Noe Escamilla v. Shiel Sexton Company, Inc.

FILED
Mar 31 2016, 8:05 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy F. Devereux Rick D. Meils
Daniel A. Ladendorf Neil A. Davis
Ladendorf Law John W. Mervilde
Indianapolis, Indiana Meils Thompson Dietz & Berish
Indianapolis, Indiana

ATTORNEY FOR THE AMICUS CURIAE
Alexander Jesus Limontes
Indiana Trial Lawyers Association
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Noe Escamilla, March 31, 2016
Appellant-Plaintiff, Court of Appeals Case No.
54A01-1506-CT-602
v. Appeal from the Montgomery
Superior Court
Shiel Sexton Company, Inc., The Honorable Heather L.
Appellee-Defendant. Dennison, Judge
Trial Court Cause No.
54D01-1107-CT-562

May, Judge.

Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016 Page 1 of 24
[1] In this interlocutory appeal from the trial court’s pre-trial orders regarding the

admissibility of evidence, the parties raise a number of broad policy questions

regarding whether and how an injured plaintiff’s status as an undocumented

immigrant should impact that plaintiff’s ability to recover future lost wages

from an alleged tortfeasor. We decline their invitations to make sweeping

pronouncements about the rights of immigrants, however, and rule narrowly on

the evidentiary issues raised. Although we disagree with part of the trial court’s

reasoning, we affirm its denial of Noe Escamilla’s motion in limine and its grant

of Shiel Sexton’s motion to exclude Escamilla’s experts, and we remand for

further proceedings in accordance with our opinion. 1

Facts and Procedural History
[2] Escamilla was born in Mexico. When he was a teenager, his parents moved the

family, including Escamilla, to the United States. Escamilla lived with his

family in Nevada and began working as a masonry laborer. At some point

thereafter, he moved to Indiana, where he again found work with masonry

companies. Escamilla had a social security number that he used to pay taxes

on his income, but that number was not connected to him. He was, at that

time, an undocumented immigrant working in the United States. 2

1
We heard oral argument on this cause at the Statehouse on January 6, 2016. We commend counsel for
their insightful discussion of the relevant law and facts.
2
In 2011, Escamilla married a United States citizen and together they now have three children who are
United States citizens. Escamilla has now filed paperwork with the United States government requesting
permission to remain in the country, but his petition remains pending.

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[3] In December of 2010, Noe Escamilla, an employee of Masonry By Mohler,

Inc., was assigned to work at a construction site where Shiel Sexton Company,

Inc. was the general contractor. On December 9, while part of a crew lifting a

heavy piece of stone, Escamilla slipped on ice and was injured. Doctors

permanently restricted Escamilla from lifting more than twenty pounds, which

prevents his continued employment as a masonry laborer.

[4] Escamilla sued Shiel Sexton, seeking medical expenses, lost wages, and future

lost income. He planned to call expert witnesses to testify his injuries had

permanently impaired his earning capacity as a masonry laborer in the United

States. Escamilla then filed a motion in limine to prevent mention of his

immigration status. Shiel Sexton moved to exclude the expert witnesses

Escamilla planned to call because those experts would testify only about the

income Escamilla could have made in the United States as a masonry laborer.

Shiel Sexton asserted testimony about Escamilla’s earning capacity should be

limited to the income he could earn in Mexico, which is his country of origin,

because Escamilla had no legal right to reside or work in the United States at

the time of his accident.

[5] The trial court denied Escamilla’s motion in limine and granted Shiel Sexton’s

motion:

Escamilla is a citizen of Mexico. He is not a legal resident of the
United States and has no legal authority to hold employment in
the U.S. Though there is evidence that suggests that he intends
to remain in the U.S. as long as he is permitted, even his own
witness concedes that he may be permitted to remain in the

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 country after his pending application is approved. 3 Additionally,
he has not even filed a formal request for permission to work in
the United States. Thus, he would be precluded from mitigating
his claim for lost future wages in this matter since he cannot
legally work in the United States. Moreover, it is evident that
Escamilla violated federal law in order to secure employment
with the Company by providing false documentation of his
ability to be legally employed in the United States.

Both parties concede that there is no controlling Indiana law on-
point. The Court, having reviewed the law cited by the parties
and other relevant cases, finds that the Supreme Court of the
United States provided the best guidance in Hoffman Plastic
Compounds, Inc., v. National Labor Relations Board, 535 U.S.
137 (2002). In Hoffman, the employee was an illegal alien who
had provided false documentation in support of his application
for employment with Hoffman. Thereafter, the employee was
terminated for engaging in union organization practices and the
National Labor Relations Board (“NLRB”) ordered his
reinstatement and the payment of back wages. The Supreme
Court reversed that decision, based on federal preemption and
public policy.

Though the issues are not exactly the same, the analogy is
instructive. Much of the Hoffman decision is based on the fact
that the employee had provided false documentation of his ability
to work in the United States, which is criminalized by IRCA, the
Immigration Reform and Control Act. The court determined
that an employee who was “never lawfully entitled to be present
or employed in the United States” is not entitled to claim back
pay. 535 U.S. at 146. Further, allowing the payment of back
wages “not only trivializes the immigration laws, it also

3
Long after the incident giving rise to this matter, Escamilla sought permission from the United States
Government to remain in the country. At the time of oral argument, the application was pending.

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 condones and encourages future violations.” Id. at 150. The
cases relied upon by Escamilla are distinguishable wherein there
was no allegation that the employee had provided false
documentation of his ability to be present or to be employed in
the United States. Such is not the case here. Clearly, Escamilla’s
immigration status is relevant to the issue of damages on his
claim for lost future income. Therefore, the jury should be
entitled to hear evidence regarding Escamilla’s immigration
status and his motion in limine should be and hereby is
DENIED.

Company next argues that Escamilla should be precluded from
presenting evidence by his proffered experts, Sara Ford and
Ronald Missun. Based upon the Wielgus case, cited by both
parties, Escamilla’s ability to recover for lost future wages is
limited to “what he could legitimately earn in his country of
lawful residence.” Wielgus v. Ryobi Technologies, Inc., 875 F.
Supp.2d 854, 862 (N.D. Ill. 2012). Thus, Escamilla’s claim for
lost future income is limited to what he could legitimately earn in
Mexico, his country of lawful residence and any evidence
regarding potential future earnings in the United States would be
inadmissible.

Sara Ford has apparently not considered what Escamilla’s
legitimate earnings might be in Mexico. Rather, she has based
her projections on what he could earn in the United States.
However, since he is not legally permitted to work in the U.S.,
and because he supplied false documentation of his ability to do
so, he is precluded from going forward on a claim for future lost
income in the United States. Accordingly, her testimony is not
relevant and shall be EXCLUDED.

Likewise, Escamilla seeks to have Ronald Missun testify
regarding the present value of the future lost wages based on Sara
Ford’s irrelevant calculations of United States earnings.

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 Therefore, his testimony is also not relevant and shall be
EXCLUDED.

(App. at 200-02) (footnote and emphases in original). The trial court certified

that order for interlocutory appeal and we accepted jurisdiction. 4

Discussion and Decision
[6] Escamilla appeals the trial court’s in limine order that: (1) evidence of his

immigration status would be admissible, and (2) expert testimony about “future

lost wages” based on what he could have made working in the United States

would not be admissible. 5 Orders in limine are “not a final determination of the

admissibility of the evidence referred to in the motion.” State v. Lewis, 883

4
In its Brief of Appellee, Shiel Sexton asserts we should strike pages 238-263 of Escamilla’s Appendix of
Appellant, because those documents were not presented to the trial court. Generally, we consider only
evidence and arguments presented to the trial court when we review the correctness of a trial court’s decision.
See, e.g., Luster v. State, 578 N.E.2d 740, 746 (Ind. Ct. App. 1991) (“An appellant may not attempt to build a
new record on appeal to support his position with evidence that was never admitted in the court below.”).
Because the pages to which Shiel Sexton points do not appear to have been provided to the trial court during
the pre-trial proceedings, we may not consider them on appeal and we strike them from the Appendix of
Appellant. See Chesterfield Management, Inc. v. Cook, 655 N.E.2d 98, 101 (Ind. Ct. App. 1995) (striking from
Appendix documents that had not been placed before trial court).
5
Escamilla also challenges as unsupported by the record the following factual finding in the trial court’s
order: “Moreover, it is evident that Escamilla violated federal law in order to secure employment with the
Company by providing false documentation of his ability to be legally employed in the United States.” (App.
at 200.) There seems to be no disagreement that Escamilla filed his taxes on the income earned at Masonry
By Mohler using a social security number that was not his. But the Record before us includes no evidence he
“provid[ed] false documentation” to Masonry By Mohler. (Id.) Thus, we agree that finding is unsupported
by the Record.
The trial court relied, in part, on that finding when it determined Escamilla was “precluded from going
forward on a claim for future lost income in the United States,” (Id. at 202), “because he supplied false
documentation of his ability to” work in the United States. (Id. at 201-02.) Nevertheless, we need not
reverse because that finding is harmless. App. R. 66 (appellate court does not reverse for harmless error).
Escamilla’s ability to claim future lost earnings is controlled by his ability to demonstrate, at the time of trial,
whether and where he can work. Thus, the court’s finding about the past is of no consequence and we need
not reverse based thereon.

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 N.E.2d 847, 851 (Ind. Ct. App. 2008). Nevertheless, pursuant to Indiana

Appellate Rule 14(B), we have jurisdiction to review in limine orders if the trial

court certifies the order for appeal and we accept jurisdiction. Id. Both of those

procedural pre-requisites are met and we have jurisdiction to review the pre-trial

order. See id.

The granting or denying of a motion in limine is within the sound
discretion of the trial court. The granting of a motion in limine is
an adjunct of the inherent power of trial courts to admit and
exclude evidence. We apply the standard of review applicable to
questions concerning the admission of evidence, that is, abuse of
discretion. An abuse of discretion involves a decision that is
clearly against the logic and effect of the facts and circumstances
before the court.

Id. (internal citations and quotations omitted).

[7] As a preliminary matter, we note a trial court’s evidentiary rulings are

controlled by the Indiana Rules of Evidence. Pursuant to those rules,

“[i]rrelevant evidence is not admissible” and save a few exceptions, “[r]elevant

evidence is admissible.” Evid. R. 402. Evidence is relevant if “it has any

tendency to make a fact more or less probable than it would be without the

evidence” and “the fact is of consequence in determining the action.” Evid. R.

401. A trial court “may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

presenting cumulative evidence.” Evid. R. 403.

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[8] The parties disagree about the types of evidence that should be admissible to

prove Escamilla’s claim for future lost wages based on his impaired earning

capacity. “The gist of the element of impaired earning capacity is a showing of

adverse effect on a plaintiff’s vocation.” Montgomery Ward & Co. v. Gregg, 54

N.E.2d 1145, 1164 (Ind. Ct. App. 1990), reh’g denied, trans. denied. One may

recover such damages if an injury “causes a career change” or precludes a

preferred field of employment. Id. Calculating damages for impaired earning

capacity involves assessing “the difference between the amount which the

plaintiff was capable of earning before the injury and the amount which he is

capable of earning thereafter.” Scott v. Nabours, 156 Ind. App. 317, 321, 296

N.E.2d 438, 441 (1973).

[9] Proving impaired earning capacity requires “more than mere proof of

permanent injury and pain.” Id. at 320, 296 N.E.2d at 441. A plaintiff must

also present “evidence of probative value which relates the injury to an inability

to engage in one’s vocation.” Id. at 320-21, 296 N.E.2d at 441. “Like other

damage issues this issue may be proven by both expert and non-expert

testimony.” Id. at 321, 296 N.E.2d at 441. But the evidence must “permit the

jury to arrive at a pecuniary value of the loss.” Barker v. Cole, 396 N.E.2d 964,

968 (Ind. Ct. App. 1979), reh’g denied. The jury may not be left to arrive at its

decision based on speculation and conjecture. Kirk v. Harris, 173 Ind. App. 445,

449, 364 N.E.2d 145, 148 (1977), reh’g denied, superseded on other grounds by

amendment of Trial Rule 38.

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[10] Shiel Sexton asserts evidence of future wages Escamilla could have earned in

the United States is speculation because Escamilla has no legal right to work in

the United States. Escamilla notes he has never worked in Mexico and has no

intention of returning to Mexico, so testimony of future wages in Mexico is also

speculative.

[11] The “amount that the injured party would have earned but for the injury is not

susceptible to precise measurement in a personal injury action involving a claim

for lost,[sic] future earning capacity.” 22 Am. Jur.2d § 166 (2013). See also

Republic Waste Servs., Ltd. v. Martinez, 335 S.W.3d 401, 407 (Tex. App. 2011)

(“The amount of income that may be earned in the future by a plaintiff or, as in

this case, by a decedent is always uncertain, and must be left largely to the

judgment and discretion of the jury.”).

[12] The inability to measure precisely is not unique to Escamilla or to

undocumented immigrants. See, e.g., Berman v. Cannon, 878 N.E.2d 836, 842-43

(Ind. Ct. App. 2007) (in which economics professor testified about the lost

earning capacity of a homemaker with no prior employment history). And see

Rieth-Riley Const. Co. v. McCarrell, 163 Ind. App. 613, 620, 325 N.E.2d 844, 849

(1975) (holding difficulties in measuring lost wage damages for plaintiff

unemployed at the time of the injury does not preclude recovery of lost wages).

Precise measurement is not possible because “the measure of the plaintiff’s

decreased capacity to earn money requires a prediction as to future

impairment,” 22 Am. Jur.2d § 154, life expectancy, and the job market, among

other factors.

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[13] This inability to foresee the future is why “[t]here is no fixed rule for estimating

the amount of damages to be recovered for loss or diminution of earning

capacity.” Id. at § 159. Rather, the issue is left to the jury, which is expected to

award “fair and reasonable compensation” in light of the injured person’s

situation. Id. In order for a jury to award compensation that is fair and

reasonable in light of the circumstances, that jury must be presented all

evidence of the plaintiff’s circumstances that is relevant to making that

determination:

Although no general rule can be formulated that would properly
control the admission of evidence to prove a person’s future
earning capacity, any evidence is admissible that would fairly
indicate the person’s present earning capacity and the probability
of its increase or decrease in the future, including evidence of
age, intelligence, habits, health, occupation, life expectancy,
ability, probable increase in skill, and rates of wages paid
generally to those following the person’s vocation.

Id. at § 754. See also id. at § 159 (jury should consider “what the plaintiff’s

income would probably have been, how long it would have lasted, and all the

contingencies to which it was liable”).

[14] Because the amount of damages to award for lost future income is a question of

fact historically left to the jury, we decline to determine as a matter of law

where, but for his injury, Escamilla might have worked in the future. 6 See, e.g.,

6
The trial court relied on Hoffman Plastic Compounds, Inc., v. National Labor Relations Board, 535 U.S. 137
(2002), in ordering Escamilla could not claim future income based on United States wage rates. Hoffman is

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 Ayala v. Lee, 215 Md. App. 457, 480 n.19, 81 A.2d 584, 598 n.19 (Md. App.

2013) (“we believe that a blanket rule prohibiting United States earnings

improperly ignores the reality of a plaintiff’s living situation, regardless of his or

her legal status”). Instead, we defer to the jury’s ability to weigh all the

evidence presented by the parties at trial and to determine the “fair and

reasonable compensation” due Escamilla in light of the probabilities of the

multiple contingencies that exist. See 22 Am. Jur.2d § 159.

[15] A plaintiff’s status as an undocumented immigrant is just another fact for the

jury to consider as it makes its damages determination:

The question of whether a party is entitled to United States
earnings or home country earnings is a question of fact, because
it necessarily depends on the jury determining the likelihood of
whether or not the party will remain in the United States for the
duration of the awarded compensation. In other words, if it is
unlikely that a plaintiff will be deported or if he shows a long
history of working in the United States, a Unites States pay rate
is more appropriate. If there is evidence that the plaintiff is likely
to return to his home country, whether by choice or by
deportation, a country of origin pay rate is more appropriate.

distinguishable not just because of the factual differences discussed above, see supra n.3, but also because of
the type of damages being awarded. The NLRB ordered Hoffman to “offer reinstatement and backpay” to a
worker who could not legally work in the United States. Hoffman, 535 U.S. at 140. Escamilla is not being
reinstated and his damages are not “wages;” rather, he is being compensated for his inability to continue the
same kind of work he had been doing. See Crenshaw v. McMinds, 456 N.E.2d 433, 434 (Ind. Ct. App. 1983)
(“It is not the actual lost future earnings that constitutes the damage element . . . . It is rather the loss of
earning capacity that is the proper element of damages.” (emphasis in original)), reh’g denied. And see Ayala v.
Lee, 215 Md. App. 157, 477, 81 A.3d 584, 596 (Md. App. 2013) (“neither the [Immigration Reform and
Control Act of 1986] nor Hoffman mandates denying awards of lost wages or medical expenses to
undocumented immigrant employees solely because of their immigration status”).

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 Ayala, 81 A.3d at 598 (internal citations omitted). See also Ortiz v. Cooper Tire &

Rubber Co., 2015 WL 1498713 at *6 (W.D. Okla. 2015) (holding recovery of

compensatory damages by an undocumented alien is “a matter of factual

proof”).

[16] With this legal landscape in mind, we turn to the two issues raised by the

parties: whether the court abused its discretion by excluding the testimony of

Escamilla’s expert witnesses, and whether the court abused its discretion by

permitting the admission of testimony about Escamilla’s status as an

immigrant.

Expert Witnesses

[17] The trial court ruled the evidence from Escamilla’s proposed expert witnesses

was not relevant because Escamilla’s damages could not be based on United

States wages when he could not work legally in the United States. As we have

explained, a fact-finder may award damages for lost earning capacity to an

undocumented immigrant based on United States wages if the evidence

presented at trial supports such a finding. We therefore cannot affirm the trial

court’s decision based on its stated reason.

[18] Nevertheless, we affirm the court’s in limine order excluding Escamilla’s experts

and their report on another basis. At a deposition of one of those experts, Sara

Ford, the questioning revealed Ford had not taken into account the fact that

Escamilla was an undocumented immigrant:

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 Q Did your analysis take into account whether or not he’s a
U.S. citizen?

A No. My analysis accounts for federally mandated benefits,
and I can see that he was paying into the tax program.

*****

Q You understand that he’s not a U.S. citizen, correct?

A I understand that.

Q You understand that he could be deported. Yes?

A I don’t have a further understanding of how that works. I
can’t answer that question yes or no.

(App. at 34.) As such, the report Ford and Mussin prepared had not been

adequately tied to the facts of Escamilla’s case. Cf. Ortiz v. Cooper Tire & Rubber

Co., 2015 WL 1498713 at *8-9 (W.D. Ok. 2015).

[19] In Ortiz, a van wrecked and an injured passenger, Morales, requested damages

for lost future wages. He hired experts to testify thereto. Cooper Tire asserted

the expert opinions as to lost future wages should be excluded as “unreliable

because they fail to account for factors that are unique to Carlos Morales, such

as his immigration status, illegal United States employment, and possible

deportation or voluntary return to Guatemala.” Id. at *7.

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[20] To support the admissibility of the expert’s opinion, Morales filed an affidavit

from his expert, and the court provided the following description of the affidavit

in its opinion:

[The expert] explains his decision to utilize wage rates from
employment at National Beef Packing Company based on
immigration statistics regarding undocumented workers in the
national economy, Mr. Morales’ employment history and past
behavior, a “statistically insignificant” possibility of deportation,
and a lack of evidence that Carlos Morales would have
considered returning to Guatemala if the accident had not
occurred. After considering relevant economic factors, [the
expert] concludes that “more likely than not, the earning capacity
Mr. Morales lost due to the accident prevented employment
which otherwise would have occurred in the United States,
notwithstanding his civil immigration status.”

Id. (internal citations omitted). The court held the expert’s report was

admissible because the affidavit “reliably linked” the expert’s opinion to the

facts of the case at hand. Id.

[21] The report prepared in support of Escamilla’s claim had no such support.

Rather, the expert testified she had not given any consideration to his status as

an undocumented immigrant or the impact that fact might have on his claim.

Thus the report was inadequately tied to the facts of Escamilla’s case to be

admissible.

Immigration Status

[22] The trial court ruled it would not exclude evidence of Escamilla’s status as an

immigrant because “Escamilla’s immigration status is relevant to the issue of
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 damages on his claim for lost future income.” (App. at 200.) As is true with all

forms of evidence, Escamilla’s status as an immigrant should be excluded if it

has no relevance, or if the risk of prejudice outweighs its probative value. Evid.

R. 403. See also Crenshaw v. McMinds, 456 N.E.2d 433, 434 (Ind. Ct. App. 1983)

(trial court committed reversible error by admitting evidence of decedent’s

felony conviction when that fact was not relevant to decedent’s lost earning

capacity and was highly prejudicial), reh’g denied.

[23] Shiel Sexton acknowledges the relevance of a plaintiff’s status as an

undocumented immigrant depends on the specifics of that plaintiff’s claim for

damages:

If . . . Escamilla is not allowed to introduce any lost future
earnings claim, then Shiel Sexton cannot conceive of a basis on
which it will introduce evidence of Escamilla’s undocumented
status. Even if the Court were to allow Escamilla to claim an
entitled [sic] to loss [sic] future earnings at Mexican income rates
only, then it is not clear how his immigration status would be
admissible. Only if Escamilla is allowed to claim an entitlement
to a loss of earning capacity at United States wages would Shiel
Sexton seek to introduce evidence of Escamilla’s apparent
undocumented status.

(Br. of Appellee at 11.) We agree, and hold Escamilla’s immigration status is

relevant to a claim of lost earning capacity only if: (1) Escamilla claims lost

earning capacity in United States wages, and (2) Escamilla’s immigration status

leaves him with any risk of deportation. See, e.g., Velasquez v. Centrome, Inc., 183

Cal. Rptr. 3d 150 (Cal. Ct. App. 2015) (evidence of immigration status is

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 irrelevant in personal injury action when plaintiff does not claim damages for

lost earnings or earning capacity). And see Ayala, 81 A.3d at 597 (“Immigration

status is relevant to a claim for lost wages for the simple reason that the legal

ability to work affects the likelihood of future earnings in the United States.”).

[24] Escamilla and the Indiana Trial Lawyers Association argue that, even if his

immigration status is relevant, evidence of his status is so prejudicial in today’s

political climate that its probative value is outweighed by the prejudicial effect.

We acknowledge that other courts have so held. See, e.g., Salas v. Hi-Tech

Erectors, 230 P.3d 583, 587 (Wash. 2010) (en banc) (holding evidence of

immigration status was relevant to lost future earnings, but concluding “with

regard to lost future earnings, the probative value of immigration status, by

itself, is substantially outweighed by its risk of unfair prejudice”).

[25] However, it is not apparent how Escamilla’s trier of fact might accurately

determine his future earning capacity without that knowledge, as it must

determine whether to award lost earnings based on United States wages,

Mexican wages, or some other standard. The prejudicial effect of that evidence

therefore currently does not outweigh its probative value. As Escamilla is

claiming lost earning capacity based on United States wages and has an

immigration status that might leave him with some risk of deportation, we

affirm the trial court’s denial of Escamilla’s motion to exclude evidence of his

immigration status. Should Escamilla’s immigration status change before trial,

such that he no longer is at risk of deportation, then the trial court would need

to reevaluate the relevance of the evidence in light of our analysis.

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 Conclusion
[26] Based on the circumstances at the time of the trial court’s order, we affirm the

grant of Shiel Sexton’s motion to exclude the testimony and report from

Escamilla’s expert witnesses, we affirm its denial of Escamilla’s motion in limine

to exclude evidence of his status as an undocumented immigrant, and we

remand for further proceedings consistent with this opinion.

[27] Affirmed and remanded.

Bradford, J., concurs.

Baker, J., dissents with separate opinion.

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 IN THE
COURT OF APPEALS OF INDIANA

Noe Escamilla, Court of Appeals Case No.
54A01-1506-CT-602
Appellant-Plaintiff,

v.

Shiel Sexton Company, Inc.,
Appellee-Defendant.

Baker, Judge, dissenting.

[28] When the plaintiff in a civil action is also an undocumented immigrant, the

majority concludes that juries and experts cannot determine an appropriate

award of damages for loss of future income without first considering the

plaintiff’s immigration status. I do not see how such evidence would be of any

use in arriving at a more appropriate award of damages, and I believe that it

will likely result in prejudice to the injured party and serve as a bad incentive for

those who employ undocumented immigrants. I respectfully dissent.

[29] Of the many factors that the majority recognizes as relevant to the calculation

of damages for loss of future income, one’s present immigration status is

certainly the least relevant. This is in part because, unlike other factors, an
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 individual’s ability to remain in this country is a function of the law, and

historically, immigration law has been subject to substantial change. See

Wendy Andre, Undocumented Immigrants and their Personal Injury Actions: Keeping

Immigration Policy Out of Lost Wage Awards and Enforcing the Compensatory and

Deterrent Function of Tort Law, 13 ROGER WILLIAMS U. L. REV. 530, 534-42

(2008) (discussing the historical development of U.S. immigration law). For

instance, the Immigration Control and Reform Act of 1986 (IRCA) allowed

previously undocumented immigrants who met certain criteria to become

lawful residents. 8 U.S.C. § 1255a; see Kati L. Griffith, A Supreme Stretch: The

Supremacy Clause in the Wake of IRCA and Hoffman Plastic Compounds, 41

CORNELL INT’L L.J. 127, 129 (2008) (noting that the IRCA gave amnesty to

over a million undocumented immigrants). Such sweeping changes to

immigration law could occur at any time. This means that an individual’s

current immigration status is not a reliable predictor of that individual’s future

immigration status.

[30] Even in the absence of any changes to the law, immigrants who remain

undocumented face a remarkably low risk of deportation. Salas, 230 P.3d at

669. The Department of Homeland Security (DHS) estimated that 11.4 million

undocumented immigrants resided in this country in 2012. DHS, ESTIMATES

OF THE UNAUTHORIZED IMMIGRANT POPULATION RESIDING IN THE UNITED

STATES: JANUARY 2012, (March, 2013) available at

https://www.dhs.gov/sites/default/files/publications/ois_ill_pe_2012_2.pdf.

In that same year, DHS removed an all-time high of approximately 419,000

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 undocumented immigrants. DHS, IMMIGRATION ENFORCEMENT ACTIONS:

2012, (Dec., 2013) available at

https://www.dhs.gov/sites/default/files/publications/ois_enforcement_ar_20

12_1.pdf. This record number of removals amounted to only 3.7 percent of the

total undocumented population. Removals are presently on a downward

trajectory, with the number of undocumented immigrants removed by DHS

falling to approximately 235,000 in 2015. DHS, ICE ENFORCEMENT AND

REMOVAL OPERATIONS REPORT, (Dec. 22, 2015) available at

https://www.ice.gov/sites/default/files/documents/Report/2016/fy2015remo

valStats.pdf.

[31] However, this present trajectory says little about the likelihood that a particular

immigrant will face deportation in any subsequent year. Apart from changes

brought through legislation, one’s ability to remain in this country will also

depend on executive enforcement decisions. DHS has recognized that its

ability to remove undocumented immigrants is limited and that it must exercise

discretion in allocating its resources. Its current Secretary has promulgated a

memorandum identifying certain undocumented immigrants as priorities for

removal, including individuals deemed to be threats to national security or

public safety. Memorandum from Jeh Johnson, Sec’y, DHS, to Thomas S.

Winkowski, Acting Dir., U.S. Immigration and Customs Enforcement, et al.

(Nov. 20, 2014), available at

https://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosec

utorial_discretion.pdf. This means that little can be known about an

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 undocumented immigrant’s chances of removal without knowing whether that

person is currently a priority in the eyes of DHS.

[32] DHS has also issued guidance, which has been the subject of much recent

discussion, known as Deferred Action for Parents of Americans and Lawful

Permanent Residents (DAPA). Memorandum from Jeh Johnson, Sec’y, DHS,

to Leon Rodriguez, Dir., U.S. Citizenship and Immigration Services, et al.

(Nov. 20, 2014), available at

https://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferre

d_action.pdf. Pursuant to DAPA, undocumented immigrants who meet certain

criteria may be eligible for deferred action, meaning DHS will not seek to

remove them for a period of time. Id. Qualified individuals may also be

eligible for work authorization. Id. As amicus for Escamilla notes, forty-six

percent of Indiana’s undocumented population could apply for deferred action

under DAPA. Brief of the Ind. Trial Lawyers Ass’n at 9. Thus, one would not

want to predict the likelihood that an undocumented immigrant will remain in

this country without first considering whether that person is eligible for DAPA.

But, as of today, it would be premature to make any predictions related to

DAPA, as the United States Supreme Court is set to hear a challenge to DAPA

in April. United States v. Texas, 136 S.Ct. 906 (2016).

[33] Thus, because one’s immigration status is defined by law, it is subject to sudden

and often unpredictable change depending on decisions made across all

branches of the federal government. Keeping this in mind, it seems clear that

the only thing to be inferred from Escamilla’s present immigration status is that

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 his chance of someday facing deportation is something above zero. I do not

believe that juries would be able to put this information to any productive use,

nor do I believe that it could—or should—affect the considerations of experts.

It bears remembering that the experts in Ortiz, relied upon by the majority,

found that the possibility that the plaintiff would be deported was “statistically

insignificant.” 2015 WL 1498713 at *7-8. I cannot imagine how a different

conclusion could be reached judging from one’s immigration status alone. I

therefore believe that it would be wise to presume the insignificance of one’s

immigration status.

[34] Allowing consideration of the issue may also diminish the effectiveness of state

tort law. Undocumented immigrants are “subject to the full range of

obligations” and “entitled to the equal protection” of the civil and criminal laws

of this State. Plyler v. Doe, 457 U.S. 202, 215 (1982) (noting that the Fourteenth

Amendment applies to any person within the jurisdiction of a state). They are

accordingly entitled to seek redress in our courts. See also Ind. Const. art. 1, §

12 (“All courts shall be open; and every person, for injury done to him . . . shall

have remedy by due course of law”) (emphasis added). However, as noted by

the amicus, undocumented immigrants are reluctant to turn to the courts for

fear of immigration consequences. Brief of the Ind. Trial Lawyers Ass’n at 12-

13. Were one’s immigration status to become an issue in civil actions such as

this, both parties would be compelled to present evidence as to the likelihood,

or lack thereof, of an immigrant’s removal. This could potentially transform a

tort case into a battle of immigration experts, taking focus away from the injury

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 to be redressed. Trial would become a much more costly proposition simply

because it involved an undocumented immigrant. This would serve as a further

disincentive for immigrants to seek relief in our court system.

[35] Moreover, if one’s immigration status were to have any impact on the outcome

of tort cases, it would certainly be to lower the damages awarded to the injured

individual. For this reason, I fear that injecting immigration status into such

matters would serve as a bad incentive for employers. Because of the

substantial difference between U.S. wages and those paid in neighboring

countries, employers would know that they have a chance of paying

substantially less in damages to an injured undocumented immigrant.

Industries that commonly rely on immigrant labor—industries which, as noted

by the amicus, often tend to be dangerous—would have less of an incentive to

ensure worker safety. Brief of the Ind. Trial Lawyers Ass’n at 9-10 (noting that

undocumented immigrants make up a substantial percentage of the workforce

in industries such as construction and meatpacking). Simply put, the deterrent

effect of tort law would apply with less force to those who employ

undocumented immigrants. As deterring negligent conduct is one of tort law’s

primary goals, this should not be the case. Hanson v. St. Luke’s United Methodist

Church, 704 N.E.2d 1020, 1027 (Ind. 1998).

[36] Finally, it is important to keep in mind that many of these cases will be tried

before juries. Our Rules of Evidence acknowledge that juries can be subject to

prejudice. See Evid. R. 403. Numerous courts have recognized the obvious

potential for prejudice surrounding the issue of immigration, and the majority

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 acknowledges this potential as well. Slip Op. at 16; Salas 230 P.3d at 586-87

(discussing holdings in other courts recognizing the potential for prejudice

surrounding immigration). However, despite acknowledging this potential, the

majority concludes that because there is “some risk of deportation,” “the

prejudicial effect of that evidence therefore currently does not outweigh its

probative value.” Id. Thus, the majority appears to conclude that, if evidence

of immigration status is relevant, its relevance outweighs its prejudicial effect.

This is not an adequate Rule 403 analysis as it fails to take account of the

prejudicial effect of the evidence.

[37] Assuming for argument’s sake that one’s immigration status may be relevant

under certain circumstances, in my opinion, this relevance would almost always

be outweighed by its prejudicial effect. If immigration status is to be put before

the jury at all, the party seeking to introduce evidence of an opponent’s

immigration status—or seeking to exclude evidence that fails to take account of

that status—should first be required to establish that his opponent faces an

imminent likelihood of deportation. Only after such a likelihood has been

established would the probative value of such evidence have any chance of

outweighing its prejudicial impact. While this is not my preferred way of

handling the issue, it is an outcome I would be willing to accept.

[38] For the foregoing reasons, I respectfully dissent.

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