                                                                               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.

      Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016                      Page 2 of 24
[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

      Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 3 of 24
         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.

Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016                         Page 4 of 24
        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.


Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016    Page 5 of 24
               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.

      Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016                               Page 6 of 24
      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.



      Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 7 of 24
[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.




      Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 8 of 24
[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.

       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 9 of 24
[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

       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016                         Page 10 of 24
       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”).

       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016                           Page 11 of 24
       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:




       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 12 of 24
               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.




       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 13 of 24
[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
       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 14 of 24
       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


       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 15 of 24
       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.

       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 16 of 24
                                                  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.




       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 17 of 24
                                                   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
       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016              Page 18 of 24
       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


       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 19 of 24
       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


       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 20 of 24
       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

       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 21 of 24
       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


       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 22 of 24
       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

       Court of Appeals of Indiana | Opinion 54A01-1506-CT-602 | March 31, 2016   Page 23 of 24
       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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