Barred Video Leads Supreme Court to Toss $10m Award in Jones Act Case

A trial judge’s refusal to admit surveillance video of an injured worker in his Jones Act case has resulted in a reversal of the judgment and an order for new trial. The case is Diamond Offshore Services, Ltd. v. Williams (No. 16-0434).

The case involves a personal injury suit arising from a workplace accident on an offshore drilling rig. Willie Williams was working as a senior mechanic for the Diamond companies when he injured his back while working on the rig. He underwent 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 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,” the court wrote in its opinion.

The case was tried to a jury, which ultimately awarded Williams more than $10 million in damages. Diamond argued that the trial court erred in refusing to admit the video surveillance, which 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.’”

After much discussion about the video—but without watching it—the trial court excluded the evidence over Diamond’s multiple efforts to secure its admission into evidence. Writing for the court, Justice Eva Guzman first observed:

We live in a highly visual age. Image-capture technology is not only easily accessible, it is virtually omnipresent. Video recordings from security and traffic cameras, dash-cams, television footage, surveillance, and self-recordings have long been a quotidian part of modern life, and with the advent of smartphone camera technology, seemingly everyone has a video recorder at the ready. Unsurprisingly, images captured for myriad purposes, and in various forms, regularly work their way into the courtroom. For decades, trial courts have encountered evidentiary issues related to video evidence and, as video technology continues to become more portable and affordable, will increasingly do so.

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. A video can be the single most compelling piece of evidence in a case, captivating the jury’s attention like no other evidence could. Video can often convey what an oral description cannot—demeanor, personality, expressions, and motion, to name a few. Because video evidence can be highly persuasive, when objected to, the trial court must carefully evaluate the factors in Texas Rule of Evidence 403, which requires balancing the probative value of the evidence against concerns such as unfair prejudice, the potential to mislead the jury, and needless presentation of cumulative evidence. Rule 403 favors admission by requiring these countervailing concerns to substantially outweigh the evidence’s probative value before it may be excluded.

The opinion noted that the trial judge first considered the video’s admissibility at a motion in limine hearing and, after stating she had not watched the video, ruled Diamond could hold the video in its “reserve bank for impeachment, and that’s it” and if Williams “opens the door, then we’ll take a look at it.” She did not otherwise state a basis for her ruling. At trial, Diamond offered the video on three separate occasions, both for impeachment and as substantive evidence regarding Williams’s pain and physical abilities. Each time, the trial judge stood by her prior ruling after only a brief exchange with counsel.

The court reasoned that this was error, writing:

We have viewed the surveillance video of Williams and conclude it is probative of his physical abilities and associated pain. Williams sought damages for total loss of earning capacity, claiming he would never again be able to hold any type of job. He also asked for compensation for pain and suffering and loss of enjoyment of life because he can no longer do activities he likes for long periods and not without pain during and after. The video, which depicted Williams doing physical activities he enjoys and which could have potentially been the basis for employment, on two consecutive days, is obviously probative as to all these issues. Moreover, Diamond explicitly attacked Williams’s credibility, both as to the circumstances of his injury and whether he overstated the extent of his limitations and pain. Seeing Williams on the video could have helped the jury evaluate his truthfulness.

The case has been remanded for a new trial.