“If, as it is often said, a picture is worth a thousand words, then a video is worth exponentially more. Images have tremendous power to persuade, both in showing the truth and distorting it.” Diamond Offshore Serv. Ltd. v. Williams, No. 16-0434, 2018 Tex. LEXIS 186, (Tex. Mar. 2, 2018).
For these reasons, litigants routinely seek discovery of video evidence. Litigants sometimes also secure their own video evidence through the use of surveillance. The admission of video evidence at trial can be hotly contested. For personal injury cases where the extent or existence of injuries is disputed, video evidence can be relevant to liability, damages and credibility.
In Diamond Offshore Serv. Ltd. v. Williams, an employee injured his back working on an oil rig. He allegedly became completely disabled and sued his employer under the Jones Act. The employer, believing the employee was exaggerating the extent of his pain and physical limitations, hired an investigator to obtain surveillance video of the employee performing physical activities. The trial court refused to view the video and refused to allow it to be shown to the jury because the employee did not deny that he could engage in the activities it showed, but instead claimed he could only do so for a short time and with pain. The jury found for the employee and awarded him $10 million, including almost $4 million for pain and suffering.
The Texas Supreme Court concluded that the trial court abused its discretion in excluding the video without viewing it. The Court held that, as a general rule, a trial court is required to view video evidence before ruling on its admissibility. Reviewing the video enables a trial court to determine whether the video is relevant and, if so, whether its probative value is outweighed by its prejudicial effect under Rule 403.
After reviewing the video, the Court determined that the video was “probative of [the employee’s] physical abilities and associated pain” and should not have been excluded under Rule 403. Though the employee admitted that he could perform all of the physical activities depicted in the video, the Court explained that video is qualitatively different than oral testimony. As a result, it was not cumulative.
Nor was the video unfairly prejudicial. The Court explained that “unfair prejudice” under Rule 403 means “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Here, the video was offered to controvert the extent and severity of the plaintiff’s claimed injuries. “[T]hat is not unfair,” said the Court.
As a result, the Court concluded that “video’s probative value is significant, and concerns about cumulativeness, unfair prejudice, and misleading the jury do not substantially outweigh this value.” Because the employee’s credibility was a central defensive issue on both liability and damages, the Court concluded that the exclusion of the video probably caused the rendition of an improper judgment and remanded for a new trial.
