by: Colin E. Flora
Today’s discussion touches upon a hot-button issue in the current political climate: unauthorized immigration. The catalyst for our discussion is a decision from the Indiana Supreme Court this past week, which answered two issues of first impression in the state. As Chief Justice Rush summarized those questions: “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?” The issues present both a question of substantive tort law–whether immigration status impact damages–and of evidentiary procedure–the manner for admitting evidence of immigration status.
So as not to burry the lead, here is the Court’s summary of its holding:
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.
With that out of the way, let us now look to how the court got there.
The facts of the case are not particularly important to our discussion, but I will provide them briefly for a little color. The plaintiff moved to the United States from Mexico as a teenager with his parents. While working as a masonry laborer, he was injured and brought a case against the general contractor for the construction project. As you’ve guessed, the plaintiff is neither a citizen of the United States nor in the country pursuant to a visa. His wife and children, however, are American citizens.
As part of his claim, the plaintiff sought damages for his decreased earning capacity. Before the trial, the defendant argued that the plaintiff could not recover decreased earning capacity due to his citizenship status, that his status should be admissible because he could be deported at any time, and that the plaintiff’s expert testimony should not be admissible because it did not account for citizenship. The trial court agreed and the case was appealed. In a split decision, the Court of Appeals of Indiana affirmed the trial court. The Indiana Supreme Court granted transfer, leading to the decision that we discuss today.
The first question was simply whether a person unlawfully working in the United States could recover damages for lost earning capacity. The Indiana Supreme Court first looked to the Open Courts Clause of the Indiana Constitution, which states, “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.” The court focused on the statement “every person[.]” In determining that “every person” includes unauthorized immigrants, the court looked to the historical basis for the clause:
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.” 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.
This formulation—which directly informed state Open Courts Clauses—shows that Indiana’s Open Courts Clause does not play favorites. Our Constitutional history and foundation demonstrate that the Open Courts Clause applies in full force to unauthorized immigrants.
Of course, the Indiana Constitution does not have the final say, as it is beholden to the supremacy clause of the federal constitution. Consequently, the court had to analyze whether a decision by the Supreme Court of the United States dictated a different result, as the defendant argued. The case, Hoffman Plastic Compounds, Inc. v. N.L.R.B., determined that allowing backpay for undocumented workers under the National Labor Relations Act would undermine federal immigration policy under the Immigration Reform and Control Act of 1986. The Indiana Supreme Court determined that Hoffman Plastic Compounds was not controlling because the case did not set down a dictate of substantive state tort law; rather, it merely reconciled two federal statutes.
Having found that non-U.S. citizens could recover for lost earning capacity, the next question was what, if any, relevance immigration status might play in determining the amount to be awarded. The first question is whether the evidence was relevant under Rule 401, because, as set forth in Rule 402, the default rule is that relevant evidence is admissible. To answer the relevancy question, the court looked to decisions from other states–remember, this was a case of first impression in Indiana:
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.
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.
The Indiana Supreme Court determined that the evidence was, in fact, relevant under Rule 401, and, therefore, presumptively admissible under Rule 402:
[Defendant] argues that [Plaintiff]’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. Because of this potential reduction in earning capacity, unauthorized immigration status clears the low bar set by Rule 401’s “liberal standard for relevancy.”
An important note is to not approach the court’s statement in a strict sense. The language seems to suggest that deportation is a virtual synonym for inability to work. It is entirely possible, indeed probable, that a deported person would continue to work somewhere, just not in the United States. Consequently, the measure of damages would need to be the decreased earning capacity in the new market in which that person is located after deportation. To treat deportation as a total bar to recovery for diminution in ability to earn wages would be ludicrous. It simply requires an adjustment to show the calculation.
To illustrate this point, realize what the decreased earning capacity damage is meant to compensate. It starts from the hypothesis of the injured person as though s/he was never injured. From there, the question is what would that hypothetical person have earned in wages from working. The analysis then looks to what the injured person is now capable of earning. The award is then based upon the difference between the two points. Thus, if the person is more likely than not to be deported, then the analysis needs to start with what the s/he would have been able to earn in the non-U.S. market without the injury and then look at what s/he is able to earn with the injury.
The next question is whether Rule 403’s exclusion of relevant evidence kicks in to trump the default dictates of Rule 402. As the court explained:
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. 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.” We conclude that in decreased earning capacity claims, these risks will often substantially outweigh the probative value of unauthorized immigration status.
After analyzing various approaches, the court decided the approach in Indiana will be based on a determination of whether the person is more likely than not to be deported.
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.
The burden of establishing deportation probability in this context is upon the defendant. The court found that placing the burden upon the plaintiff would be impractical: “Requiring plaintiffs to prove that they will not likely be deported would require them to prove a negative—a burden we rarely impose.”
Notably, as a Rule 403 analysis, the determination of whether the plaintiff is likely to be deported is made by the judge, not the jury. Interestingly, because the analysis is confined to Rule 403, it is ostensibly inapplicable outside the context of jury trials. (See cases collected below). But the logic does not seem to hold. The functional reality of the standard created by the Indiana Supreme Court is to remove immigration status from the calculation when juries are involved unless the likelihood of deportation is more probable than not. This test would result in disparate results if it is not applied in the bench trial context as well, because the court would be free to factor even a reasonably likely, though not more likely-than-not, chance of deportation into the damages calculation.
Lastly, the court looked to the admissibility of expert testimony on earning capacity. We have previously discussed the admissibility of expert testimony. The analysis here does not change a great deal. The court concluded that the experts should have been able to testify for two reasons. First, immigration status does not prohibit recovery of decreased earning capacity, so expert testimony is permissible regardless of whether immigration status can be admitted to counter it. And, second, the challenge to the expert testimony was not that their methodology was unsound, but rather that they reached an erroneous conclusion for failure to address the additional factor of citizenship status. This, the court determined, was an issue of weight, not admissibility. Consequently, the proper result should have been to allow the testimony and to permit the defendant to cross-examine the experts at trial.
Join us again next time for further discussion of developments in the law.
- Escamilla v. Shiel Sexton Co., ---N.E.3d---, No. 54S01-1610-CT-546, 2017 Ind. LEXIS 341 (Ind. May 4, 2017) (Rush, C.J.).
- Escamilla v. Shiel Sexton Co., 54 N.E.3d 1013 (Ind. Ct. App. 2016) (May, J.; Baker, J., dissenting), trans granted, ---N.E.3d--- (Ind. 2017).
- Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 122 S. Ct. 1275, 152 L. Ed. 2d 271 (2002) (Rehnquist, C.J.).
- Johnson v. State, 501 N.E.2d 442, 445 (Ind. 1986) (Givan, C.J.) (“We presume that a judge is able to dispassionately perform as the trier of fact despite being called upon to rule on evidence which may be deemed inadmissible or to examine photographs which would be unduly prejudicial if viewed by a jury.”).
- United States v. Geok Soo Lim, 57 F. App’x 701, 704 (7th Cir. 2003) (“Finally, we reject Lim’s Rule 403 claims, which are inapposite in a bench trial, where there is no risk of jury prejudice.”).
- Norwest Bank, N.A. v. Kmart Corp., No. 3:94-CV-78RM, 1997 U.S. Dist. LEXIS 3422, at *8 (N.D. Ind. Jan. 23, 1997) (Miller, J.) (“Rule 403 presents little concern in a bench trial[.]”
- 12 Robert Lowell Miller, Jr., Indiana Practice Series: Indiana Evidence § 403.103 (3d ed. 2007).
- Ind. Const. art. 1 § 12.
- Ind. Evidence Rule 401.
- Ind. Evidence Rule 402.
- Ind. Evidence Rule 403.
- U.S. Const. art. VI cl. 2.
- National Labor Relations Act, codified at 29 U.S.C. §§ 151 et seq.
- Immigration Reform and Control Act of 1986, codified at 8 U.S.C. §§ 1324 et seq.
- Colin E. Flora, So You Think You're an Expert: Intro. to Expert Testimony & Review of Carter v. Robinson, Hoosier Litig. Blog (Nov. 9, 2012).
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.