The opinion of the court was delivered by: Magistrate Judge Young B. Kim
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,*fn1 may recover 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.
Wielgus is a Polish national who in 2000, gained entry into the United States on a six-month 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.*fn2 (R. 154-1 at ¶ 7.) employed by this chapter by the Attorney General." 8 U.S.C. § 1324a(h)(3).
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 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 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 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 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 work-related injury. As a consequence, the award of [permanent total disability] benefits to the claimant is separate and distinct from any continuing violation ...