Escamilla v. Shiel Sexton Co.

• Decision Date: 04 May 2017
• Docket Number: No. 54S01-1610-CT-546,54S01-1610-CT-546
• Parties: Noe ESCAMILLA, Appellant (Plaintiff), v. SHIEL SEXTON COMPANY, INC., Appellee (Defendant).
• Court: Indiana Supreme Court

73 N.E.3d 663

Noe ESCAMILLA, Appellant (Plaintiff),

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

No. 54S01-1610-CT-546

Supreme Court of Indiana.

May 4, 2017

Attorneys for Appellant : Timothy F. Devereux, Daniel A. Ladendorf, Ladendorf Law, Indianapolis, Indiana

Attorneys for Amicus Curiae Indiana Chapter of the American Immigration Lawyers Association : Thomas R. Ruge, Joseph P. Rompala, Tabitha L. Balzer, Lewis & Kappes, P.C., Indianapolis, Indiana

Attorneys for Appellee : Rick D. Meils, Neil A. Davis, John W. Mervilde, Meils Thompson Dietz & Berish, Indianapolis, Indiana

Attorney for Amicus Curiae Indiana Trial Lawyers Association : Alexander Jesus Limontes, Law Office of William W. Hurst LLC, Indianapolis, Indiana

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

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.

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).

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 "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, 102 S.Ct. 2382, 72 L.Ed.2d 786 (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 , 83 Wis.2d 128, 265 N.W.2d 148, 150 (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 ...