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

ATTORNEYS FOR AMICUS CURIAE                            ATTORNEY FOR AMICUS CURIAE
INDIANA CHAPTER OF THE AMERICAN                        INDIANA TRIAL LAWYERS ASSOCIATION
IMMIGRATION LAWYERS ASSOCIATION                        Alexander Jesus Limontes
Thomas R. Ruge                                         Law Office of William W. Hurst LLC
Joseph P. Rompala                                      Indianapolis, Indiana
Tabitha L. Balzer
Lewis & Kappes, P.C.
Indianapolis, Indiana                                                          FILED
______________________________________________________________________________
                                                               May 04 2017, 2:09 pm

                                                                               CLERK
                                                                           Indiana Supreme Court
                                        In the                                Court of Appeals
                                                                                and Tax Court



                       Indiana Supreme Court
                          _________________________________

                                 No. 54S01-1610-CT-546

NOE ESCAMILLA,
                                                               Appellant (Plaintiff),


                                            v.

SHIEL SEXTON COMPANY, INC.,
                                                               Appellee (Defendant).

                          _________________________________

          Appeal from the Montgomery Superior Court 1, No. 54D01-1107-CT-562
                        The Honorable Heather L. Dennison, Judge
                         _________________________________

     On Petition to Transfer from the Indiana Court of Appeals, No. 54A01-1506-CT-602
                           _________________________________

                                      May 4, 2017

Rush, Chief Justice.
        Indiana’s tort trials should be about making injured parties whole—not about federal
immigration policies and laws. Today we address two important issues of first impression: May
an unauthorized immigrant sue for decreased earning capacity damages in a tort action? And if so,
is that plaintiff’s unauthorized immigration status admissible at trial?

        We first hold that the Indiana Constitution’s Open Courts Clause allows unauthorized
immigrants to pursue claims for decreased earning capacity damages. We then provide an
evidentiary framework for determining when unauthorized immigration status is admissible. That
framework recognizes that while a plaintiff’s unauthorized immigration status is relevant to
decreased earning capacity damages, admitting it would result in a collateral mini-trial on
immigration—a mini-trial that brings significant risks of confusing the issues and unfair prejudice.
Under Indiana Rule of Evidence 403, these risks will substantially outweigh immigration status’s
relevance—making it inadmissible—unless the evidence’s proponent shows by a preponderance
that the plaintiff will be deported. Finally, we hold that unaccounted-for contingencies in an
expert’s damages calculations are issues for cross-examination, not grounds for exclusion. We
therefore reverse the trial court’s contrary rulings and remand for it to apply this framework.

                                    Facts and Procedural History

        When Noe Escamilla was injured on the job, he was an unauthorized immigrant working
as a masonry laborer. About six years earlier, he had moved to the United States from Mexico as
a teenager with his parents, later marrying Karina and having three children. His wife and children
are all United States citizens.

        In December 2010, Escamilla’s employer, Masonry By Mohler,1 assigned him to work on
Wabash College’s baseball stadium in Crawfordsville. Escamilla and his coworkers needed to lift
a heavy capstone, but it rested on treacherous ground—rough with patches of snow and ice. As
they tried to lift the stone, Escamilla slipped on the ice and fell, suffering a hernia and severely
injuring his back. He now endures a permanent disability, restricting him from lifting more than
twenty pounds and barring him from working again as a masonry laborer.


1
 The record shows that Escamilla provided a Mexican ID when he was hired, and paid United States taxes
on his income. There is no indication that Masonry By Mohler used E-Verify or otherwise checked Esca-
milla’s immigration status at any time before his injury. See U.S. Citizenship and Immigration Services, E-
Verify, https://www.uscis.gov/e-verify.


                                                    2
       Escamilla sued Shiel Sexton, the general contractor on the Wabash College project, for his
injuries. Anticipating that lost wages and decreased earning capacity would be a major part of the
suit, Escamilla retained Sara Ford, a vocational rehabilitation expert, and Ronald Missun, an
economist, to provide expert testimony on these issues. Ford and Missun analyzed Escamilla’s
United States tax returns and work and income history, concluding that his average earnings were
$26,270 in the five years before his injury and $38,237 in the two years before his injury. Ford and
Missun then calculated that Escamilla’s injury decreased his lifetime earning capacity by between
$578,194 and $947,421.

       Shiel Sexton filed a pre-trial motion, arguing that (1) Escamilla’s immigration status should
bar him from recovering his decreased earning capacity; (2) Escamilla’s immigration status should
be admissible because, as an unauthorized immigrant, he could be deported at any time; and (3)
Ford and Missun’s testimony should be excluded as unreliable for failing to account for
Escamilla’s immigration status. Escamilla countered with a motion in limine, asking the trial court
to exclude any mention of his immigration status as irrelevant and unfairly prejudicial.

       The trial court allowed evidence of Escamilla’s immigration status and excluded Ford and
Missun’s testimony. It reasoned that “Escamilla’s immigration status is relevant to the issue of
damages on his claim for lost future income,” and that the report improperly looked at wages in
the United States, where Escamilla “is not legally permitted to work.” After excluding that
testimony, the court closed discovery, barring the parties from identifying additional expert
witnesses or supplementing previous experts’ testimony. Escamilla then took this interlocutory
appeal, arguing that his immigration status carried far more risk of unfair prejudice than relevance
and that Ford and Missun should be allowed to testify.

       The Court of Appeals affirmed in a split decision. The majority held that Escamilla can
recover decreased earning capacity damages, and that his immigration status would be relevant
and admissible if he claimed lost United States wages and faced “any risk” of deportation.
Escamilla v. Shiel Sexton Co., 54 N.E.3d 1013, 1022 (Ind. Ct. App. 2016). The majority also
affirmed the exclusion of Ford and Missun’s testimony for failing to consider Escamilla’s
immigration status. Id. at 1021. Judge Baker dissented, believing that the risk of unfair prejudice
substantially outweighed any relevance to Escamilla’s immigration status. Id. at 1025 (Baker, J.,
dissenting).



                                                 3
        Escamilla petitioned for transfer, which we granted to address when immigration status is
admissible in a decreased earning capacity tort claim—an issue of first impression. We reverse the
trial court, provide a framework for addressing this evidentiary question under Rule 403, and
remand for the trial court to apply this framework.

                                       Standard of Review

        We review the trial court’s evidentiary rulings for an abuse of discretion. State Farm Mut.
Auto. Ins. Co. v. Earl, 33 N.E.3d 337, 340 (Ind. 2015). But to the extent the evidentiary rulings
raise threshold constitutional questions, we apply de novo review. Tiplick v. State, 43 N.E.3d 1259,
1262 (Ind. 2015).

                                     Discussion and Decision

        We first address the threshold issue of whether unauthorized immigrants can pursue a tort
claim for decreased earning capacity damages. Then, we turn to this tort case’s two evidentiary
questions: (1) In a decreased earning capacity tort claim, when will the risks of confusing the issues
and unfair prejudice substantially outweigh the probative value of unauthorized immigration status
under Indiana Rule of Evidence 403? And (2) are expert calculations of decreased earning capacity
damages inadmissible if they fail to account for some contingencies?

I.      Unauthorized Immigrants May Pursue Claims for Decreased Earning Capacity
        Damages.

        Shiel Sexton argued to the trial court and Court of Appeals that Escamilla’s immigration
status bars him from recovering his decreased earning capacity. But blocking unauthorized
immigrants from pursuing decreased earning capacity claims would violate the Open Courts
Clause in Article 1, Section 12 of the Indiana Constitution—and federal law does not require us to
hold otherwise.

     A. The Indiana Constitution’s Open Courts Clause guarantees unauthorized immigrants
        access to Indiana courts to pursue decreased earning capacity claims.

        Indiana’s Open Courts Clause mandates, “All courts shall be open; and every person, for
injury done to him in his person, property, or reputation, shall have remedy by due course of law.
Justice shall be administered freely, and without purchase; completely, and without denial;
speedily, and without delay.” Ind. Const. art. 1, § 12 (emphases added). This Clause thus



                                                  4
“guarantees access to the courts to redress injuries to the extent the substantive law recognizes an
actionable wrong.” Smith v. Ind. Dep’t of Corr., 883 N.E.2d 802, 807 (Ind. 2008).

        When Indiana law affords a remedy—like recovering decreased earning capacity—the
Open Courts Clause does not permit us to close the courthouse door based solely on the plaintiff’s
immigration status. We cannot read the Open Courts Clause’s “every person” guarantee to exclude
unauthorized immigrants. See Plyler v. Doe, 457 U.S. 202, 210 (1982) (“Whatever his status under
the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term.”); McKean
v. Yates Eng’g Corp., 200 So. 3d 431, 436 (Miss. 2016) (holding that, regarding unauthorized
immigrants and Mississippi’s Open Courts Clause, “the Mississippi Constitution does not limit
access to our courts and leaves open for every person a remedy for injury done to his person”);
Arteaga v. Literski, 265 N.W.2d 148, 150 (Wis. 1978) (holding that Wisconsin’s Open Courts
Clause says “every person,” so unauthorized immigrants “have the right to sue in the courts of the
State of Wisconsin for personal injuries”). And as long as decreased earning capacity remains
recoverable in personal injury actions, it is part of administering justice “completely.” See Smith,
883 N.E.2d at 807 (“[The Open Courts Clause means], at a minimum, that to the extent the law
provides a remedy for a wrong, the courts are available and accessible to grant relief.”).2
Accordingly, Escamilla and similarly situated plaintiffs cannot be barred from pursuing decreased
earning capacity claims.

        This “every person” mandate is rooted in the Open Courts Clause’s history—going back
to Chapter 40 of Magna Carta. That chapter provided in part, “to no one will we sell, to no one
deny or delay right or justice.” Id. at 806 (quoting William McKechnie, Magna Carta: A
Commentary on the Great Charter of King John 395 (2d. ed. 1914)). Sir Edward Coke interpreted
Chapter 40 this way:

                And therefore every Subject of this Realm, . . . be he Ecclesiastical,
                or Temporal, Free or Bond, Man or Woman, Old or Young, or be he
                outlawed, excommunicated, or any other without exception, may
                take his remedy by the course of the Law, and have justice and right
                for the injury done to him, freely without sale, fully without any
                denial, and speedily without delay.


2
  The United States Supreme Court has reached similar conclusions under, for example, the Fifth and Four-
teenth Amendments. Plyler, 457 U.S. at 210 (“Aliens, even aliens whose presence in this country is unlaw-
ful, have long been . . . guaranteed due process of law by the Fifth and Fourteenth Amendments.”).


                                                   5
Id. (emphasis added) (quoting David Schuman, Oregon’s Remedy Guarantee: Article I, Section
10 of the Oregon Constitution, 65 Or. L. Rev. 35, 38 (1986)). This formulation—which directly
informed state Open Courts Clauses—shows that Indiana’s Open Courts Clause does not play
favorites. See Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts
Clause of State Constitutions, 74 Or. L. Rev. 1279, 1314 (1995). Our Constitutional history and
foundation demonstrate that the Open Courts Clause applies in full force to unauthorized
immigrants.

   B. The United States Supreme Court’s Hoffman decision does not compel a different result.

       Shiel Sexton cites Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137 (2002) in
arguing that unauthorized immigrants cannot recover their decreased earning capacities. In Hoff-
man, the United States Supreme Court addressed immigration status’s effect on backpay awards
under the National Labor Relations Act, reversing the National Labor Relations Board’s backpay
award to an unauthorized immigrant. Id. at 142. The majority reasoned that allowing the award
would disrupt federal immigration policy under the Immigration Reform and Control Act of 1986
(“IRCA”) because “it is impossible for an undocumented alien to obtain employment in the United
States without some party directly contravening explicit congressional policies.” Id. at 148–49.

       Critically, though, Hoffman’s issue—whether federal immigration law under IRCA limited
remedies for National Labor Relations Act violations—was only about reconciling two federal
statutes. Id. at 152. Hoffman thus “is a narrow decision that does not touch on state common law.”
Hugh Alexander Fuller, Comment, Immigration, Compensation, and Preemption: The Proper
Measure of Lost Future Earning Capacity Damages After Hoffman Plastic Compounds, Inc. v.
NLRB, 58 Baylor L. Rev. 985, 1002 (2006). It simply does not affect the recovery of decreased
earning capacity damages, which are common-law damages under state tort law. See id. Accord-
ingly, courts—including our Court of Appeals here—have consistently declined to expand Hoff-
man to decreased earning capacity cases. E.g., Escamilla, 54 N.E.3d at 1020 n.6; Balbuena v. IDR
Realty LLC, 845 N.E.2d 1246, 1260 (N.Y. 2006); Rosa v. Partners in Progress, Inc., 868 A.2d
994, 1000 (N.H. 2005). And because Hoffman involved only federal congressional policy, it did
not address the evidentiary issues governing this case.

       In sum, Hoffman does not apply and Indiana’s Open Courts Clause mandates that every
person, including unauthorized immigrants, has access to our courts to pursue remedies. We thus


                                                 6
turn to the first of this case’s central evidentiary questions: whether unauthorized immigration
status is admissible evidence for decreased earning capacity calculations.

II.      The Admissibility of a Plaintiff’s Unauthorized Immigration Status Is an Evidentiary
         Question, Resolved by Indiana’s Relevance Rules.

         Indiana’s Rules of Evidence guide the admissibility of unauthorized immigration status.
Most states with similar provisions find immigration status inadmissible because its dangers
substantially outweigh its probative value.

      A. Indiana’s Rules of Evidence govern immigration status’s admissibility.

          We focus on Indiana’s relevance rules—Rules of Evidence 401, 402, and 403—to provide
a framework for resolving when, in tort cases like this one, a plaintiff’s unauthorized immigration
status is admissible.

         Rule 401 deems evidence relevant when it “has any tendency to make a [consequential]
fact more or less probable than it would be without the evidence.” Patchett v. Lee, 60 N.E.3d 1025,
1031 (Ind. 2016) (alteration in original) (quoting Ind. Evidence Rule 401). And “[g]enerally
speaking, relevant evidence is admissible” under Rule 402. Majors v. State, 748 N.E.2d 365, 368
(Ind. 2001) (citing Evid. R. 402).

         But relevant evidence may be excluded “if its probative value is substantially outweighed
by the danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or
needlessly presenting cumulative evidence.” Evid. R. 403. To this end, Rule 403 is a gatekeeping
rule. See TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985, 998 (Ind. 2014); Steward v. State, 652
N.E.2d 490, 498 (Ind. 1995). When these risks substantially outweigh the probative value, the
evidentiary gates remain closed.

         Because this case presents evidentiary issues properly resolved through Rule 403’s
gatekeeping function, we—like the Court of Appeals—decline to make “sweeping
pronouncements” about immigration policy. Escamilla, 54 N.E.3d at 1015. After all, we are
concerned today with judicial evidentiary standards, not with executive or legislative immigration
policies. See Meredith v. Pence, 984 N.E.2d 1213, 1216 (Ind. 2013) (“Whether [Indiana’s school
voucher program] is wise educational or public policy is not a consideration germane to the narrow




                                                 7
issues of Indiana constitutional law that are before us. Our individual policy preferences are not
relevant.”).

   B. National approaches vary, but most courts applying the Rule 403 test find unauthorized
      immigration status inadmissible in decreased earning capacity claims.

       Most courts confronting the admissibility of a plaintiff’s unauthorized immigration status
apply Rule 403’s balancing test in decreased earning capacity cases. They first determine whether
immigration status is relevant, then—if it is—balance that relevance against the dangers of
admitting the immigration status. This test has led several courts to exclude immigration status
either because it is irrelevant or because the danger of unfair prejudice substantially outweighs its
relevance.

       The Supreme Courts of both California and Virginia, for example, have found immigration
status irrelevant—and added that even if it were relevant, the danger of unfair prejudice would bar
its admission. Clemente v. California, 707 P.2d 818, 829 (Cal. 1985); Peterson v. Neme, 281
S.E.2d 869, 872 (Va. 1981).

       Most courts, though, have concluded that immigration status is relevant to damages—
though not to liability—in a decreased earning capacity claim. However, many of those courts
have found that the danger of unfair prejudice substantially outweighs the relevance. Ayala v. Lee,
81 A.3d 584, 597 (Md. Ct. Spec. App. 2013) (“[C]ourts that have balanced the relevance and
prejudice inquiries have frequently come down on the side of ‘prejudicial’ because of the low
probative value of evidence of immigration status.”). The Washington Supreme Court, for
example, held that “with regard to lost future earnings, the probative value of a plaintiff’s
undocumented status, by itself, is substantially outweighed by the danger of unfair prejudice.”
Salas v. Hi-Tech Erectors, 230 P.3d 583, 587 (Wash. 2010) (en banc); see also Gonzalez v. City
of Franklin, 403 N.W.2d 747, 760 (Wis. 1987) (weighing the “speculative or conjectural”
relevance of immigration status evidence against its “obvious prejudicial effect”); Republic Waste
Servs., Ltd. v. Martinez, 335 S.W.3d 401, 408, 411 (Tex. App. 2011) (citing TXI Transp. Co. v.
Hughes, 306 S.W.3d 230, 243–44 (Tex. 2010)).

       Only New Hampshire has resolved the balance the other way, reasoning that while
immigration status “may well be prejudicial,” it is also “essential” to lost earning capacity claims.
Rosa, 868 A.2d at 1002. A few other courts have skipped the balancing test altogether, apparently


                                                 8
assuming the admissibility of a plaintiff’s undocumented immigration status. Balbuena, 845
N.E.2d at 1259; Villasenor v. Martinez, 991 So. 2d 433, 436–37 (Fla. Dist. Ct. App. 2008);
Melendres v. Soales, 306 N.W.2d 399, 402 (Mich. Ct. App. 1981).

          Most courts applying Rule 403, then, exclude immigration status either because it is
irrelevant or because any relevance is substantially outweighed by certain dangers. Having
surveyed this landscape, we apply our own Rule 403 analysis. We look first to the relevance of
unauthorized immigration status, then balance that relevance against the dangers of confusing the
issues and unfair prejudice. As discussed below, we conclude that even though unauthorized
immigration status is relevant to decreased earning capacity claims, the dangers of confusion and
unfair prejudice make it inadmissible unless the plaintiff is more likely than not to be deported.

III.      Under Rule of Evidence 403, a Plaintiff’s Unauthorized Immigration Status Is
          Inadmissible Unless the Proponent Shows by a Preponderance that the Plaintiff Will
          Be Deported.

          While unauthorized immigration status is relevant to a plaintiff’s decreased earning
capacity, it also carries a high risk of confusing the issues and some risk of unfair prejudice.
Because of these dangers, a plaintiff’s unauthorized immigration status is admissible only under
one limited circumstance: if the evidence’s proponent shows by a preponderance—in other words,
that it is more likely than not—that the plaintiff will be deported.

       A. Unauthorized immigration status clears Rule 401’s low bar for relevance.

          Shiel Sexton argues that Escamilla’s immigration status is relevant to his decreased earning
capacity damages. We agree because his immigration status affects his chances of deportation and
ability to work in the United States over the course of his career. A jury could factor in the
probability that his immigration status would lead to deportation or an inability to work, and reduce
damages proportionally. See 22 Am. Jur. 2d Damages § 159 (2013) (stating a jury should take into
account “contingencies to which [the plaintiff’s income is] liable”). Because of this potential
reduction in earning capacity, unauthorized immigration status clears the low bar set by Rule 401’s
“liberal standard for relevancy.” Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011). We therefore
proceed to the other side of Rule 403 to determine whether the risks of confusing the issues and
unfair prejudice substantially outweigh this relevance.




                                                   9
   B. Unauthorized immigration status carries a high risk of confusing the issues and some risk
      of unfair prejudice.

       Even though a plaintiff’s unauthorized immigration status is relevant, Rule 403 directs
courts, as gatekeepers, to exclude evidence if its risks substantially outweigh its relevance. We
look to two of Rule 403’s risks: confusing the issues and unfair prejudice. Confusing the issues is
concerned with the evidence growing “so intricate that the disentanglement of it becomes difficult”
or becoming such “a mass of confused data” that the jury loses sight of the main issue. J. Wigmore,
2 Wigmore on Evidence § 443 at 529 (1979), 6 Wigmore on Evidence § 1864 at 643. And unfair
prejudice “looks to the capacity of the evidence to persuade by illegitimate means, or the tendency
of the evidence to suggest decision on an improper basis.” Camm v. State, 908 N.E.2d 215, 224
(Ind. 2009) (quoting Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999)). We conclude that in
decreased earning capacity claims, these risks will often substantially outweigh the probative value
of unauthorized immigration status.

       1. Unauthorized immigration status carries a high risk of confusing the issues.

       Unauthorized immigration status presents a significant risk of confusing the issues because
it would flood the courtroom with arguments and evidence on immigration status and deportation
risk, resulting in a “collateral mini-trial” on immigration. State v. Buccheri-Bianca, 312 P.3d 123,
127 (Ariz. Ct. App. 2013). This collateral mini-trial would require in-depth expert testimony from
both parties, as it is “elementary that the jury cannot be left to speculate or conjecture” about
decreased earning capacity damages, Scott v. Nabours, 296 N.E.2d 438, 441 (Ind. Ct. App. 1973).
And in most cases, that immigration mini-trial would bring more confusion than clarity.

           a. Immigration policy is constantly shifting.

       In a collateral mini-trial on immigration, the jury would have to hear and understand
evidence about ever-shifting government policies and priorities. See Arizona v. United States, 567
U.S. 387, 395 (2012) (“Federal governance of immigration and alien status is extensive and
complex.”).

       Immigration policy’s complexities begin with the power shared by Congress and the
Executive. While “Congress has specified which aliens may be removed from the United States
and the procedures for doing so,” the Executive retains “broad discretion” in admissibility




                                                10
determinations, securing the borders, and apprehending and removing undocumented immigrants.
Id. at 396. So immigration policy comes from multiple potentially competing sources.

        Indeed, this shared power structure means that some policies last for decades while others
change as fast as—or faster than—presidential administrations. IRCA, for example, was enacted
by Congress “as a comprehensive framework for ‘combating the employment of illegal aliens’”
and has been in force for over thirty years. Id. at 404 (quoting Hoffman, 535 U.S. at 147). But
executive policy changes at a far quicker pace. In 2012, the Executive implemented DACA—the
Deferred Action for Childhood Arrivals program. Crane v. Johnson, 783 F.3d 244, 248 (5th Cir.
2015). This program, on a case-by-case basis, defers the deportation of unauthorized immigrants
who meet five criteria, including arriving in the United States before turning sixteen.3 Id. Then in
2014 the Executive added DAPA—Deferred Action for Parent Arrivals—a second, similar
program deferring deportation for certain parents of U.S. citizens or lawful permanent residents.
Id. at 248 n.12.

        But while the Executive enjoys “broad discretion” in many immigration contexts,
executive actions are barred if “foreclosed by” and “manifestly contrary to” Congressional
pronouncement. Texas v. United States, 809 F.3d 134, 186 (5th Cir. 2015), aff’d by an equally
divided Court, United States v. Texas, 136 S. Ct. 2271 (2016). The Southern District of Texas
barred the Executive from implementing DAPA on this basis, and the Fifth Circuit upheld that
injunction on appeal. Id. at 188. And while the original DACA program remains in force so far,
executive actions implemented by one administration can as easily be undone by the next.

        Another major area of executive policymaking discretion is deportation volume and
priorities. For example, in 2014, the federal government removed 414,481 unauthorized
immigrants out of an estimated 11.1 million.4 These removals reflect discretionary enforcement


3
 The other criteria are being under the age of thirty-one as of June 15, 2012; continuously residing in the
United States since June 15, 2007; remaining in school, graduating from high school, obtaining a GED, or
being honorably discharged from the Coast Guard or the United States Armed Forces; and not being con-
victed of a felony, significant misdemeanor, or multiple misdemeanors, or otherwise posing a threat to
national security or public safety. Crane, 783 F.3d at 248.
4
  Bryan Baker & Christopher Williams, Annual Report, Office of Immigration Statistics, Immigration En-
forcement Actions: 2014 (January 2016), https://www.dhs.gov/sites/default/files/publications/Enforce-
ment_Actions_2014.pdf; Jeffrey S. Passel & D’Vera Cohn, Pew Research Center, Overall Number of U.S.



                                                    11
priorities and removal patterns. In 2015, over ninety-seven percent of those removed had been
convicted of a crime or apprehended at or near United States borders or ports of entry.5 And ninety-
eight percent fit “enforcement priorities” based on factors such as criminal convictions, failed
border crossings, national security threats, abuse of visa programs, and previous orders for
removal.6 These statistics give only a sampling of considerations that would go before the jury to
help them calculate an immigrant’s chances of deportation.

          But historical statistics—even those only a few years old—cannot fully capture present and
future policies. A 2014 executive order, for example, set a removal priority for immigrants
convicted of crimes. But that order’s 2017 replacement expanded priorities to:

                 [R]emovable aliens who:
                 (a) Have been convicted of any criminal offense;
                 (b) Have been charged with any criminal offense, where such charge
                 has not been resolved;
                 (c) Have committed acts that constitute a chargeable criminal
                 offense;
                 (d) Have engaged in fraud or willful misrepresentation in connection
                 with any official matter or application before a governmental
                 agency;
                 (e) Have abused any program related to receipt of public benefits;
                 (f) Are subject to a final order of removal, but who have not
                 complied with their legal obligation to depart the United States; or
                 (g) In the judgment of an immigration officer, otherwise pose a risk
                 to public safety or national security.7

While this expansion is substantial, only time will tell where and how it will be enforced.

          Congressional action, executive action, executive repeal, executive discretion, executive
priorities, and judicial review make shifting government policies and priorities troublesome for



Unauthorized Immigrants Holds Steady Since 2009 (Sept. 20, 2016), http://www.pewhis-
panic.org/2016/09/20/overall-number-of-u-s-unauthorized-immigrants-holds-steady-since-2009/.
5
  See Written Testimony of ICE Enforcement and Removal Operations Executive Associate Director
Thomas Homan for a Senate Committee on the Judiciary (May 19, 2016),
https://www.dhs.gov/news/2016/05/19/written-testimony-ice-senate-judiciary-subcommittee-immigra-
tion-and-national.
6
    Id.
7
 The White House, Executive Order: Enhancing Public Safety in the Interior of the United States (Jan. 25,
2017), https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-
public-safety-interior-united.


                                                   12
juries to first understand, and then to apply prospectively. We will not ask them to do so lightly,
particularly in tort cases like this one where immigration is a tangential issue.

           b.   Plaintiffs may have many opportunities to adjust their immigration status.

       In addition to understanding our complex and infinitely variable immigration system, juries
would have to apply that understanding to specific people. This requires the often-immense
undertaking of evaluating the plaintiff’s opportunities to gain legal residency. Indeed, this very
case shows the difficulty in pinning down past, present, and future immigration statuses. As Shiel
Sexton understates, “Escamilla’s immigration status has been something of a moving target.”

       DACA and DAPA—the programs identified above—alone promise deferred action for
nearly half of the estimated 11.1 million unauthorized immigrants living in the United States. At
the end of 2016, over 750,000 applicants had been approved for DACA8 out of an estimated 1.9
million potentially eligible immigrants.9 And an additional estimated 3.5 million unauthorized
immigrants would be eligible for deportation relief under DAPA.10 But the eligibility requirements
are complex, forcing the jury to evaluate the chances any given person would be accepted.

       And eligibility for or even acceptance into these programs does not ease the jury’s burden.
As noted above, these programs can be blocked in the courts or rescinded—or even ignored by the
Executive. Deferred deportation is, after all, a matter of prosecutorial discretion even for those
accepted into the programs.11




8
  Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter,
Intake, Biometrics and Case Status, https://www.uscis.gov/sites/default/files/USCIS/Resources/Re-
ports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_perfor-
mancedata_fy2016_qtr4.pdf.
9
 Faye Hipsman et al., Migration Policy Institute, DACA at Four: Participation in the Deferred Action
Program and Impacts on Recipients (August 2016), http://www.migrationpolicy.org/research/daca-four-
participation-deferred-action-program-and-impacts-recipients.
10
  Jens Manuel Krogstad, Pew Research Center, Key facts about immigrants eligible for deportation relief
under Obama’s expanded executive actions (Jan. 19, 2016), http://www.pewresearch.org/fact-
tank/2016/01/19/key-facts-immigrants-obama-action/.
11
    U.S. Citizen and Immigration Services, Frequently Asked Questions (Apr. 25, 2017),
https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-
asked-questions (“DHS can terminate or renew deferred action at any time, at the agency’s discretion.”).



                                                  13
        In addition to those programs, United States citizens’ immediate relatives—such as
Escamilla—have a specific path to lawful permanent residency. See 8 U.S.C. §§ 1151(b)(2)(A)(i),
1154(a)(1)(A)(i); 8 CFR § 204.1. This path requires the citizen relative to file a Form I-130 Petition
for Alien Relative and the immigrant to file a Form I-485 Application to Adjust Status.12 United
States v. Chahla, 752 F.3d 939, 942 n.2 (11th Cir. 2014). But even these immigration status
adjustments are never simple. Instead, they are partially dependent on whether a person is
“inadmissible.” See 8 U.S.C. § 1182 (making “aliens . . . inadmissible” for several reasons,
including health, criminal convictions, and national security). That determination is also complex,
often turning on exceptions and nuances that complicate any admissibility determination. E.g. id.
§ 1182(a)(2)(A)(ii); (a)(3)(B)(ii); (a)(3)(C)(ii), (iii); (a)(3)(D)(iv).

        Today’s statistics and policies simply cannot reveal what tomorrow holds—a truth
particularly relevant in the immigration context. Because decreased earning capacity is based on a
plaintiff’s entire working life, many changes—favorable and unfavorable to each side—can occur.
The arguments and evidence about decades of policy would constitute a collateral mini-trial on
immigration, requiring juries to apply nuanced statistics and answer highly debatable and uncertain
questions.

        Of course, despite the many complexities of a collateral immigration mini-trial, we are not
saying that juries cannot make myriad immigration determinations. We maintain our “strong faith
in the ability of the jury to decide such complex questions.” Mayhue v. Sparkman, 653 N.E.2d
1384, 1389 (Ind. 1995). But the vast scope and fluid nature of immigration policy and status
counsels that juries typically should not make these determinations.

        The way complex immigration law has invaded this opinion demonstrates the way it would
invade Escamilla’s tort case if his immigration status were admitted. Immigration arguments and
evidence would “flood the courtroom.” See Thompson v. State, 690 N.E.2d 224, 236 (Ind. 1997)
(quoting United States v. Smith, 80 F.3d 1188, 1193 (7th Cir. 1996)). Injecting such a specialized
and complex mini-trial into Escamilla’s tort case creates too high a risk of confusing the issues.

             c. Special tests, like New Hampshire’s, for recovering decreased earning capacity
                complicate, rather than simplify, the jury’s determinations.


12
  Escamilla has filed a Form I-485, but the record does not indicate whether his wife or another relative
has filed the prerequisite Form I-130.


                                                    14
        While immigration status thus creates an unacceptably high risk of confusing the issues,
some states have further muddied the waters by imposing additional considerations on juries. For
example, in Rosa, the New Hampshire Supreme Court held that unauthorized immigrants cannot
recover lost United States earnings unless their employers “knew or should have known” of their
unauthorized status. 868 A.2d at 1000–01. This test adds yet another wrinkle for juries, increasing
their focus on immigration and forcing them to decide what an employer “knew or should have
known.” Id. It also would require juries to hear evidence about whether and how, such as through
the federal E-Verify system, an employer investigated an employee’s immigration status before
hiring.13

        Indeed, New Hampshire’s “unclean hands” approach illustrates an additional layer of
confusion that immigration status would inject into tort cases like this one. This approach
understandably aims to deter employers from knowingly hiring unauthorized immigrants and then
using immigration status to decrease liability. Yet this concern cuts both ways, as employees may
be able to seek status adjustments primarily to increase their award. And the two are not mutually
exclusive—it is not hard to imagine both sides taking these measures. Asking juries to sort out
motivations in this immigration context in order to best make injured parties whole would only
exacerbate the confusion of the issues. See Patchett, 60 N.E.3d at 1028 (“Indiana tort law seeks to
make injured parties whole.”).

        For these reasons, New Hampshire’s attempted solution hurts more than it helps—
increasing the dangers of admitting immigration status and complicating juries’ work. We
conclude the better approach is to resolve this question through Rule 403—thus entrusting it to the
trial court’s gatekeeping role. See TP Orthodontics, Inc., 15 N.E.3d at 998. This approach resolves
the chances-of-deportation determination, and the resulting admissibility conclusion, before trial
rather than in a collateral mini-trial to the jury.

        2. Unauthorized immigration status carries some risk of unfair prejudice.

        The risk of confusing the issues is our primary, but not our only, consideration. We also
look to one of Rule 403’s other factors: unfair prejudice. We have held, for example, that child
molestation evidence, Camm, 908 N.E.2d at 225, gruesome photographs, see Pruitt v. State, 834

13
   In this case, the record gives no indication that Masonry By Mohler checked Escamilla’s immigration
status prior to his injury.


                                                      15
N.E.2d 90, 118 (Ind. 2005), a gun and bullets, Hubbell v. State, 754 N.E.2d 884, 890 (Ind. 2001),
and drug purchases evidence, Jenkins v. State, 729 N.E.2d 147, 149 (Ind. 2000), should be
excluded in certain cases as substantially more unfairly prejudicial than probative. We have also
“emphasized that the relevant inquiry is not merely whether the matter is prejudicial to the
defendant’s interests, but whether it is unfairly prejudicial.” Baer v. State, 866 N.E.2d 752, 763
(Ind. 2007) (quotation omitted).

       Immigration status does, of course, carry some risk of unfair prejudice—as courts across
this country have realized. This is because immigration status “introduces a factor into the case
that might encourage the jury to dislike or disapprove of [a party] independent of the merits.”
Ayala, 81 A.3d at 597 (alteration in original) (quoting United States v. Amaya-Manzanares, 377
F.3d 39, 45 (1st Cir. 2004)). And because illegal immigration is, for many, a sensitive issue—
personally, ethically, and politically—it “can inspire passionate responses that carry a significant
danger of interfering with the fact finder’s duty to engage in reasoned deliberation.” Salas, 230
P.3d at 586.

       This observation does not disparage Indiana juries, as Shiel Sexton suggests it might. Quite
the contrary; Indiana has long respected juries’ pivotal role in our tort system. See, e.g., Patchett,
60 N.E.3d at 1032 (citing Ind. Const. art. 1, §§ 13(a), 20) (honoring “our deep, abiding faith in the
jury system”). But alongside our faith in juries, we must recognize the dangers inherent in some
types of evidence. Bloom v. Franklin Life Ins. Co., 97 Ind. 478, 486 (1884) (“Courts cannot be
ignorant of the nature of men, and must attribute to them the ordinary passions and weaknesses
inherent in human nature.”). Escamilla’s immigration status carries with it some risk of unfair
prejudice, and that risk when combined with the risk of confusing the issues counsels against its
admission.

   C. A plaintiff’s unauthorized immigration status is inadmissible unless the evidence’s
      proponent shows by a preponderance that the plaintiff will be deported.

       From these Rule 403 factors, we distill a framework for the admissibility of a plaintiff’s
unauthorized immigration status. A plaintiff’s unauthorized immigration status is inadmissible
unless the preponderance of the evidence shows that the plaintiff will be deported. Three principal
considerations support this framework.




                                                 16
       First, this standard accounts for the consistently confusing and evolving nature of federal
immigration law. As we have noted, immigration policies and statuses are inevitably confusing
any time an unauthorized immigrant is involved. Congressional and presidential immigration
policies and programs can be imprecise, discretionary, and subject to judicial review. And even
when a person is demonstrably eligible for certain programs, understanding and applying removal
priorities remains challenging. It is difficult, if not impossible, to guess when programs may be
suspended or ignored even after accepting applications.

       While the combined risks of confusing the issues and unfair prejudice are consistently high,
immigration status’s relevance waxes and wanes with the chances of deportation. For immigrants
like Escamilla, for example, the chances have historically been quite small—perhaps as high as
three percent. See Escamilla, 54 N.E.3d at 1023–24 (Baker, J., dissenting); see also Salas, 230 P.3d
at 585 (identifying a less-than-one-percent chance of an undocumented immigrant like Escamilla
being apprehended, and an even smaller chance of deportation). But for others, the chances have
been, and may continue to be, much higher.14 Ultimately, unless the proponent of the evidence
establishes that the plaintiff will more likely than not be deported, the risks of confusion or
prejudice from immigration status will substantially outweigh its probative value.

       Second, placing the burden of proof on the proponent of the immigration evidence has both
legal and practical justifications. Legally, it is consistent with precedent in the similar context of
Rule of Evidence 609(b)(1)—where evidence of criminal convictions more than ten years old is
inadmissible unless “the proponent demonstrates that the probative value of the stale conviction
evidence substantially outweighs its prejudicial effect.” Stephenson v. State, 742 N.E.2d 463, 485
(Ind. 2001) (emphasis added) (citing Evid. R. 609(b)). And practically, as Judge Baker’s dissent
recognized, routinely admitting immigration evidence would often let employers pay substantially
lower injury damages to unauthorized immigrants, thus decreasing incentives for guarding worker
safety while increasing incentives for illegal hiring. See Escamilla, 54 N.E.3d at 1025 (Baker, J.,
dissenting).

       Finally, even though proof that a particular immigrant will more likely than not be deported
may be a steep showing, it is still the least cumbersome alternative. Requiring plaintiffs to prove


14
  See Written Testimony of ICE Enforcement and Removal Operations Executive Associate Director
Thomas Homan for a Senate Committee on the Judiciary, supra note 5.


                                                 17
that they will not likely be deported would require them to prove a negative—a burden we rarely
impose. E.g., Villas W. II of Willowridge Homeowners Ass'n, Inc. v. McGlothin, 885 N.E.2d
1274, 1282 (Ind. 2008) (adopting burden-shifting test for disparate-impact claims that, among
other advantages, avoided requiring either party to prove a negative); Milledge v. Oaks, 784
N.E.2d 926, 931 (Ind. 2003) (declining to adopt test for certain worker’s compensation claims that
would require the injured employee to prove a negative).

       For these reasons, the admissibility of immigration status under Rule 403 for decreased
earning capacity claims turns on the chances of deportation. If a plaintiff is more likely than not to
be deported, the relevance is necessarily so high that it will not be substantially outweighed by the
evidence’s risks. But if the chances of deportation fall below that level, immigration status should
be excluded to avoid the dangers of confusing the issues and unfair prejudice.

IV.    The Trial Court Abused Its Discretion in Barring Experts Ford and Missun from
       Testifying at Trial.

       After finding Escamilla’s immigration status admissible, the trial court closed discovery
and barred Ford and Missun from testifying about Escamilla’s decreased earning capacity because
they failed to take into account his immigration status. Since that failure goes to weight, not
admissibility, Ford and Missun should be allowed to testify about their decreased earning capacity
calculations regardless of whether Escamilla’s immigration status is admissible. We therefore
reverse their testimony’s exclusion as an abuse of discretion.

       Under Indiana Rule of Evidence 702(a), expert witnesses may testify if their “scientific,
technical, or other specialized knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue.” This standard is a liberal one; “[e]vidence need not be conclusive to
be admissible.” Turner v. State, 953 N.E.2d 1039, 1050 (Ind. 2011).

       Because Ford and Missun’s testimony would “help the trier of fact” determine Escamilla’s
decreased earning capacity—a responsibility requiring expert testimony—it was an abuse of
discretion to exclude it. In their report, Ford and Missun outline their calculations and
methodology, reaching the conclusion that Escamilla’s decreased earning capacity was $578,194
on the low end, and $947,421 on the high end. Once explained to the jury, these figures and their
underlying methodology would be a great help in determining Escamilla’s damages.




                                                 18
       And if Shiel Sexton doubts Ford and Missun’s testimony, “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible evidence.” Id. (quoting Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993)). Trial will bring ample opportunity for these
approaches, provided they do not stray into inadmissible evidence.

       Finally, because we remand for additional evidentiary determinations, we note that
discovery will likely need to be reopened so the parties can present the evidence required for
further proceedings under this opinion.

                                             Conclusion

       To determine whether a plaintiff’s unauthorized immigration status is admissible in
decreased earning capacity claims, trial courts must weigh any relevance against the dangers of
unfair prejudice and confusing the issues. Specifically, these dangers will substantially outweigh
relevance unless the evidence’s proponent shows by a preponderance of the evidence that the
plaintiff will be deported. We reverse the trial court’s evidentiary rulings and remand for it to apply
this framework to Escamilla’s case.

Rucker, David, Massa, and Slaughter, JJ., concur.




                                                  19
