May, J.
In this interlocutory appeal from the trial court’s pre-trial orders regarding the admissibility of evidence, the parties raise a number of broad policy questions regarding whether and how an injured plaintiff’s status as an undocumented immigrant should impact that plaintiff’s ability to recover future lost wages from an alleged tortfeasor. We decline their invitations to make sweeping pronouncements about the rights of immigrants, however, and rule narrowly on the evidentiary issues raised. Although we disagree with part of the trial court’s reasoning, we affirm its denial of Noe Escamilla’s motion in limine and its grant of Shiel Sexton’s motion to exclude Escamilla’s experts, and we remand for further proceedings in accordance with our opinion. [Footnote omitted.]
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The trial court ruled the evidence from Escamilla’s proposed expert witnesses was not relevant because Escamilla’s damages could not be based on United States wages when he could not work legally in the United States. As we have explained, a fact-finder may award damages for lost earning capacity to an undocumented immigrant based on United States wages if the evidence presented at trial supports such a finding. We therefore cannot affirm the trial court’s decision based on its stated reason.
Nevertheless, we affirm the court’s in limine order excluding Escamilla’s experts and their report on another basis. At a deposition of one of those experts, Sara Ford, the questioning revealed Ford had not taken into account the fact that Escamilla was an undocumented immigrant:… As such, the report Ford and Mussin prepared had not been adequately tied to the facts of Escamilla’s case. Cf. Ortiz v. Cooper Tire & Rubber Co., 2015 WL 1498713 at *8-9 (W.D. Ok. 2015).
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The trial court ruled it would not exclude evidence of Escamilla’s status as an immigrant because “Escamilla’s immigration status is relevant to the issue of damages on his claim for lost future income.” (App. at 200.) As is true with all forms of evidence, Escamilla’s status as an immigrant should be excluded if it has no relevance, or if the risk of prejudice outweighs its probative value. Evid. R. 403. See also Crenshaw v. McMinds, 456 N.E.2d 433, 434 (Ind. Ct. App. 1983) (trial court committed reversible error by admitting evidence of decedent’s felony conviction when that fact was not relevant to decedent’s lost earning capacity and was highly prejudicial), reh’g denied.
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…We agree, and hold Escamilla’s immigration status is relevant to a claim of lost earning capacity only if: (1) Escamilla claims lost earning capacity in United States wages, and (2) Escamilla’s immigration status leaves him with any risk of deportation. See, e.g., Velasquez v. Centrome, Inc., 183 Cal. Rptr. 3d 150 (Cal. Ct. App. 2015) (evidence of immigration status is irrelevant in personal injury action when plaintiff does not claim damages for lost earnings or earning capacity). And see Ayala, 81 A.3d at 597 (“Immigration status is relevant to a claim for lost wages for the simple reason that the legal ability to work affects the likelihood of future earnings in the United States.”).
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However, it is not apparent how Escamilla’s trier of fact might accurately determine his future earning capacity without that knowledge, as it must determine whether to award lost earnings based on United States wages, Mexican wages, or some other standard. The prejudicial effect of that evidence therefore currently does not outweigh its probative value. As Escamilla is claiming lost earning capacity based on United States wages and has an immigration status that might leave him with some risk of deportation, we affirm the trial court’s denial of Escamilla’s motion to exclude evidence of his immigration status. Should Escamilla’s immigration status change before trial, such that he no longer is at risk of deportation, then the trial court would need to reevaluate the relevance of the evidence in light of our analysis.
Conclusion
Based on the circumstances at the time of the trial court’s order, we affirm the grant of Shiel Sexton’s motion to exclude the testimony and report from Escamilla’s expert witnesses, we affirm its denial of Escamilla’s motion in limine to exclude evidence of his status as an undocumented immigrant, and we remand for further proceedings consistent with this opinion.
Affirmed and remanded.
Bradford, J., concurs.
Baker, J., dissents with separate opinion.
Baker, Judge, dissenting.
When the plaintiff in a civil action is also an undocumented immigrant, the majority concludes that juries and experts cannot determine an appropriate award of damages for loss of future income without first considering the plaintiff’s immigration status. I do not see how such evidence would be of any use in arriving at a more appropriate award of damages, and I believe that it will likely result in prejudice to the injured party and serve as a bad incentive for those who employ undocumented immigrants. I respectfully dissent.