© 2018 The Texas Lawbook.
By Timothy E. Hudson and Catherine C. Rowsey of Thompson & Knight
(April 4) – The Texas Supreme Court recently clarified the application of Texas Rule of Evidence 403 to video evidence in a personal injury case. In doing so, the Court underscored the salience of video evidence in depicting (and refuting) subjective issues, like pain and suffering and witness credibility, at trial. The Court set forth a bright line rule for trial courts confronted with the admissibility of a video during trial – the proper exercise of discretion requires the trial court to view the video evidence before ruling on its admissibility.
In Diamond Offshore Services Limited et al. v. Williams, Williams, an offshore rig mechanic, sued Diamond, his employer, under the Jones Act after injuring his back while working with a large piece of equipment on the rig. His treating physician declared him totally disabled, and Williams did not return to work.
At trial, Williams testified that he still suffers from constant pain and is unable to work or perform the activities he used to enjoy. To counter this testimony, Diamond offered surveillance video that its private investigator had taken of Williams engaging in various physical activities after the injury.
Williams objected to the video on two grounds: (1) the video was improper impeachment evidence because Williams admitted he could engage in the activities shown in the video, just not for an extended time period and not without pain, and (2) the video was inadmissible under Rule 403 as unfairly prejudicial, cumulative and misleading because it did not show Williams’s home life or the amount of medication Williams took to be able to perform the activities. Diamond offered the video several times at trial, but the trial court, which never watched the video, sustained Williams’s objection, and the video was not admitted into evidence.
The jury ultimately rendered a $10 million verdict in favor of Williams, which included almost $4 million for pain and suffering. Diamond appealed the verdict, and the Houston Court of Appeals affirmed in a split decision, determining that the trial court had not abused its discretion in excluding the video.
Diamond appealed to the Texas Supreme Court, arguing the trial court erred in excluding the surveillance video without first viewing it. The Court agreed, holding that when determining the admissibility of video evidence, the proper exercise of discretion requires the trial court to view it before ruling on its admissibility. The Court further stated that although“trial courts have discretion in making evidentiary rulings, we cannot defer to discretion that was not actually exercised.”
Here, because the trial court never viewed the video being offered into evidence, the court could not have exercised discretion in determining its admissibility. The Court’s holding states a bright line for video evidence: “as a general rule, a trial court should view video evidence before ruling on admissibility when the contents of the video are at issue.”
The general rule does not apply to video taken during depositions, unless the objection is specific to a visual aspect of the deposition, and parties should submit representative excerpts of video evidence that is particularly lengthy or late-offered.
Conducting its own Rule 403 analysis, the Texas Supreme Court held that the video was admissible because its probative value was not substantially outweighed by concerns such as unfair prejudice, the potential to mislead the jury and the needless presentation of cumulative evidence. Video evidence of a personal injury plaintiff is probative as to critical allegations like pain and suffering and can also undermine a plaintiff’s credibility.
The Court rejected Williams’s argument that the video was cumulative of his testimony that he could perform all the activities depicted, reasoning that videos “are qualitatively different than other types of evidence” and give “a more panoramic representation” of the evidence than a document, testimony or even a photograph.
The Court also rejected Williams’s complaint that the video misled the jury because it was an incomplete depiction of Williams’s everyday life. Any omissions from or inaccuracies in the video go to the weight of the evidence, not its admissibility, and Williams was free to argue to the jury that the video only presented a limited snapshot of his daily life.
The Court further held that the trial court’s exclusion of the video was harmful because it was crucial to Diamond’s defense of Williams’s pain and suffering claim and his credibility, both key issues at trial. The Court reversed and remanded for a new trial based on the failure of the trial court to properly exercise its discretion by viewing the surveillance video before ruling on its admissibility.
This case is significant as it provides important guidance to practitioners on both sides of the docket with respect to the admission of video evidence. As smartphones with sophisticated video capabilities become more commonplace, we can expect to see more video evidence in the courtroom as well as a continuing trend of courts grappling with how to apply evidentiary rules to this new technology.
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