A Mexican man who injured his back while working on a masonry project in Indiana was dealt a legal setback Thursday in his efforts to force the contractor to pay his lost future earnings at the U.S. pay rate rather than the rate in his home country.
In a 2-1 decision, the Indiana Court of Appeals ruled Noe Escamilla, 29, won't be able to able to call two witnesses to argue the claim or avoid having the company bring up his immigration status at trial. Escamilla, who sued Indianapolis construction company Shiel Sexton, has been living in the U.S. without legal permission since he was a teenager.
The judges found that his immigration status is relevant to his lost earnings claim if he "claims lost earning capacity in United States wages" and his "immigration status leaves him with any risk of deportation."
Escamilla's attorney, Timothy Devereux, said he's disappointed with the ruling and plans to ask the state Supreme Court to take up the case. He said raising Escamilla's immigration status could sway the jury when the case should be about his lost earnings.
"At the moment, he's not facing any threat of deportation. And that was the whole point — there was never any evidence presented that there was any risk of him being deported," Devereux said Thursday.
In his dissent, Judge John Baker wrote that allowing Escamilla's immigration status as evidence in the case "could potentially transform a tort case into a battle of immigration experts, taking focus away from the injury to be redressed."
Escamilla sued Shiel Sexton for lost future wages after he slipped on ice in 2010 and severely injured his back while helping lift a heavy masonry capstone at Wabash College. Court documents say a doctor found Escamilla's injury left him unable to lift more than 20 pounds, effectively ending his career as a masonry laborer.
The civil trial is on hold until Escamilla's challenges to the Montgomery County trial court's rulings are resolved. Shiel Sexton plans to raise Escamilla's immigration status during trial and argue that any lost wages he is able to claim should be based on the rate of pay available in Mexico, and not U.S. wages.
The company also wants to introduce evidence that Escamilla fraudulently landed his job with a masonry company that was doing work at the Wabash College job site where Shiel Sexton was the general contractor. Shiel Sexton attorney John Mervilde declined comment Thursday on the ruling.
During oral arguments before the appeals court in January, Devereux conceded that his client had used a fake Social Security number to land his masonry job after he traveled to the U.S. with his family as a teenager. But he said Escamilla filed paperwork in 2014 seeking permanent U.S. residency, and his wife and three children are all U.S. citizens.