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Diamond Offshore Services Limited v. Williams

Supreme Court of Texas

March 2, 2018

Diamond Offshore Services Limited and Diamond Offshore Services Company, Petitioners
Willie David Williams, Respondent

          Argued December 7, 2017

         On Petition for Review from the Court of Appeals for the First District of Texas


         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, [1] 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.[2] Video can often convey what an oral description cannot-demeanor, personality, expressions, and motion, to name a few.[3] 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.[4]

         In this personal-injury suit arising from a workplace accident, the employer, believing the employee to be exaggerating the extent of his pain and physical limitations, hired an investigator who conducted surveillance and recorded the employee engaging in physical activities over the course of two days. After much discussion about the video-but without watching it-the trial court excluded the evidence. The employee ultimately prevailed, with the jury assessing nearly $10 million in damages, including almost $4 million for pain and suffering.

         The primary issue we address today is whether the trial court erred in excluding the surveillance video without first viewing it. We hold that, except in rare circumstances not present here, when the admissibility of a video is at issue, the proper exercise of discretion requires the trial court to actually view video evidence before ruling on its admissibility. While trial courts have discretion in making evidentiary rulings, we cannot defer to discretion that was not actually exercised. The video here should not have been excluded, and its exclusion was harmful because it went to the heart of the defendant's case. We therefore reverse and remand for a new trial.

         I. Background

         Diamond Offshore Services Limited and Diamond Offshore Services Company (collectively Diamond) employed Willie David Williams as a senior mechanic on its offshore drilling rig. In January 2008, while working alone on a large, heavy piece of equipment, Williams hurt his back. He never returned to work. Despite two back surgeries in the thirteen months following his injury, Williams continues to suffer back pain and related neurological issues with his foot and toes. Due to these issues and associated physical restrictions, Williams's treating physician declared him "totally disabled at this point."

         In May 2011, Williams sued Diamond under the Jones Act, alleging Diamond was negligent and the drilling rig was an unseaworthy vessel. Shortly after filing suit, Williams underwent a functional capacity evaluation (FCE) to assess his physical abilities. The FCE detailed various physical restrictions and determined Williams could perform medium-level physical labor within those restrictions. As part of the FCE, Williams completed a pain questionnaire, and his responses were "consistent" with patients who are "exaggerating their symptoms." The FCE thus concluded: "This score is not consistent with what the client was able to do during the FCE. The client's perception of [his] abilities is less than what he is capable of doing."

         Based on this information, Diamond pursued a defensive theory that Williams was overstating his pain and downplaying his ability to return to some form of work. To support that theory, Diamond had Williams surveilled and recorded. 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.

         On one day, the investigator videotaped Williams during a twenty-seven minute time period, which included a break in recording of less than one minute. During that time, Williams operated a mini-excavator to clear away a run-down mobile home. He also bent over thirty-four times in a consecutive four-minute span to pick up smaller debris from the ground and throw it into a trailer bed. The next day, the investigator filmed Williams working on his lifted truck over a thirty-two-minute period, during which the investigator stopped and started recording several times, generating about twenty-eight minutes of total video footage. Williams was perched on a stool for much of the time, but periodically stood up to gather tools and materials. At one point, Williams used his body to maneuver a large "monster wheel" onto his truck.

         At trial nine months later, Williams testified he still had "constant pain" in his back and was unable to hold any sort of job because of his pain, physical restrictions, and daily pain medication. His treating physician and other experts supported this assessment, disagreeing with the FCE's work-capacity conclusions and discounting it as outdated because Williams's condition had worsened in the intervening two years. Williams explained he would attempt to do activities he enjoyed, such as working on his vehicle and using the mini-excavator, but he could not engage in those activities for as long as he could before his injuries, and he hurts when he tries, both during and after. Several of Williams's friends and family members described their observations of the mental and physical toll of his injury and pain and expressed concern that, based on their perception of his deterioration rate, Williams would be immobile or wheelchair-bound within a few years.

         Diamond offered the surveillance video at trial to counter this evidence and corroborate the FCE. 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 video was not "a fair representation of his disabilities or abilities" because "[i]t shows nothing of his life inside his home, the copious amounts of pain medication he must take to be able to perform these activities, or the price he has paid through the pain suffered in the subsequent hours and days" and thus should be excluded under Rule 403 as unfairly prejudicial and misleading.

         The trial judge first considered 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.[5] Each time, the trial judge stood by her prior ruling after only a brief exchange with counsel.

         The jury returned a verdict for Williams, finding nearly $10 million in lost earning capacity, medical expenses, pain and suffering, disfigurement, and physical impairment. In a split decision, the court of appeals affirmed, determining the trial court had not abused its discretion in excluding the video.[6] The dissent would have reversed and remanded for a new trial, concluding that excluding the surveillance footage, which "goes to the heart of each of Williams'[s] damages questions, " was harmful error.[7]

         II. Discussion

         A. The Trial Court Abused its Discretion in Ruling Without First Watching the Video

         The Texas Rules of Evidence provide for the general admissibility of all evidence having any tendency to make a fact of consequence more or less probable.[8] Even if relevant, however, evidence may be excluded "if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence."[9]

         Trial courts play a vital role in evaluating evidence. Being present in the courtroom and having the most familiarity with the case, the trial court is best positioned to assess whether evidence is unfair or potentially misleading.[10] When a Rule 403 objection is at issue, the trial court must balance probative value against the relevant countervailing factors to determine admissibility.[11] The trial court has extensive discretion in evidentiary rulings, and we will uphold decisions within the zone of reasonable disagreement.[12]

         The trial court's discretion, however, is not without limits. We afford no deference when the record affirmatively establishes the court could not have properly exercised its discretion. Here, the trial court excluded the surveillance video despite never having viewed it. Under these facts, that amounted to an abuse of discretion.

         Williams asserts the judge's limine-hearing statement that she had not watched the video does not preclude a determination that she did so later and, consistent with the presumption of regularity of proceedings, [13] we should presume she watched it at some point before ruling at trial. We reject this argument. The presumption of regularity applies only when the record is silent or ambiguous and, even then, only to reasonable presumptions.[14] The record here is neither silent nor ambiguous. During the limine conference, the judge said she did not watch the video and would revisit the matter only if Williams opened the door to impeachment; at trial, she repeatedly ruled that he had not. Under these circumstances, we cannot reasonably presume the trial court viewed the surveillance video on her own, without informing the parties, when the condition she set for viewing it never occurred.

         Our sister criminal court has emphasized the importance of viewing videos before ruling on admissibility, noting it is "difficult for a trial judge to weigh the probative value [of a video] against the potentially unfair prejudice . . . without first reviewing it."[15] Appellate courts around the country have similarly admonished trial courts that the proper exercise of discretion requires viewing visual evidence, particularly when balancing under Rule 403.[16]

         We addressed an analogous situation involving disclosure of trade-secret information in In re M-I L.L.C.[17] To avoid disclosing sensitive information to the defendant's corporate representative, the plaintiff sought to conduct a portion of a temporary-injunction hearing outside his presence.[18] Without learning anything about the information to be protected, the trial court denied the plaintiff's request, apparently believing the defendant had an absolute due-process right to have its representative present.[19] The plaintiff sought a writ of mandamus from the court of appeals and submitted an affidavit in camera discussing the trade-secret information. [20] After the appeals court denied the mandamus petition, the trial court ordered the plaintiff to produce the affidavit to the defendant without ever examining it in camera.[21] We subsequently granted mandamus relief, concluding the trial court abused its discretion in ordering the affidavit produced without first reviewing its contents and in failing to conduct the required due-process balancing before refusing to exclude the defendant's representative.[22] "Without knowing what [the] alleged trade secrets were, the trial court simply could not have conducted the required balancing."[23]

         We hold 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. We recognize circumstances might arise where viewing is unnecessary or extremely onerous. For example, "[t]here may be cases where the probative value of the evidence is so minimal that it will be obvious to the court that the potential prejudice . . . substantially outweighs any probative value the evidence might have."[24]Additionally, video depositions need not be viewed before ruling on objections unless the objection is specific to a visual aspect of the deposition. Exigencies of trial, moreover, could make it difficult to find time to view a late-offered video, especially if the video is lengthy. The parties could potentially address such timing issues by submitting representative excerpts for the trial court's review. In any event, trial courts should "undertake their best efforts in attempting to view the subject visual recording prior to ruling on its admissibility."[25] Exceptions should be few and far between.

         This case does not justify an exception. 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. Though everyone agreed it was Williams who appeared on the video performing certain physical activities, [26] each side offered its own spin. Williams argued he "tried" to perform these activities for limited periods and experienced pain, whereas Diamond described Williams as moving with "evident ease and fluidity of motion" while operating power tools and machinery, bending, reaching, and throwing. The trial judge should have assessed the video for herself rather than relying on counsel's descriptions and arguments.[27] Further, only by viewing the video could the trial court determine whether the jury might misinterpret some of the segments as being continuous despite the prominent time stamp, or whether seeing Williams bend and gather debris more than thirty times in the span of a few minutes had the same impact as testimony that he could pick up small things on occasion. The video was relatively short-about an hour-and could possibly have been edited by agreement. Nothing in the record reveals any exigency that would have made viewing the video difficult. We hold the trial court here could not properly exercise its discretion without watching the video.

         B. The Video Should Not Have Been Excluded Under Rule 403

         Because the trial court did not properly exercise its discretion in excluding the surveillance video without viewing it, we conduct our own independent Rule 403 analysis.[28] Considering the relevant factors, we conclude any countervailing concerns do not substantially outweigh the video's probative value and, consequently, the video cannot be excluded under Rule 403.[29]

         Before we begin our analysis, it is important to note that in personal-injury cases, video footage of a plaintiff can originate not only, as here, from defense-initiated surveillance but also from plaintiff-prepared day-in-the-life videos and third-party sources like security cameras and eyewitnesses. Many of the issues we discuss today can arise with any personal-injury plaintiff video, though each form also has its own particular concerns. No matter the type of video, each case must be evaluated individually.

         Courts have found video depictions of a personal-injury plaintiff engaging in activities like bathing, dressing, walking, participating in leisure activities, and working to be probative as to critical allegations such as malingering, condition before and after an injury, and pain and suffering.[30] "Such evidence is often desired because films illustrate, better than words, the impact the injury [had] on the plaintiff's life."[31] A video can also ...

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