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Judge must review video before excluding its use at trial.

Written by Mr. Roger Davie on Tuesday, 13 Mar 2018.

Texas Supreme Court provides guidance on video use in workers’ comp case

When can video footage serve as evidence in a personal-injury suit that arises from a workplace accident? That is a question that was recently discussed in a case that made it to the highest court in Texas — the Texas Supreme Court.

The case involves a senior mechanic that suffered a back injury whileworking aboard an offshore drilling rig. The worker suffered a back injury whilelifting heavy equipment. The injuries were severe. He required two back surgeries and continues to experience pain and “related neurological issues.” His physician has stated that the injuries have left the worker “totally disabled.”

The employer hired an investigator to verify the worker was not exaggerating his injuries. The investigator was able to take video that allegedly showed the worker bending over and operating heavy machinery. The employer attempted to have this footage included as evidence. The trial court did not watch the video, but decided to exclude it as evidence. Thecase progressed and the jury held in favor of the worker, awarding the injured worker $10 million for lost future earning as well as pain and suffering.

The employer appealed, arguing that the video should have been included as evidence. The Texas Supreme Court agreed to hear the case, focusing on the issue of whether or not the trial court erred by excluding the video as evidence in the case without first viewing it.

The Texas Supreme Court pointed to the Texas Rules of Evidence as authority for the general admissibility of evidence that can make a fact of consequence more or less probable. In this case, the fact of consequence was the injury suffered by the worker. The employer argued that the video addressed this fact, potentially establishing that the worker was not as injured as he claimed. However, even evidence that addresses a fact of consequence can be excluded if the “probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” In the trial court, the worker argued the video showed him completing actions he already admitted he was able to complete. However, the video failed to show his home life and the “copious amounts of pain medication” that the worker required to manage his pain.As such, the worker stated the video should be excluded since it provided needlessly cumulative evidence and may mislead the jury since it only showed a brief portion of the worker’s life.

Ultimately, the high court found the trial court should not have taken the word of the worker. Instead, the court should have viewed the video before deciding if the video should or should not be excluded.

The Texas Supreme Court has called for this case to return to the trial court, for the trial court to review the video footage and then make a determination on whether or not the footage should be allowed as evidence. This does not mean the worker has lost his case. However, the injured worker will need to continue his case to win.

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