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  Texas Supreme Court rules surveillance video admissible, remands for new trial.

March 9th, 2018

by Todd Crawford

In Diamond Offshore Servs. v. Williams, 2018 Tex. LEXIS 186 (Mar. 2, 2018), the Texas Supreme Court held a trial court erred in excluding surveillance video of a personal injury plaintiff without first viewing the video. The court also recognized that a video can be used to show substantive evidence of the claimant’s work status or pain level, independent of its impeachment value. 

The Plaintiff was a senior mechanic on a Diamond Offshore drilling rig who allegedly sustained injury to his back while working alone on a large, heavy piece of equipment. Plaintiff underwent two back surgeries but allegedly continued to suffer with back pain and related neurological issues with his foot and toes, causing his treating physician to declare him “totally disabled.” After the Plaintiff filed suit, he underwent a Functional Capacity Evaluation (“FCE”), which indicated he could perform medium-level physical labor. During the FCE, Plaintiff completed a pain questionnaire that was consistent with patients who were exaggerating their symptoms. Diamond engaged an investigator who secured video of the Plaintiff operating a mini-excavator to clear away a run-down mobile home. The video also showed him bending over thirty-four times in a consecutive four-minute span to pick up smaller debris from the ground and throw it into a trailer bed. The following day the investigator filmed the Plaintiff working on his lifted truck over a thirty-two minute period, securing twenty-eight minutes of total video footage. The Plaintiff was perched on a stool for much of the video but also was seen gathering tools and materials. At one point, he used his body to maneuver a large “monster wheel” onto his truck. 

At trial, the Plaintiff testified he was in constant pain and unable to hold a job because of his pain, physical restrictions and daily pain medication. His treating physician and other experts supported this assessment, specifically disagreeing with the FCE’s work-capacity conclusions and discounting it as outdated because Plaintiff's condition had worsened in the intervening years. Plaintiff attempted to downplay the surveillance by suggesting that he attempted to perform work on his vehicle and using the mini-excavator, but he could not engage in those activities for as long as he could before his injuries, and he hurts when he tries, both during and after. Plaintiff also presented testimony from lay witnesses -- family and friend -- describing their observations of his injury and pain.

Diamond offered the surveillance video at trial to counter Plaintiff’s evidence and to corroborate the findings of the FCE. Plaintiff objected to the video claiming impeachment was improper because he admitted he could engage in the activities portrayed in the video, just not for an extended time period and not without pain. The Plaintiff also claimed the video was not a fair representation of his disabilities or abilities because it did not reflect life inside his home or the copious amount of pain medication he must take.

At a hearing on a motion in limine, the trial judge admitted she had not watched the video and then ruled Diamond could hold the video in its “reserve bank for impeachment, and that’s it and if the Plaintiff opens the door, then we’ll take a look at it.” Diamond offered the video on three separate occasions, both for impeachment and as substantive evidence regarding the Plaintiff’s pain and physical abilities. Each time, the judge stood by her previous ruling.

The jury returned a verdict for the Plaintiff, finding nearly $10 million in lost earning capacity, medical expenses, pain and suffering, disfigurement and physical impairment. A split Court of Appeals affirmed, with the dissent arguing to reverse and remand based on the exclusion of the surveillance footage, which “goes to the heart of each of [Plaintiff’s] damages questions.” 

The Texas Supreme Court reversed, holding the trial court’s ruling was not entitled to any deference because the trial judge excluded the surveillance video without ever having viewed it. That constituted an abuse of discretion. The court then adopted a general rule that a trial court should view video evidence before ruling on admissibility when the contents of the video are at issue.

After finding the trial court’s ruling was not entitled to deference, the Texas Supreme Court evaluated its admissibility under Texas Rule of Evidence 403. The court found the video relevant and admissible because it depicted the Plaintiff performing physical activities he enjoyed and which could have potentially been the basis for employment on two consecutive days. The defendant also attacked the Plaintiff’s credibility, both as to the circumstances of his injury and whether he overstated the extent of his limitations and pain. The video could have helped the jury evaluate the Plaintiff’s truthfulness. The court also rejected the Plaintiff’s argument that the video was properly excluded as cumulative because he admitted he could do all the activities depicted. The court noted that videos are qualitatively different than other types of evidence. “Allowing the jury to see what [Plaintiff] looked like while engaging in these activities – including how vigorously worked, whether he limped or showed any difficulty in moving, how many times he bent over in quick succession, and whether he showed any signs of discomfort – would have provided information that [Plaintiff's] bare testimony could not. The video was not needlessly cumulative.” 

Plaintiff also argued the video unfairly prejudiced him by suggesting he could work without rest and without pain. But the court recognized that was exactly why Diamond offered the evidence – to show the Plaintiff and his witnesses overstated the extent of his physical limitations and pain. Mere damage to an opponent’s case does not constitute unfair prejudice. 218 Tex. LEXIS 186, *17, citing James v. Carawan, 995 So. 2d 69, 78 (Miss. 2008).

The court also rejected Plaintiff’s arguments to the effect that the video showed only limited periods of time: “Alleged omissions or inaccuracies typically go to the weight of the evidence, not its admissibility.” The court explained that had the jury been able to see the video, the Plaintiff would have had an opportunity to explain what he did during the rest of those days and how he felt during and after the activities shown. “The video’s probative value is significant, and concerns about cumulativeness, unfair prejudice, and misleading the jury do not substantially outweigh this value.” Accordingly, the video could not be excluded under Rule 403.

Finally, the Texas Supreme Court found the exclusion of the video was harmful, i.e., that it “probably caused the rendition of an improper judgment.” In reaching this conclusion, the court noted the Plaintiff’s testimony he could not work because of pain, medication and related physical limitations. He testified about constant pain and daily struggles in trying to do activities he enjoys even for short periods, like working on his truck or operating his mini-excavator, and how he pays for it later when he does. He also presented a multitude of friends and family members who described his pain and deteriorating condition. Significantly, during the pre-trial proceedings, Plaintiff argued these lay witnesses were important to explain what they saw physically in the man before and after the accident. According to the court, if testimony about what others saw Williams do was important, then giving the jury an opportunity to actually witness Williams performing similar activities was just as important. Additionally, the video could have supported the FCE’s conclusions that Williams was able to perform medium-level work and was exaggerating his symptoms while understating his abilities. Further, one of Diamond’s theories of the case was credibility. If the jury believed Plaintiff was exaggerating his pain and physical limitations, that might have undermined his overall credibility and affected the liability determination as well. 

Ultimately, the Texas Supreme Court reversed and remanded for a new trial.

The decision lays a foundation to introduce surveillance videos for substantive evidence, in addition to their impeachment value. It also suggests that a personal injury claimant cannot render surveillance video inadmissible simply by admitting he can perform the activities depicted in the video, as Williams tried to do.




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