Barred Video Leads Texas High Court to Toss Finding in Workers’ Comp Suit

By | March 19, 2018

Disagreeing with the decision of a lower court to exclude, without having watched it, a company’s surveillance video of an injured employee in a workers’ compensation case, the Texas Supreme Court reversed the ruling favoring the injured worker and remanded the case for a new trial.

Diamond Offshore Services Limited and Diamond Offshore Services Company V. Willie David Williams involves a personal injury suit arising from a workplace accident on an offshore drilling rig.

Willie David Williams was working as a senior mechanic for the Diamond companies when he injured his back while working on the rig. He had two back surgeries and continues to “suffer back pain and related neurological issues,” the opinion states. His treating physician declared him “totally disabled” and Williams has never returned to work.

Williams sued Diamond under the Jones Act in 2011 alleging that “Diamond was negligent and the drilling rig was an unseaworthy vessel,” the Supreme Court’s March 2 opinion states.

A functional capacity evaluation (FCE) Williams underwent to assess his physical abilities after he filed suit suggested Williams was exaggerating his symptoms and was physically able to do more than he thought he could.

Based on the FCE, “Diamond pursued a defensive theory Williams was overstating his pain and downplaying his ability to return to some form of work,” Justice Eva Guzman wrote in the Court’s published opinion.

The company subsequently had Williams surveilled and visually recorded his actions to support its theory.

“In December 2012–seventeen months after the FCE and nearly four years after Williams’s second surgery–an investigator recorded him for about an hour over two consecutive days while he was engaged in limited physical activities. Prominent date-and-time stamps appear on all recorded segments,” the opinion states.

The recordings showed Williams performing various physical activities for short periods of time such as operating a mini-excavator, bending over numerous times to pick up debris and discard it, and working on a truck while seated on a stool.

Diamond offered the surveillance video at trial and Williams objected, “contending impeachment would be improper because Williams admitted he could engage in the activities portrayed, just not for an extended time period and not without pain. He also argued the was not ‘a fair representation of his disabilities or abilities.'”

Williams asserted that the video was prejudicial and misleading and that it did not show the “copious amounts of pain medication he must take to be able to perform these activities,” and the amount of pain he suffered following physical activities.

Rule of Evidence

In the written opinion, Justice Guzman explained that while video imagery can be useful and highly persuasive when submitted as evidence at trial, it sometimes can be misleading.

“Because video evidence can be highly persuasive, when objected to, the trial court must carefully evaluate the factors in Texas Rule of Evidence 403,” Guzman wrote. Under rule 403, before evidence can be excluded “countervailing concerns” must be found to “substantially outweigh the evidence’s probative value.”

In this case, without watching the video, the trial judge initially declined to admit it into evidence but allowed Diamond to hold it in reserve in the event that circumstances at trial provided an opening for its admittance. During the trial, however, the judge declined three times Diamond’s request to submit the video as evidence.

The trial jury found in favor of Williams, awarding almost “$10 million in lost earning capacity, medical expenses, pain and suffering, disfigurement, and physical impairment.”

The court of appeals affirmed but the decision was not unanimous. The dissent asserted that the trial court was wrong to bar the video without having watched it. The Texas Supreme Court agreed with the appellate dissent.

Citing Rule 403, Guzman said the video should not have been excluded. Guzman wrote: “Proper exercise of discretion here required the trial judge to watch the video. Diamond sought to give the jury a visual representation of Williams performing activities he said caused him pain. The probative value of the evidence derives directly from Williams’s appearance as he performed the surveilled tasks. Fully assessing the probative value of this visual was impossible based solely on the parties’ descriptions.”

Instead of watching the video, the trial judge relied on “counsel’s descriptions and arguments.” The “trial judge should have assessed the video for herself” to determine whether the jury might have been misled by some of the segments, the Supreme Court found.

The Court concluded that the surveillance “video should not have been excluded under Rule 403,” and the trial court “abused its discretion” and harmed the case by doing so.

The case was reversed and remanded for a new trial.

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Insurance Journal West March 19, 2018
March 19, 2018
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