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Pacheco v. Johnson

United States District Court, M.D. Tennessee, Nashville Division

July 6, 2017

JOSE OSMIN CALDERON PACHECO, Plaintiff,
v.
WILL JOHNSON, Defendant.

          MEMORANDUM & ORDER

          ALETA A. TRAUGER, UNITED STATES DISTRICT JUDGE

         Pending before the court is a Motion for Partial Summary Judgment (Docket No. 271) filed by the defendant, Will Johnson, to which the plaintiff, Jose Osmin Calderon Pacheco, has filed a Response in opposition (Docket No. 290), and the defendant has filed a Reply (Docket No. 299). The defendant has also filed a Motion to Exclude the Affidavit of Dr. John Ward. (Docket No. 301.) For the reasons discussed herein, the Motion for Partial Summary Judgment and the Motion to Exclude the Affidavit of Dr. John Ward will both be granted.

         BACKGROUND & PROCEDURAL HISTORY[1]

         This civil rights action arises from an altercation between the plaintiff and the defendant that took place in March of 2010 and resulted in severe injuries to the plaintiff. The plaintiff seeks, among other damages, lost future earnings based on the allegations that his injuries have left him paralyzed and unable to work. It is undisputed that, at the time of the incident giving rise to this action, the plaintiff, who immigrated to the United States from El Salvador in 2000, was not legally authorized to work in the United States. Due to criminal convictions, the United States Citizenship and Immigration Services had revoked the plaintiffs Temporary Protected Status ("TPS") and authorization to work in the United States between October and November of 2008. Further, there is no evidence in the record to support a finding that the plaintiffs status might ever change with respect to his authorization to legally work in the United States.

         On February 21, 2017, the court issued a Memorandum and Order addressing several motions in limine filed by the defendant, including a request to exclude all evidence related to the plaintiffs lost future earnings on the ground that the plaintiff is not authorized to work in the United States, pursuant to the Immigration Reform and Control Act ("IRCA"). (Docket No. 262.) The Order reopened discovery into the issue of the plaintiffs current immigration status and capacity to work in the United States. By this Order, the court also allowed the plaintiff to supplement the record regarding his estimated lost future wages to include 1) information about his immigration status and 2) an estimate of lost future earnings if he were working in El Salvador rather than the United States. Finally, the court ordered that any objections by the defense to the sufficiency of the plaintiffs claim for lost future earnings should be addressed by motion for summary judgment.

         On June 5, 2017, the defendant filed the instant Motion for Partial Summary Judgement on the plaintiffs claim for lost future earnings (Docket No. 270), along with a Memorandum in support (Docket No. 271), a Statement of Undisputed Material Facts (Docket No. 272), and a number of exhibits (Docket Nos. 275-278). By this motion, the defendant renews his argument that the plaintiff cannot make a claim for lost future earnings based on employment in the United States, due to his immigration status. The defendant also argues that the plaintiff has failed to make a claim for lost future earnings based on his lost capacity to work in El Salvador because he has not met his burden of providing an estimate for what those wages would be. In particular, the defendant challenges the admissibility of the opinions of plaintiff s expert, Robert Vance of Forensic & Valuation Services, PLC, with respect to the plaintiffs future lost earning capacity in El Salvador.[2]

         Indeed, the only evidence in the record to support the plaintiffs claim for lost future wages based on his earning capacity in El Salvador is found in a revised version of Mr. Vance's expert report, dated April 3, 2017.[3] In this report, Mr. Vance explains that he has calculated the plaintiffs future lost earning capacity in the United States based on the plaintiffs last known official wages from 2006 and earlier, when the plaintiff worked legally in the United States as a welder. (Docket No. 275-5.) Mr. Vance then used a methodology called "purchasing power parity conversion" (or PPP) to convert these future lost earnings into a dollar amount that would afford the same amount of goods and services in El Salvador, in the event that the plaintiff were to be deported. According to Mr. Vance, in the event that the court finds that the plaintiff is likely to remain in the United States, the plaintiff is entitled to recover lost future earnings in the amount estimated prior to the PPP conversion. Mr. Vance then states that the plaintiff should recover lost future earnings in the post-PPP-conversion amount, in the event that the plaintiff is likely to be deported to El Salvador. Mr. Vance explains that his calculations will allow the damages awarded to afford the plaintiff the same quality of life in either location.

         Mr. Vance, however, has made no effort to ascertain the wages that would have been available to the plaintiff as a worker in El Salvador.[4] To support his use of the PPP conversion, Mr. Vance cites to the following article: "Illegal Aliens: Damage Claims for Lost Wages, " Journal of Forensic Economics 17(3), 2004, pp. 281-288, Tyler J. Bowles, Department of Economics, Utah State University, Logan, UT (the "Bowles Article"). The Bowles Article, however, itself notes that there are two questions that need to be answered when calculating lost future wages based in an undocumented plaintiffs' lost capacity to work in a foreign country: first, what the plaintiffs earning capacity would be in the foreign country and, second, how to convert that amount into United States dollars to reach the correct damages amount. The article then explicitly states that it only addresses the second question, because the issues of where to find data necessary to answer the first question, and how to understand it, are too daunting. The article then goes on to explain PPP conversion as a means of conducting this second part of a damages calculation.

         On June 22, 2017, the plaintiff filed a Response to the defendant's Motion for Partial Summary Judgment (Docket No. 290), along with a Memorandum in support (Docket No. 291), a Response to the defendant's Statement of Undisputed Material Facts (Docket No. 292), and a number of additional exhibits (Docket No. 293). Attached to the plaintiff s Memorandum is the Affidavit of Claudia Maria Valenzuela Diaz, Consul General of El Salvador in the state of Georgia, which states that El Salvador does not maintain statistics as to the specific earnings rates for skilled workers. (Docket No. 291-1.) Also attached to the plaintiffs Response is the Affidavit of John O. Ward, Ph.D., explaining that a PPP conversion is the proper methodology to be used to determine a damages award for a foreign national and stating that Mr. Vance applied the PPP conversion correctly to his calculation of the plaintiffs damages, based on earnings in the United States. (Docket No. 291-2.) Dr. Ward does not address the question of whether Mr. Vance's report calculates the plaintiffs lost earning capacity based on his lost ability to work in El Salvador.

         On June 27, 2017, the defendant filed a Reply (Docket No. 299), along with exhibits (Docket No. 300). Also on June 27, 2017, the defendant filed a Motion to Exclude the Affidavit of Dr. John Ward, arguing that it is a late-filed expert report that is not admissible under Rule 56(c)(4). (Docket No. 301.)

         LEGAL STANDARD

         Rule 56 requires the court to grant a motion for summary judgment, if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). If a moving defendant shows that there is no genuine issue of material fact as to at least one essential element of the plaintiffs claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings, "set[ting] forth specific facts showing that there is a genuine issue for trial." Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "In evaluating the evidence, the court must draw all inferences in the light most favorable to the non-moving party." Moldowan, 578 F.3d at 374 (citingMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         At this stage, '"the judge's function is not... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.'" Id. (quoting Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 249 (1986)). But "[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient, " and the party's proof must be more than "merely colorable." Anderson v. Liberty Lobby,477 U.S. 242, 249, 252 (1986). An issue of fact is "genuine" only if a ...


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