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Undocumented worker's injury suit puts major issues before justices

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Indiana Lawyer Focus
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An undocumented immigrant’s workplace injury — and how much he may be entitled to — has put the rising number of foreign-born workers, the rights they can expect, and the responsibilities of employers squarely before the Indiana Supreme Court.

“Even I didn’t understand the full impact immigrants have on Indiana’s economy,” said Indianapolis personal injury attorney Tim Devereux, who represents plaintiff Noe Escamilla. “They’re a vibrant piece of our economy, and they deserve the protections of Indiana law.”

Devereux Devereux

Escamilla was injured while working on a construction crew building a new baseball stadium at Wabash College. He was employed by Masonry by Mohler Inc., a subcontractor for general contractor Shiel Sexton. Doctors told him after his injury he could no longer lift more than 20 pounds. A father of three American children who’s lived and worked in the U.S. nearly a decade and is married to an American citizen, Escamilla filed a personal injury suit seeking $29,000 for medical bills and claiming loss of future wages between $578,194 and $947,421.

That’s when his immigration status became an issue, and Indiana courts to date have ruled against him on that basis.

One question before the Supreme Court is whether Escamilla’s immigration status should have been admitted as evidence; another is whether the trial court rightly limited expert testimony about Escamilla’s future earnings to what he might have earned in his native Mexico, where he is legally permitted to work.

Escamilla Escamilla

“Anything that has to do with immigration status and the workplace are pretty much hot topics, and it’s not limited to the construction business,” said Riley Bennett & Egloff LLP partner Donald Smith, who represents management in labor and employment cases. Smith isn’t involved in this case but said it’s closely watched by construction and employment attorneys. “It’s a much broader issue than just what’s presented in this case, I believe.”

Focus immigrants boxQuestion of status

A divided Indiana Court of Appeals panel affirmed rulings in Montgomery Superior Court that let in evidence of Escamilla’s immigration status and barred expert opinions of what his future earnings might have been in the United States. In a majority opinion by Judge Melissa May joined by Judge Cale Bradford, the court acknowledged the potentially prejudicial nature of Escamilla’s immigration status, but found it didn’t outweigh its probative value, because Escamilla may face some risk of deportation.

In a terse dissent, Judge John Baker wrote that Escamilla’s status was so prejudicial that it shouldn’t have been admitted under Indiana Rules of Evidence. His status also appears somewhat subjective; Baker wrote that Escamilla was pursuing permanent residency status, the likelihood of his deportation is “something above zero,” and that the majority opinion was creating a bad incentive for employers to hire undocumented immigrants.

Smith acknowledged that may be so. “There are some employers — none of my clients, of course — who would have an incentive to hire someone they suspect to be illegal,” he said. He noted it can take many months for the Social Security Administration to identify fraudulent use of numbers and inform employers so they can take action. By that time, a job might be finished. “It’s really a situation of employer beware.”

Shiel Sexton argued in its brief opposing transfer to the Supreme Court that Escamilla has never been a U.S. citizen or legal resident. “Escamilla’s immigration status has been something of a moving target in this litigation,” the company argued, contending it “located evidence showing that Escamilla had used a Social Security number … issued to a California address in the late 1980s, at a time when Escamilla was a toddler living in Mexico.”

Mervilde Mervilde

John Mervilde, an attorney with Meils Thompson Dietz & Berish, which represents Shiel Sexton, said a number of cases in other jurisdictions have determined that misuse of a Social Security number is an important factor in determining future earnings.

“This is not a case about what federal immigration policy should be,” he said. The issue, “is whether a person who’s not lawfully entitled to work in the United States can make a future earnings claim in an Indiana court.”

Big decision?

Lewis & Kappes P.C. director Tom Ruge said the court could narrowly tailor its decision to the admissibility of evidence in Escamilla’s case, or it could set broad policy and provide guidance on a burgeoning issue to courts and lawyers. That’s what he advocated in an amicus brief in this case for the Indiana Chapter of the American Immigration Lawyers Association.

“It’s kind of tough to make a rule that applies everywhere. There really are a wide variety of circumstances” surrounding individual immigration cases, Ruge said. But the court also has an opportunity to steer away from limiting the exposure of employers hiring undocumented workers. He agreed with Baker’s dissent that this could create bad incentives. “It is the job of the Supreme Court to take those kinds of things into consideration. The policy impact is broader than just a single case.”

The amicus brief of the immigration lawyers and a brief from the Indiana Trial Lawyers Association urge the court to find immigration status irrelevant and inadmissible on public policy grounds. Undocumented immigrants often are employed in the most dangerous professions for less pay. As their number grows, the immigration lawyers’ brief argues, “Employers of injured workers should not be able to evade their responsibility for compensable injuries because of an employee’s immigration status. Granting employers that windfall encourages them to hire undocumented workers and incentivizes unsafe practices.”

Smith Smith

Smith said he’d like to see the court lay out the circumstances under which a worker’s immigration status is admissible. This would help defense attorneys determine the value of cases, and it could impact the course of future litigation. “To me, that is as big an issue as anything else,” he said.

The court’s ultimate decision could impact workers’ compensation cases and others, he said. He noted that in years past, undocumented workers were ineligible for those benefits if injured in the workplace.

“The burden should be on the employer to hire people who are legally allowed to work here,” Smith said. “The public policy is going to be declared by this decision.”

So far, 28 state and federal courts have considered whether an undocumented worker can make a claim for U.S. wages, and 20 have ruled they may. Only three have ruled as Indiana has that those workers may only recover lost wages based on their country of origin rates, ITLA argues in its amicus brief.

“The only group that will benefit from such a decision are unscrupulous employers and their insurers (who charge insurance premiums and analyze risk based on U.S. dollars, not Mexican pesos),” the brief argues. “… Immigration status has no place in personal injury cases because allowing it to influence a jury and preclude wage claims will do much more harm than good, ultimately resulting in manifest injustice.”

The Supreme Court has scheduled oral arguments in Noe Escamilla v. Shiel Sexton Company, Inc., 54S01-1610-CT-546, for 9 a.m. Nov. 22.•

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