Admissibility of Evidence for the Undocumented Status of an Injured Construction Worker

By: Sean T. Devenney, Drewry Simmons Vornehm, LLP

In a recent construction jobsite accident/personal injury case, before the Indiana Court of Appeals, Noe Escamilla v. Shiel Sexton, the court ruled that the fact that the injured Plaintiff was an undocumented construction worker was admissible at trial because the Plaintiff was seeking future lost wage damage which made his status as an undocumented immigrant relevant.   In addition, the Court found that an expert testifying about the Plaintiff’s expected future lost wages, that failed to consider the fact that an undocumented construction worker would earn less money working in his home country, could not testify because the proposed testimony was legally irrelevant.

The concept of relevance for legal testimony is not necessarily consistent with the common understanding of the term relevance.  Generally, any testimony regarding a fact that is germane to the issues in the case will be allowed to be discussed at trial. However, where the probative value of the evidence is substantially outweighed by the likelihood that the jury/fact finder will be unduly prejudiced by the testimony, the evidence is said to be irrelevant, and therefore inadmissible at trial.  The concept of legal relevance is fluid, and based on the particular issues and circumstances in a given case.

In this case, the Indiana Court of Appeals was faced with two issues: (1) should the Defendant be able to discuss the fact that the injured construction worker, Plaintiff, was an undocumented immigrant; and (2) should the Plaintiff’s expert be allowed to testify about future lost wages when the Plaintiff’s expert failed to consider the impact of the Plaintiff’s immigration status in reaching a calculation on future lost wages.

With respect to the admissibility of evidence that the Plaintiff was an undocumented immigrant, the Court ruled that because of the way the Plaintiff postured the case, the fact that the Plaintiff was undocumented was relevant and admissible. In particular, the Court noted that because the Plaintiff was making a future lost wage claim, and that the Plaintiff’s future wages were undeniably impacted by his immigration status, the Defendant was entitled to bring the issue before the jury.  In essence the Court ruled that the unfair prejudice that a jury might bring to its deliberations, due to the Plaintiff’s immigration status was outweighed by the probative value associated with reaching a fair understanding of the Plaintiff’s likely future lost wages.

With respect to the decision to strike the Plaintiff’s expert, the Court ruled that the expert’s complete failure to consider the impact deportation might have on the Plaintiff’s future lost wages rendered the expert report irrelevant because it failed to “link” the expert testimony to the underlying facts of the case.

From a litigation strategy perspective, in cases involving injuries to undocumented immigrants, the undocumented Plaintiff is forced to make a choice:  Either pursue a future loss wage claim but recognize that the plaintiff’s status as an undocumented immigrant will go before the jury; or choose not to specifically pursue future lost wages and keep evidence of the undocumented status of the plaintiff a secret from the jury.   This is a tough choice indeed given the perception that a jury will be biased against an undocumented immigrant.

The case is also important for all parties in litigation in which expert testimony is presented.  This case makes it clear that the expert’s testimony should be based on the salient facts of the case.  The failure to have a nexus between the facts of the case and the expert opinion subjects the expert’s testimony to potential exclusion.

A link to the case can be found here.