Company fails to slash $1.4M award in immigrant death suit Company fails to slash award in wrongful death

It argued El Salvadoran here illegally would have made less in home country

After a Harris County jury awarded the family of a 21-year-old garbage collector more than $1.4 million in a wrongful death lawsuit, the penalized company filed an appeal based on an unusual legal argument.

Attorneys for Republic Waste Services argued that members of the jury should have heard evidence that Oscar Alfredo Gomez was an illegal immigrant from El Salvador before they calculated how much his family was due in compensation.

Specifically, the attorneys contend Gomez likely would have been deported in an Immigration and Customs Enforcement raid of the company's Houston office two weeks after his death. Consequently, the attorneys say, the family's compensation should be based on Gomez's projected future wages in El Salvador — some $1,000 annually — instead of his U.S. earnings at the time of his death, which were $33,000 annually.

The First Court of Appeals in Houston disagreed with the company's attorneys in an opinion issued Jan. 20, ruling that the trial court correctly used its discretion to exclude evidence about Gomez's immigration status. The appeals court called the company's argument that Gomez would have been deported in the ICE raid "speculative" and affirmed the judgment against the company.

"We believe this is a landmark decision because if undocumented workers are working and they get injured or killed, they deserve the same rights as anyone else," said Houston attorney Benny Agosto Jr., who represented the Gomez family in the lawsuit. "The issue of immigration is a separate issue. … That's why this case is so important."

Status exploited?

Laura Boston, with the Houston Interfaith Worker Justice Center, said the company's legal argument illustrates how some employers try to exploit workers' immigration status.

"Their argument that they should pay less because he could have been deported just shows that ... companies are looking out for themselves at the end of the day," she said.

Gomez was killed Jan. 15, 2007, when he was run over by a garbage truck driven by another Republic Waste employee. After his death, the company learned that Gomez falsified his immigration paperwork and used someone else's Social Security number to get his job.

Gomez was killed Jan. 15, 2007, when he was run over by a garbage truck driven by another Republic Waste employee. After his death, the company learned that Gomez falsified his immigration paperwork and used someone else's Social Security number to get his job.

Gomez's common-law wife, who lives in Houston with their daughter, and his father in El Salvador filed a wrongful death lawsuit against the truck driver and Republic Waste, alleging negligence.

Before the trial, attorneys for Gomez's family filed a motion asserting his immigration status was irrelevant. But attorneys for the company disagreed, arguing his status as an illegal immigrant could affect his future lost income.

After the ICE raid of the company's Houston office weeks after Gomez's death, some 30 employees never returned to work, Republic Waste's attorneys said. The firm argued that Gomez "certainly" would have been removed that day because he had fake employment documents, according to the opinion by the appeal's court.

Higher appeal weighed

The trial court sided with the Gomez family's attorneys, saying it was "gross speculation" as to whether Gomez would have been deported in the raid.

The jury found in favor of the Gomez family, awarding them more than $1.4 million, including more than $1,275,000 for loss of future wages. That judgment was affirmed by the appeals court in the Jan. 20 decision.

But attorneys for Republic Waste, which is weighing an appeal to the Texas Supreme Court, have interpreted the decision as a victory for employers sued by illegal immigrants for wrongful death or injury.

Although they lost the Gomez case, the appeals court ruled that immigration evidence can be a relevant factor in calculating the loss of future wages, which was the crux of the company's legal argument, said Connie Pfeiffer, the company's attorney.

Trina Realmuto, an attorney with the National Immigration Project of the National Lawyer's Guild, said she saw little in the appeals court decision for the companies to celebrate. Any thoughtful trial court judge will see immigration evidence like that in the Gomez case was inflammatory, she said, and will rule to exclude it.

"Companies can't kill someone and not be responsible for it," Realmuto said. "This decision holds the company responsible for the death of Mr. Gomez. That's the bottom line."

susan.carroll@chron.com