In a case of first impression, the Indiana Supreme Court has addressed two issues that affect actions arising from injuries to plaintiffs who are in the United States unlawfully. In Escamilla v. Shiel Sexton Co., Inc., 73 N.E.3d 663 (Ind. 2017), an unauthorized immigrant (a Mexican citizen) was injured while working as a masonry laborer at an Indiana job site. He sued the general contractor, which argued that his immigration status should bar him from recovering damages for decreased earning capacity. The Escamilla court addressed both that issue and the admissibility of the plaintiff's status.
As to the first issue, the court ruled that the plaintiff could recover damages for decreased earning capacity. The court relied upon the Open Courts Clause in the state's constitution, which mandates that courts shall be open and that "every person . . . shall have remedy by due course of law." Id. at 665. The court reasoned that "[w]e cannot read the Open Courts Clause's 'every person' guarantee to exclude unauthorized immigrants." Id. at 667.
Regarding admissibility of the plaintiff's immigration status, the court first considered whether an injured party's status is relevant. The court found that the plaintiff's immigration status is relevant because it "affects his chances of deportation and ability to work in the United States over the course of his career." Id. at 670. For that reason, "a jury could factor in the probability that his immigration status would lead to deportation or an inability to work, and reduce damages proportionally." Id.
Next, the court considered whether the probative value of such relevant evidence might be outweighed by the danger of unfair prejudice or confusion of the issues. The court found that evidence of unauthorized immigration status "carries a high risk of confusing the issues and some risk of unfair prejudice." Id. As to confusion of issues, the court noted that immigration policy is constantly shifting, and plaintiffs may have many opportunities to adjust their immigration status. The court also noted the potential for unfair prejudice because immigration status "introduces a factor into the case that might encourage the jury to dislike or disapprove of [a party] independent of the merits" and because "illegal immigration is, for many, a sensitive issue . . . [that] 'can inspire passionate responses that carry a significant danger of interfering with the fact finder's duty to engage in reasoned deliberation.'" Id. at 675. Based on a balancing of the probative value of the evidence against its potential for prejudice or confusion of issues, the court held that evidence of an injured party's unlawful immigration status is admissible only when the proponent of the evidence can show that the plaintiff more likely than not will be deported. Id. at 676.