In a divided opinion, the Indiana Court of Appeals ruled that evidence of an undocumented alien's status is admissible for purposes of determining a worker's work-related damages for lost future income. The ruling severely limits the amount of money Noe Escamilla will be able to recover in a personal injury action he brought against the general contractor for the work site where he was working at the time he was injured.
Escamilla worked as a masonry laborer for a subcontractor, Masonry By Mohler, which was performing work on a construction site where Shiel Sexton acted as the general contractor. Because of the injuries Escamilla suffered after falling on ice, he is no longer able to work as a masonry laborer. He sued Shiel Sexton because the construction contract covering work on the site held the general contractor responsible for maintaining the work site free of hazards to laborers working on the job site.
The problem for Escamilla in recovering lost future wages is his status as an undocumented alien. The facts in the case indicate that Escamilla never obtained work authorization to work in the United States; rather, he used false documentation to secure his employment. The case doesn't address whether his employer knew he was using false documentation in order to work, which I personally think is a factor that should be taken into account. Most employers know whether their employees are using false documentation because they get a no-match response when they file their payroll taxes.
Shiel Sexton argued at the trial court level that evidence of his undocumented status should be admitted because his future earnings must be based on his earning potential in Mexico rather than the U.S. since he cannot work legally in the U.S. presently. Obviously, Escamilla's attorneys wanted that evidence kept out not only because of its prejudicial effect but because future earnings in Mexico would be less than if calculated based on employment in the U.S. The facts indicate Escamilla has spent his entire adult life working in the U.S., albeit illegally.
Judge Melissa May was joined by Judge Cale Bradford in affirming the trial court's decision denying Escamilla's motion in limine barring evidence of his undocumented status or offering expert testimony based on employment in the U.S. rather than in Mexico. The majority opinion believed the prejudicial effect of that evidence didn't outweigh its probative value. Judge John Baker filed a dissenting opinion, believing the majority failed to properly account for the evidence's prejudicial effect. He also thought, if the evidence is allowed, the defendant should have to show that Escamilla faced imminent deportation from the country, which the facts don't support.
During the oral argument, Escamilla's attorneys offered evidence that he has a pending adjustment of status case before USCIS based on his marriage to a U.S. citizen, which has a strong likelihood of approval. The Court of Appeals struck that evidence from the record because it had not been offered at the trial court below. The majority opinion notes, however, that if Escamilla is able to obtain legal status with work authorization by the time of trial, it directed the trial court to re-evaluate the probative value of the evidence of his undocumented status and whether his future wages should be based on potential earnings in the U.S. as opposed to Mexico.
Hat tip to Indiana Law Blog.
Whatever happened to the "clean hands doctrine." You have to come to Court with clean hands yourself before you go knocking down the opponent for their shortcomings. Isn't this construction firm in violation of local, State and Federal laws and regulations by hiring an illegal immigrant in the first place, and failing to let him go after those facts became known. Now they want lesser damages imposed because of the guy's status, but they obviously knew that. Their hands aren't clean here. Who prosecutes the construction firm? What are their damages? Who will order them to discontinue hiring illegal immigrants?
Just to be clear, Escamilla worked for the subcontractor, not the GC, which is the defendant in this suit. I agree that it would seem implausible that his employer didn't know he was undocumented. The GC may not have had knowledge of the legal status of the subcontractor's workers.
With time on my hands and no dog in the matter I'm thinking that the loss of the Indiana law blog is a serious matter for being a blow against the public having a reliable source of information. What happened in this instant case to workman's compensation being a barrier to other recoveries? I am pretty sure the worker's paycheck was tapped to pay for that "Insurance". Too, the obligation of the employer to provide a safe working place ought not depend upon the nationality of the human being injured by some corner cutting business entity. Of course, having noted that, much of OSHA is ex post facto and cobbled together crap that only increases costs to society. Still, construction firms seem to be great offenders of even reasonable practices suggested to them by their own insurance companies.
If he was in Mexico,instead of being here illegally ,he wouldn't have fallen on the ice. Case dismissed.
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