Escamilla v. Shiel Sexton Co.

54 N.E.3d 1013

Noe ESCAMILLA, Appellant–Plaintiff

v.SHIEL SEXTON COMPANY, INC., Appellee–Defendant.

No. 54A01–1506–CT–602.

Court of Appeals of Indiana.

March 31, 2016.

Rehearing Denied July 13, 2016.

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

Alexander Jesus Limontes, Indiana Trial Lawyers Association, Indianapolis, IN, Attorney for the Amicus Curiae.

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

MAY, Judge.

[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

[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 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 [122 S.Ct. 1275, 152 L.Ed.2d 271] (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 [122 S.Ct. 1275]. Further, allowing the payment of back wages “not only trivializes the immigration laws, it also 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. 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 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.

[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, 554 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...