By Tarush R. Anand, Shareholder, Brown Sims – Houston
On March 2, 2018, the Texas Supreme Court issued an important opinion regarding the admissibility of surveillance video in a personal-injury case.
After sustaining a workplace back-injury, the plaintiff filed suit against his employer. The plaintiff claimed, through his doctors, that he was totally disabled of the accident. The defendant then hired an investigator who obtained undercover surveillance footage of the plaintiff working and engaging in various physical activities. The video showed the plaintiff, among other things, operating a mini-excavator and using his body to maneuver a large “monster wheel” onto his truck.
Once the plaintiff become aware of the video footage, he offered an explanation; he admitted that he could engage in those activities, but not for very long and not without pain.
When the defendant tried using the video at trial, the plaintiff objected to its admissibility. He argued that the video was unfairly prejudicial and misleading under Rule 403 because it was incomplete—it did not show how the plaintiff appeared and felt for the rest of the day. The plaintiff further argued that, because he admitted he could do all the activities depicted, the video was cumulative.
The trial court accepted the plaintiff’s arguments, sustained the objections, and excluded the video. The defendant offered the video again at several points during the trial, but the trial court stuck with its ruling. The jury then returned a verdict of almost $10 million in favor of the plaintiff.
The defendant appealed the exclusion of the surveillance video. A divided First Court of Appeals affirmed the decision. See Diamond Offshore Servs. Ltd. v. Williams, 510 S.W.3d 57 (Tex. App.—Houston [1st Dist.] 2015). The defendant appealed the case further to the Texas Supreme Court, which agreed to hear the case. After hearing argument, the Texas Supreme Court held that the exclusion of the videotape was harmful error, so it reversed the judgment and remanded the case for a new trial.
The Texas Supreme Court first took issue with the fact that the trial court had excluded the video without reviewing it. The court explained that, “as a general rule, a trial court should view video evidence before ruling on admissibility when the contents of the video are at issue.” Exceptions should be “few and far between.” After faulting the trial court for not reviewing the video, the Texas Supreme Court went on to analyze whether the video could be excluded under Rule 403 of the Texas Rules of Evidence, and ruled that it could not.
The court rejected the plaintiff’s argument that the video was rendered cumulative by the plaintiff admitting that he could do the activities depicted on the video. Videos, the court explained, “are qualitatively different than other types of evidence.” “If, as it is often said, a picture is worth a thousand words, then a video is worth exponentially more.” “Video can often convey what an oral description cannot—demeanor, personality, expressions, and motion, to name a few.” Addressing the plaintiff’s cumulative argument, the court explained: “The mere fact that Williams conceded he could work on his truck or operate his mini-excavator for short time periods does not automatically render a visual representation of him doing so cumulative. Allowing the jury to see what Williams looked like while engaging in these activities—including how vigorously he 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 Williams’s bare testimony could not. Thus, the video was not needlessly cumulative.”
The court also rejected the plaintiff’s argument that the video was misleading because it only shows him engaged in physical activities, but does not show what he did for the rest of those days. The court explained: “Videos of injured plaintiffs will, by their very nature, be incomplete. It is impractical if not impossible to record all of a plaintiff’s post-injury life. Parties select what to record, or what part of a recording to show, to best help their case. That is inherent in our adversarial system. A video is not misleading just because it does not support the opponent’s view of the case. Alleged omissions or inaccuracies typically go to the weight of the evidence, not its admissibility. . . . Moreover, jurors can be expected to understand that a half-hour segment does not purport to represent an entire day. Had the jury seen the video, Williams would have been free to explain what he did the rest of those days and how he felt during and after the activity shown.”
Lastly, the court addressed what evidentiary foundation is necessary to authenticate surveillance footage. The court explained that because the plaintiff admitted that he was the person in the video and that he in fact performed the activities depicted, authenticity was established. “Any argument that the video is inaccurate because it does not depict things like rest periods goes to substance, not authenticity.”
The case is Diamond Offshore Servs. Ltd. v. Williams, No. 16-0434 (Tex. March 2, 2018).