), and not extended to tort actions brought under state law where the

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unauthorized alien did not obtain employment through fraudulent means. Wielgus claims
that IRCA does not prevent recovery of lost future earnings in state personal injury actions
because the defendants’ tortious conduct resulted in the loss of future wages that could be
earned not only in the United States, but anywhere Wielgus would seek to be employed.
Also, Wielgus argues that precluding recovery would create a financial incentive for
employers to hire undocumented workers, a result that is contrary to IRCA’s objectives.
To resolve the question posed by the parties, it is first necessary to determine whether
Illinois law allows undocumented aliens to recover lost future earnings at United States pay
rates. If not, the court must then decide whether Illinois law allows undocumented aliens to
recover any economic damages. If Illinois law does permit recovery of lost earnings that an
undocumented alien could earn outside the United States, the court must then determine
whether IRCA preempts this Illinois law.
IRCA is a “comprehensive scheme prohibiting the employment of illegal aliens in the
United States.” Hoffman Plastic, 535 U.S. at 147. In Hoffman Plastic, the Supreme Court
noted that IRCA “‘forcefully’ made combating the employment of illegal aliens central to
‘[t]he policy of immigration law.’” Id. (quoting INS v. National Ctr. for Immigrants’ Rights,
Inc., 502 U.S. 183, 194 n.8 (1991)). To accomplish its goals, IRCA makes it unlawful for
an employer to knowingly hire an unauthorized alien. 8 U.S.C. § 1324a(a)(1)(A). IRCA
mandates that prior to the start of employment, employers confirm the legal status of newly
hired individuals by examining specified documents to verify their identity and eligibility for

4

employment. 8 U.S.C. § 1324a(b). Absent the required documentation, the applicant is
ineligible for employment. 8 U.S.C. § 1324a(a)(1). IRCA further mandates discharge of the
worker if, during the course of his employment, the employer learns that he is an
unauthorized alien or that he has since become unauthorized after his hiring. 8 U.S.C.
§ 1324a(a)(2). IRCA also makes it unlawful for an unauthorized alien to obtain employment
by tendering fraudulent documentation. 8 U.S.C. § 1324c(a). IRCA, however, does not
otherwise prohibit undocumented aliens from seeking or maintaining employment.
Employers and aliens who violate IRCA may be subject to civil fines (8 U.S.C.
§ 1324a(e)(4)(A); 18 U.S.C. § 1546(b)) and criminal prosecution (8 U.S.C. § 1324a(f)(1);
18 U.S.C. § 1546(b)).
In Hoffman Plastic, the Supreme Court considered a challenge brought under the
NLRA by an undocumented alien who was not lawfully entitled to be present in the United
States and who had used false documentation to obtain employment in violation of IRCA
provisions. 535 U.S. at 141. The Supreme Court held that federal immigration policy, as
expressed in IRCA, precluded the NLRB from awarding backpay to the undocumented alien,
despite the employer’s violation of labor laws. Id. at 149, 151. The Supreme Court noted that
the IRCA regime makes it “impossible for an undocumented alien to obtain employment in
the United States without some party directly contravening explicit congressional policies”
because “[e]ither the undocumented alien tenders fraudulent identification, which subverts
the cornerstone of IRCA’s enforcement mechanism, or the employer knowingly hires the

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undocumented alien in direct contradiction of its IRCA obligations.” Id. at 149. To thus
allow an undocumented alien to recover backpay, the Court concluded, “for years of work
not performed, for wages that could not lawfully have been earned, and for a job obtained
in the first instance by criminal fraud,” id., would “encourage the successful evasion of
apprehension by immigration authorities, condone prior violations of the immigration laws,
and encourage future violations,” id. at 151. See also Del Rey Tortilleria, Inc. v. NLRB, 976
F.2d 1115, 1122 (7th Cir. 1992) (holding pre-Hoffman Plastic that IRCA “clearly bars the
Board from awarding backpay to undocumented aliens wrongfully discharged after IRCA’s
enactment”).
Because state law governs substantive issues in a diversity action, Gacek v. American
Airlines, Inc., 614 F.3d 298, 301 (7th Cir. 2010), it is necessary in this case to determine
whether an undocumented alien may recover future lost earnings under Illinois law. The
Illinois Supreme Court has not answered this question. See Fidelity Union Trust Co. v. Field,
311 U.S. 169, 177 (1940) (“The highest state court is the final authority on state law.”). In
the absence of Illinois Supreme Court precedent, this court looks to decisions of the Illinois
Appellate Court. See id. at 177-78; see also Arnold v. Metro. Life Ins. Co., 970 F.2d 360,
361 (7th. Cir. 1992).
Wielgus points to Economy Packing Co. v. Illinois Workers’ Comp. Comm’n, 387
Ill.App.3d 283 (1st Dist. 2008), to support his argument that Illinois law allows
undocumented aliens to recover future lost earnings. Although that case is instructive, it does

6

not definitively answer the question presented here. There, the Illinois Appellate Court was
answering the question of whether an undocumented alien is precluded from obtaining
workers’ compensation benefits, not future lost earnings. The court recognized
undocumented aliens as “employees” within the definition of the Illinois Workers’
Compensation Act, 820 ILCS 305/1 (2002), and concluded that the injured employee in that
case was entitled to receive workers’ compensation benefits. Economy Packing, 387
Ill.App.3d at 289. Addressing the impact of Hoffman Plastic on this question, the court held
that workers’ compensation benefits were “fundamentally distinct” from the backpay at issue
in Hoffman Plastic, noting that unlike the undocumented alien there, the claimant seeking
workers’ compensation benefits had “suffered a loss unrelated to her violation of the IRCA.”
Id. at 291. The court went on to say:
Although the IRCA prevents the claimant from legally working in the United
States, she would still be able to work elsewhere had she not sustained a workrelated injury. As a consequence, the award of [permanent total disability]
benefits to the claimant is separate and distinct from any continuing violation
of the IRCA and, therefore, does not conflict with federal immigration policy.
Id. While noting that the primary purpose of IRCA is to “diminish the employment ‘magnet
that attracts aliens here illegally,’” the court expressed its disbelief that “eligibility for
workers’ compensation benefits in the event of a work-related accident [could] realistically
be described as an incentive for undocumented aliens to unlawfully enter the United States.”
Id. (quoting H.R.Rep. No. 99-682(I), at 46 (1986), as reprinted in 1986 U.S.C.C.A.N. 5649,
5650). According to the Illinois Appellate Court, precluding the recovery of workers’

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compensation benefits would contravene IRCA’s purposes by creating a financial incentive
for employers to hire undocumented workers. Id. at 292. The court thus concluded that
IRCA, neither expressly nor implicitly, preempts the awarding of workers’ compensation
benefits to undocumented aliens. Id.
But that the Illinois Appellate Court and courts in other jurisdictions have all similarly
concluded that state law extends workers’ compensation benefits to undocumented aliens,
see Economy Packing, 387 Ill.App.3d at 293 (citing cases), does not answer the question
presented here. The policy implications of awarding workers’ compensation benefits are
significantly different from those implicated by awarding damages in state tort actions. See
Zuniga v. Morris Material Handling, Inc., No. 10 C 696, 2011 WL 663136, at *4 (N.D. Ill.
Feb. 14, 2011); see also Veliz v. Rental Serv. Corp. USA, Inc., 313 F.Supp.2d 1317, 1336-37
(M.D. Fla. 2003) (distinguishing policy implications of awarding workers’ compensation
benefits from state common law tort system). Workers’ compensation is a statutory remedy
that imposes liability on employers for workplace injuries. See Economy Packing, 387
Ill.App.3d at 288. It acts as a form of insurance, providing for “liability without fault on the
part of the employer in return for relief from the prospect of large damage claims based on
common-law negligence.” Incandela v. Giannini, 250 Ill.App.3d 23, 26-27 (2d Dist. 1993);
see also Sharp v. Gallagher, 95 Ill.2d 322, 326 (1983).
By contrast, recovery of future earnings in a tort action is one manner, in addition to
recovery for damages for pain and suffering and medical expenses, in which an injured

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plaintiff may be made whole. See McLane v. Russell, 131 Ill.2d 509, 523-24 (1989); see also
Harris v. Peters, 274 Ill.App.3d 206, 207 (1st Dist. 1995) (“The purpose of awarding
compensatory damages is to make the injured party whole and restore him to the position he
was in before the loss, but not to enable him to make a profit or windfall on the
transaction.”). It is not a type of insurance; nor is it a substitute for Illinois’s tort system. See
Veliz, 313 F.Supp.2d at 1337. In short, that Illinois has allowed undocumented aliens to
recover workers’ compensation does not answer the question of whether they may also
recover future earnings in a state tort action. Accordingly, because Illinois courts have not
definitively answered this question, the court must attempt to predict how the Illinois
Supreme Court would answer it. See Standard Mut. Ins. Co. v. Bailey, 868 F.2d 893, 896
(7th Cir. 1989).
“When state law on a question is unclear . . . the best guess is that the state’s highest
court, should it ever be presented with the issue[ ], will line up with the majority of the
states.” Vigortone AG Products, Inc. v. PM AG Products, Inc., 316 F.3d 641, 644 (7th Cir.
2002). But following Hoffman Plastic, courts have split on this issue, some concluding, in
some form, that an undocumented alien is precluded from recovering in tort future lost
United States wages.3 See, e.g., Martinez v. Freeman, No. 06 C 50199, 2008 U.S. Dist.

3

Wielgus claims that the “substantial national consensus” among courts addressing this
issue is that Hoffman Plastic does not bar an undocumented alien from seeking lost future
earnings. (R. 206, Pl.’s Mot. at 5.) But as detailed in this opinion, courts nationally are
divided on this subject.
9

LEXIS 112290, at *7, *8 n.4 (N.D. Ill. Feb. 22, 2008) (holding that claimant is not entitled
to recover any potential lost United States wages “because such future wages could only have
been earned in violation of the federal immigration laws” but allowing claimant to recover
damages based on loss of future earnings that could have been earned lawfully, such as
earnings from native county); Veliz, 313 F.Supp.2d at 1337 (“[P]ermitting an award
predicated on wages that could not lawfully have been earned, and on a job obtained by
utilizing fraudulent documents runs contrary to both the letter and spirit of the IRCA, whose
salutory purpose it would simultaneously undermine.” (internal quotation marks omitted));
Hernandez-Cortez v. Hernandez, No. Civ.A. 01-1241-JTM, 2003 WL 22519678, at *7
(D. Kan. Nov. 4, 2003) (“Hernandez-Cortez’s status as an illegal alien precludes his recovery
for lost income based on projected earnings in the United States.”);4 Rosa v. Partners in

4

Wielgus contends that the statements in Veliz and Hernandez-Cortez were not holdings,
but rather, merely dicta. In Veliz, although the district court granted the defendants summary
judgment on all of the plaintiff’s claims, the court noted that it was considering the
defendants’ argument regarding the plaintiff’s claim for lost support and medical expenses
as a matter of law. 313 F.Supp.2d at 1334 n.41, 1337 (granting summary judgment on claim
for lost wages plaintiff would have earned as a United States employee). In HernandezCortez, the plaintiffs brought a negligence action against multiple defendants seeking
damages for personal injuries they sustained resulting from a motor vehicle accident
involving two separate collisions. 2003 WL 22519678, at *1. The district court concluded
that because the plaintiffs participated with the driver of their van in a common plan to
transport unauthorized aliens, they were not “innocent passengers,” and any negligence on
the part of the driver of the van, therefore, was imputed to the plaintiffs. Id. at 5. This did
not mean, however, that Hernandez-Cortez, an unauthorized alien, could not pursue his
claims for injuries and related damages—though not lost income based on his projected
earnings in the United States—against the defendants. Id. at 7. In rejecting Wielgus’s
contention that the statements in these cases are merely dicta, this court notes that no other
court interpreting these cases has concluded, as Wielgus did, that the statements in question
10

Progress, Inc., 152 N.H. 6, 13 (2005) (“an illegal alien may not recover lost United States
earnings, because such earnings may be realized only if that illegal alien engages in unlawful
employment”).5 The Hoffman Plastic rationale has also been applied in cases alleging
violations of the Fair Labor Standards Act. See Renteria v. Italia Foods, Inc., No. 02 C 495,
2003 WL 21995190, at *6 (N.D. Ill. Aug. 21, 2003) (“[T]he Supreme Court has made it clear
that awarding back pay to undocumented aliens contravenes the policies embodied in
[IRCA]. An award of front pay would be inappropriate for the same reason: front pay
essentially assumes that the worker will continue to work for the employer in the future,
which is against the law for an undocumented alien.”).
Other courts have reached the opposite conclusion, holding that an undocumented
alien’s immigration status is not a per se bar to the recovery of lost future earnings in a tort
case. See, e.g., Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219, 228, 249 (2d
Cir. 2006) (holding where employer, not undocumented alien, violated IRCA by arranging
employment and where jury instructed to consider worker’s removability in assessing
damages, New York law did not conflict with IRCA policy in allowing recovery “for some
measure of lost earnings at United States pay rates”); Bordejo v. Exclusive Builders Inc.,

were dicta. In any event, to the extent that the courts’ statements were dicta, the reasoning
behind them is instructive to analyzing the question present in this case.
5

The Rosa court provided an exception to this general rule, allowing for the recovery of lost
United States wages in situations where the employer knew or should have known of the
unauthorized alien’s immigration status, “yet hired or continued to employ him nonetheless.”
152 N.H. at 15. This exception is not applicable here.
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__F.Supp.2d__, 2011 WL 3667570, at *7 (M.D.Pa. 2011) (finding Pennsylvania’s stance
toward recovery of workers’ compensation to be persuasive regarding recovery for personal
injury and predicting that “the Pennsylvania Supreme Court would not preclude [Bordejo’s]
claims for lost earnings as a matter of law”); Kalyta v. Versa Prods., Inc., No. 07-1333
(MLC), 2011 WL 996168, at *3 (D.N.J. March 17, 2011) (finding workers’ compensation
system comparable to personal injury and holding “[n]either IRCA nor New Jersey law
prohibits lost wages damages for undocumented workers in the personal injury tort context”);
Tyson Foods, Inc. v. Guzman, 116 S.W.3d 233, 244 (Tex. App. 2003) (“Texas law clearly
allows for the recovery of damages for lost earning capacity, regardless of the claimant’s
citizenship or immigration status.”).
This court predicts that the Illinois Supreme Court would apply the rationale of
Hoffman Plastic and the Supreme Court’s interpretation of the congressional objectives of
IRCA to conclude that Wielgus’s status as an undocumented alien precludes the recovery of
damages based on the loss of future United States earnings—to which he would not lawfully
be entitled because it would be based on compensation for future impermissible work—but
does not preclude the recovery of damages for lost future earnings or earning capacity based
on what he could legitimately earn in his country of lawful residence. Such an approach
fairly balances the federal government’s immigration policies, which, as expressed in IRCA
and interpreted by Hoffman Plastic, is to discourage the employment of unauthorized aliens,
with the objectives of a common law tort action, which is to ensure that a wronged plaintiff

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is made whole following a defendant’s tortious conduct. Awarding future earnings at a
United States pay rate necessarily assumes an undocumented alien’s future employment in
the United States, which is impermissible under federal immigration law. See Rosa, 152
N.H. at 15 (“Allowing an illegal alien to recover lost United States earnings creates a
paradoxical situation in which an illegal alien can lawfully become entitled to the value of
United States wages only if he becomes physically unable to work.”).

But where a

defendant’s tortious conduct results in the diminishment of an unauthorized alien’s future
earning capacity, he should not be precluded from recovering the lost future earnings he
could earn lawfully in his country of residence.
Having determined that the Illinois Supreme Court would reach this conclusion, this
court must now resolve the question of whether IRCA preempts Illinois law allowing an
undocumented alien to recover future earnings at the alien’s residence country rate. Federal
preemption of a state law occurs when that state law conflicts with a federal law. Mason v.
SmithKline Beecham Corp., 596 F.3d 387, 390 (7th Cir. 2010). The constitutional basis for
federal preemption is found in the Supremacy Clause, which states that “the Laws of the
United States . . . shall be the supreme Law of the Land [.]” U.S. Const. art. VI, cl. 2.
Preemption comes in three forms: (1) express preemption, which occurs when Congress
clearly declares its intent to preempt state law; (2) field preemption, which occurs when the
“structure and purpose” of federal law demonstrates Congress’s intent to preempt state law;

13

and (3) conflict preemption, which occurs when there is an actual conflict between state and
federal law such that it is impossible to obey both. See Mason, 596 F.3d at 390.
IRCA does not explicitly preempt Illinois from allowing undocumented aliens to
recover lost future earnings at country-of-residence wages. IRCA contains an express
preemption clause stating that, “[t]he provisions of this section preempt any State or local law
imposing civil or criminal sanctions (other than through licensing and similar laws) upon
those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”
8 U.S.C. § 1324a(h)(2). The plain language of this section is directed at state or local laws
that impose fines, civil or criminal, for hiring undocumented aliens. A state law allowing
recovery for lost future earnings for tort injuries is not a “[s]tate or local law imposing civil
or criminal sanctions” for the employment of “unauthorized aliens,” id., that would fall under
IRCA’s express preemption clause. See Madeira, 469 F.3d at 239. While a law imposing
sanctions seeks to impose a penalty, see Economy Packing, 387 Ill.App.3d at 290 (citing
Black’s Law Dictionary 1341 (7th ed. 1999)), a regime allowing damages for tort injuries
seeks to make a plaintiff whole, see McLane, 131 Ill.2d at 523-24. Accordingly, this court
finds that IRCA does not explicitly preempt Illinois law allowing undocumented aliens to
recover damages for lost earnings at residence country wage rates.
Nor has Congress implicitly preempted state law by entirely occupying the field of
common law torts. Field preemption occurs “if federal law so thoroughly occupies a
legislative field as to make reasonable the inference that Congress left no room for the States

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to supplement it.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (internal
quotation marks omitted). It is well-established that immigration is a field in which the
federal government is dominant. See Hines v. Davidowitz, 312 U.S. 52, 62 (1941) (“[T]he
supremacy of the national power in the general field of foreign affairs, including power over
immigration, naturalization and deportation, is made clear by the Constitution.”). But IRCA,
while addressing the hiring of undocumented aliens, provides nothing that would indicate
congressional intent to supersede state tort laws allowing for recovery of lost future earnings.
As such, IRCA does not implicitly preempt Illinois law allowing undocumented aliens to
recover damages for lost earnings at residence country wage rates.
Finally, the court concludes that allowing Wielgus to recover lost future earnings at
his residence country wage rates does not so conflict with IRCA policy warranting an
inference of preemption. Conflict preemption arises when it is either physically impossible
to comply with both federal and state law, or when state law stands as an obstacle to the
accomplishment of congressional objectives. See Time Warner Cable v. Doyle, 66 F.3d 867,
875 (7th Cir. 1995). As discussed above, while the Hoffman Plastic Court noted that IRCA
“forcefully made combating the employment of illegal aliens central to [t]he policy of
immigration law,” 535 U.S. at 147 (internal quotation marks omitted), there is no indication
in IRCA—and the defendants have identified none—that Congress intended to deprive
undocumented aliens of their right to sue for personal injuries in state courts or to preclude
them from recovering damages for lost wages calculated at a rate at which the unauthorized

15

alien would lawfully be entitled to earn them. Nor would allowing such recovery make it
impossible to enforce federal immigration policy or stand as an obstacle to the
accomplishment of that policy. It cannot be said that allowing the recovery of lost future
earnings calculated at an unauthorized alien’s residence country’s wage rate would create a
significant financial incentive for an employer to hire an undocumented alien or for an
unauthorized alien to unlawfully enter the United States.
Such a conclusion is not inconsistent with Hoffman Plastic. Hoffman Plastic did not
purport to preclude an unauthorized alien from recovering earnings where a workplacerelated injury has impeded the alien’s ability to earn wages lawfully outside the United
States. The Hoffman Plastic Court was concerned with awarding backpay “for years of work
not performed, for wages that could not lawfully have been earned, and for a job obtained in
the first instance by criminal fraud.” 535 U.S. at 149 (emphasis added). While IRCA does
not make it a crime for an unauthorized alien to work without proper documentation, the
presence of an alien in this country without authorization is, of course, impermissible under
federal law. That is the reason why Wielgus cannot recover any lost United States wages.
That said, common law duties owed to a worker-employee are unrelated to, and do not
depend on, the worker’s compliance with federal immigration laws. Ultimately, workplacerelated injuries reduce or eliminate a plaintiff’s ability to work not only in the United States,
but anywhere that he might otherwise engage in lawful employment. Allowing Wielgus to
recover lost future earnings at his residence country rates would not stand as an obstacle to

16

fulfilling congressional immigration policy as interpreted in Hoffman Plastic. Accordingly,
the court concludes that allowing an unauthorized alien to recover these types of damages
does not conflict with the policies promoted by IRCA.
Having concluded that Wielgus is entitled to seek lost future earnings at his residence
country rates, the court denies the defendants’ request to bar him from introducing any
evidence of lost future earnings at trial. (R. 199, Defs.’ Mot. ¶ 9.) The defendants correctly
state in their response brief (R. 234 at 13), that Wielgus cannot recover damages for lost
future earnings or lost future earnings capacity based on speculative evidence. See Saad v.
Shimano American Corp., No. 98 C 1204, 2000 WL 1036253, at *24-25 (N.D. Ill. July 24,
2000) (citing LaFever v. Kemlite Co., 185 Ill.2d 380, 407 (1998) (“[w]hile only ‘some
evidence’ is needed to warrant an instruction, inherently that evidence must be reliable and
grounded in more than mere possibilities”); Christou v. Arlington Park–Washington Park
Race Tracks Corp., 104 Ill.App.3d 257, 260 (1st Dist.1982) (“[t]estimony as to loss of
earnings which is merely speculative, remote or uncertain is improper”)). And because
Wielgus has failed to identify any evidence of lost income outside the United States during
discovery, the defendants argue that Wielgus must be barred from recovering any economic
damages. (R. 199, Defs.’ Mot. ¶ 9.) If the court accepted the defendants’ argument in the
context of a motion in limine here, the court would necessarily have to reach the conclusion
that Wielgus is not entitled to any economic damages in this case. The court is not willing
to do so at this time.

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Ultimately the defendants’ objective is to eliminate the issue of economic damages
from the jury’s consideration. But in Illinois, “[t]he quantum of proof necessary to prevail
on a claim is different . . . from the measure of evidence needed merely to send an issue to
the jury.” LaFever, 185 Ill.2d at 407 (emphasis omitted). A plaintiff must present “some
evidence probative of [the] claim” to merit an instruction to send an issue to the jury, and the
trial court need not “be convinced of the persuasiveness of that evidence” before that
evidence is admitted for consideration by the jury. Id. Moreover, expert testimony is not
necessary to establish loss of future earning ability. Id. Rather, the plaintiff’s testimony
regarding the nature of his injuries and the expected permanent duration of these injuries can
be sufficient to take “the question of impaired earning capacity to the jury.” Id.
Given this liberal standard, it would be premature for the court to decide on the issue
of whether Wielgus is entitled to have the jury consider the issue of lost income. The more
prudent approach to take here is for the defendants to raise the issue of whether the jury
should consider the issue of lost income or to move for a directed finding that Wielgus is not
entitled to any lost future income after the close of Wielgus’s case-in-chief. Wielgus must
be mindful of his discovery responses in this case and that he will not be allowed to introduce
any evidence not disclosed to the defendants if such evidence should have been disclosed
during discovery.

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Conclusion
For the foregoing reasons, Wielgus’s second motion in limine (R. 206) is granted in
part and denied in part, and defendants’ motion in limine number 32 (R. 199) is granted in
part and denied in part.
ENTER:

_________________________________
Young B. Kim
United States Magistrate Judge

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