On Camera
The Texas Supreme Court solidifies strategic use of surveillance.
By Garreth A. DeVoe and Jeffrey S. Valliere
If “a picture is worth
a thousand words, then a video is worth exponentially more.”1
Thus stated the Texas Supreme Court in its recent seminal holding in
Diamond Offshore Servs. v. Williams. In personal injury
lawsuits, a defendant’s most useful litigation tool is often video
surveillance. Unlike witness testimony, video evidence allows a jury to
see for themselves how a plaintiff acts in his or her post-injury daily
life. Indeed, the issue of the admissibility of surveillance video of
injured plaintiffs has become so prevalent that the Texas Supreme Court
recently held that, but for rare exceptions, trial court judges must
review relevant video evidence proffered in personal injury cases before
deciding whether to exclude same.2
Diamond Offshore Servs. v. Williams
In Diamond Offshore Servs. v. Williams, the Texas Supreme
Court overturned an approximately $10 million jury award because the
district judge failed to review video footage of the purportedly injured
plaintiff prior to excluding the video.3 There, Diamond
Offshore Services Limited and Diamond Offshore Services Company
(collectively, “Diamond Offshore”) employed Willie David Williams as a
senior mechanic.4 In January 2008, while working on an
offshore drilling rig owned by Diamond Offshore, Williams allegedly hurt
his back on a large piece of equipment.5 After two subsequent
back surgeries, Williams alleged that he continued to suffer back pain
and neurological problems with his foot and toes.6 Further,
his treating physician declared him “totally disabled[.]”7
Williams never returned to work.8
In May 2011, Williams filed Jones Act negligence and unseaworthiness
claims against Diamond Offshore.9 He also underwent a
functional capacity evaluation, or FCE, the author of which concluded
that his pain questionnaire responses were “‘consistent’ with patients
who are ‘exaggerating their symptoms,’” and that he could perform
medium-level physical labor with certain physical
restrictions.10
During discovery, Diamond Offshore retained a surveillance
investigator, and on the first day of surveillance, for 27 minutes, the
investigator videotaped Williams using a mini-excavator to clear away a
dilapidated mobile home and bending over 34 times over a four-minute
period.11 On the second day, for 28 minutes, the investigator
videotaped Williams sitting on a stool while occasionally gathering
tools and materials and using his body to maneuver a large “monster
wheel” onto his truck.12
At the plaintiff’s motion in limine hearing on the video, the district
court judge, after stating that she had not watched the video, ruled
that Diamond Offshore could only use the video for impeachment purposes
and if Williams “opens the door[.]”13 At trial, Williams
testified that he was unable to hold any job because of his constant
back pain and physical restrictions, and his treating physician
disagreed with the FCE’s conclusion as outdated.14 Although
Diamond Offshore proffered the surveillance video on three separate
occasions during trial to counter this evidence and corroborate the FCE,
the district court judge continued to exclude the
video.15
Subsequently, the jury returned a verdict in Williams’ favor, awarding
him nearly $10 million in damages, nearly $4 million of which was
awarded specifically for pain and suffering.16 In a split
decision, the court of appeals affirmed the verdict, determining that
the district court did not abuse its discretion in excluding the
video.17
The Texas Supreme Court held that (1) the district court abused its
discretion by not watching the video prior to determining its
admissibility; (2) the video should not have been excluded from the
evidence; and (3) the district court’s exclusion of the video
constituted a harmful error.18 The court found that the
district judge had abused her discretion based on the district judge’s
statement that she had not watched the video.19 The court
held that trial courts must view video evidence before ruling on its
admissibility where the video’s contents are at issue, unless (a) it is
“obvious” that the potential prejudice of the video substantially
outweighs any probative value the video might have;20 (b) the
video evidence is a video deposition in which no party is objecting to a
visual aspect of the deposition; and/or (c) the proffering party offers
a lengthy video too close to trial.21 The court found that
the video in this case satisfied none of the exceptions and that the
district judge should have viewed the video herself to determine its
admissibility.22
The court also found that the video should not have been excluded
because its depiction of Williams performing physical activities was
probative as to the issues of his pain and suffering and loss of earning
capacity.23 Further, the video was not automatically unduly
cumulative because a visual representation allows a jury to see signs of
discomfort in an injured party that testimony alone cannot
demonstrate.24
The court also found that the admission of the video did not
constitute unfair prejudice because viewing the video would not
encourage the jury to decide on an improper basis. Finally, the court
found that the video was not misleading because (a) the investigator
recorded Williams for two consecutive days for 30-minute periods, (b)
Williams did not allege that Diamond Offshore omitted any video footage,
and (c) Williams did not allege that Diamond Offshore altered any video
footage.25
In finding that the district court’s exclusion of the video
constituted a harmful error, the court reasoned that if testimony from
the plaintiff and his witnesses about his physical activities was
important, then providing the jury an opportunity to actually witness
some of those activities was just as important.26 Further,
the video could have supported the FCE’s conclusions, as well as
undercut Williams’ overall credibility as to the liability of the
defendant.27 Thus, the court overturned the jury award and
remanded the case for a new trial, in which the video must be
admitted.28
Analysis and
Recommendations
In personal injury lawsuits, both defense counsel and plaintiffs’
counsel should take several steps to bolster their respective sides.
Defense counsel should first attempt to obtain a sufficient amount of
footage each day on consecutive days. Doing so will help defeat
plaintiffs’ counsel’s inevitable arguments that the video is misleading
or merely a “snapshot” of the plaintiffs’ post-injury life. Second,
defense counsel should instruct their investigators to only film the
purportedly injured plaintiff while performing tasks he or she claims an
inability to perform so as to avoid plaintiffs’ counsel’s argument that
an omission from the video renders such video misleading and
inadmissible. Thus, defense counsel should not retain any investigative
service that involves a remote-controlled camera that films for an
extended period of time, e.g., a camouflaged unmanned camera set up
outside an injured plaintiffs’ residence.
Third, defense counsel should submit surveillance video as evidence
well in advance of trial to give the district judge sufficient time to
view, but not so far in advance as to elicit plaintiffs’ counsel’s
argument that such video is outdated. Finally, defense counsel should
ensure that all surveillance video has clear date and time stamps on the
video itself.
On the other hand, plaintiffs’ counsel should not completely abandon
the “snapshot” argument. In general, plaintiffs’ counsel should always
request that defense counsel produce all video surveillance taken with
the intent to videotape the plaintiff, regardless of whether or not the
plaintiff actually appears on the video. Doing so will bolster
plaintiffs’ counsel’s unfair prejudice argument to the court,
particularly when defense counsel uses unmanned cameras that capture
extensive periods of video. Further, if the surveillance video does
capture the plaintiff performing an activity that he or she has alleged
is difficult to perform, then plaintiffs’ counsel should emphasize to
the court that video not taken on consecutive days is unfairly
prejudicial because it does not show the harmful effect that the
physical activity may have had on the plaintiff on subsequent days.
Conclusion
Diamond Offshore ratifies the strategy of obtaining
surveillance video of a personal injury plaintiff. While the decision
does not ensure that surveillance video will be admissible, a trial
judge is now essentially required to review the film before ruling on
its admissibility. Finally, plaintiffs’ counsel must now be prepared in
more cases to controvert the substance of surveillance video in front of
a jury rather than arguing to exclude it in front of a judge.
TBJ
GARRETH A. DEVOE
is a commercial litigation and insurance defense associate in the
Houston office of Galloway, Johnson, Tompkins, Burr & Smith. He
assists in representing oilfield service providers, pipeline
transportation, energy storage companies, and regional oil and gas
exploration firms, as well as their underwriters and other insurance
companies. DeVoe obtained his B.A., M.B.A., and J.D. from Tulane
University and is a member of the 2017-2018 Leadership Academy of the
Houston Young Lawyers Association and the Houston Symphony Young
Associates Council.
JEFFREY S. VALLIERE
serves as
special counsel to the Dallas office of Galloway, Johnson, Tompkins,
Burr & Smith. He represents business interests in regulatory
matters, civil litigation, business transactions, and fraud
investigations. Prior to joining the firm, he served as a partner in
Parker Straus in Fort Worth and as the lead attorney for transportation
regulation with the Louisiana Public Service Commission. Valliere
graduated from Ohio State University with a B.A. in political science
and received his J.D. from the Paul M. Hebert Law Center at Louisiana
State University.