Dating back to our Bone Screw days we have mostly pleasant memories of using surveillance to catch plaintiffs making phony claims. For a variety of reasons, a large percentage of the Bone Screw plaintiffs were workers’ compensation claimants. A bigger collection of malingerers, Munchausens, and phony fibromyalgias we’ve never encountered, before or since. This motley crew, particularly in those cases litigated outside the MDL, or after remand, was particularly amenable to surveillance as a means of exposing their overblown, or often just plain invented, injury claims.

One guy who supposedly couldn’t lift more than ten pounds after his back injury, we got on tape picking up the back end of his motorcycle to put it on a jack. Another guy who claimed he could hardly walk, we caught riding a bicycle more than a mile on a Jersey Shore boardwalk. And so on and so forth. Sometimes their counsel were in cahoots, but most of the time their counsel (at least counsel prosecuting the Bone Screw claim) persuasively claimed to have no idea of their clients’ mendacity. They just didn’t care to find out. We found out. Needless to say, our surveillance made those cases go away quickly.

That’s why we were gratified to read the Texas Supreme Court’s defense of surveillance in Diamond Offshore Services Ltd. v. Williams, ___ S.W.3d ___, 2018 WL 1122368 (Tex. March 2, 2018) (“DOS”). DOS was – guess what – a suit over a workplace injury. The plaintiff’s medical information “w[as] consistent with patients who are exaggerating their symptoms” and his complaints were “not consistent with what the client was able to do during” testing. Id. at *2. That led to surveillance. “[T]he 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.” Id. at *1. According to the defendant, the tapes were dynamite stuff (see, id. at *2 (describing tapes)), but the trial judge, for whatever reason, refused to even look at them, let alone admit them into evidence.

The Texas Supreme Court recognized the probative value of surveillance that successfully catches plaintiffs in acts inconsistent with their injury claims:

[I]mages 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.

DOS, 2018 WL 1122368, at *1 (footnotes omitted).

First, we want to commend the defendant and its counsel in DOS for selectively using surveillance. Quite apart from its cost, surveillance is a sharp, and double-edged sword. It should only be used in cases like this one, where something in the plaintiff’s medical (or other) records provided a strong basis to believe that the plaintiff is exaggerating his/her injuries. A smart plaintiff’s lawyer will seek discovery of surveillance material (most courts only require production after the plaintiff has been deposed), and if that discovery is allowed, will try to spin unsuccessful surveillance as confirmation of the plaintiff’s injury claims.

Now, back to DOS. When surveillance videotapes are offered as evidence, the court has to at least look at them before deciding their admissibility. Where, as in DOS, the trial court did not view the tapes, “the court could not have properly exercised its discretion” and “[w]e afford no deference.” Id. at *4.

Here, the trial court excluded the surveillance video despite never having viewed it. Under these facts, that amounted to an abuse of discretion.

Id. “[I]t is difficult for a trial judge to weigh the probative value of a video against the potentially unfair prejudice without first reviewing it.” Id. (citation and quotation marks omitted). “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.” Id. at *5. “Exceptions should be few and far between.” Id.

Not only was the procedure an abuse of discretion, so was the exclusion itself. “[A]ny countervailing concerns do not substantially outweigh the video’s probative value” under Rule 403. Significantly, the court equated defense surveillance video with other types of video, such as plaintiff-side “day-in-the-life” films:

[I]t 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.

DOS, 2018 WL 1122368, at *6. We know from personal experience that day-in-the-life videos are far more staged and edited than surveillance – since the plaintiff is intentionally performing – so any objection based on prejudicial editing should apply at least as strongly to plaintiff-offered video. A “day-in-the-life” video depicting painful physical therapy is simply not representative where the plaintiff in fact spends most of the day parked in front of the TV in an opioid-induced haze.

Conversely, a surveillance video “can also undermine a plaintiff’s credibility if it suggests exaggeration or flat-out dishonesty regarding pain or abilities.” Id. (footnote omitted).

The video, which depicted [plaintiff] doing physical activities he enjoys and which could have potentially been the basis for employment, on two consecutive days, is obviously probative. . . . Moreover, [defendant] explicitly attacked [plaintiff’s] credibility, both as to the circumstances of his injury and whether he overstated the extent of his limitations and pain. Seeing [plaintiff] on the video could have helped the jury evaluate his truthfulness.

Id. Nor could plaintiff’s concession that he “could” do the activities in the video render the evidence “cumulative.” That ignores the power of the visual medium:

Videos, however, are qualitatively different than other types of evidence. A video recording allows a more panoramic representation of the evidence than a document, testimony, or even a photograph. The mere fact that [plaintiff] conceded he could [do what he was taped doing] does not automatically render a visual representation of him doing so cumulative.

Id. (footnotes omitted).

Nor is a surveillance video that damages the credibility of the plaintiff as a witness “unfairly prejudicial.” “Mere damage to an opponent’s case does not constitute unfair prejudice.” Id. at *7 (footnote omitted). Showing that the plaintiff is not telling the truth is certainly “prejudicial,” but in no way is it “unfair.”

The video does not encourage the jury to decide on any improper basis, but rather on the basis that [plaintiff’s] condition is not as severe as he claims. That is not unfair. . . . Parties select what to record, or what part of a recording to show, to best help their case. That is inherent in our adversarial system. A video is not misleading just because it does not support the opponent’s view of the case.

DOS, 2018 WL 1122368, at *7 (footnote omitted). Bias can be a problem, but bias is more of a problem in “day-in-the-life” films, where “the plaintiff is aware of being filmed, which may cause self-serving behavior, whether consciously or not.” Id. at *8 (footnote omitted). In DOS there was no evidence of any “improper filming,” and the private investigator “was available for deposition and at trial.” Id.

Thus, under the probative/prejudice balance of Rule 403, “[t]he video’s probative value is significant, and concerns about cumulativeness, unfair prejudice, and misleading the jury do not substantially outweigh this value.” Id. Abuse of discretion on the merits, as well as the procedures.

The erroneous exclusion of the surveillance videotapes was also reversible error. The court gave a lot of reasons in DOS for this conclusion. See Id. at *8-9. But for us it boils down to a jury being able to see the plaintiff for themselves “unaware of being recorded and thus with no incentive to exaggerate, [which] is qualitatively different than hearing his and his witnesses’ descriptions and would likely have had a powerful impact.” Id. at *9. Showing is almost always more persuasive than telling.

One of the (many) reasons that we detest aggregated litigation is that the defendant is almost always prevented by the sheer weight of numbers from giving each plaintiff’s case the work-up it deserves. In a single plaintiff case, such as DOS, that work-up can well include surveillance. Surveillance is a great tool for combatting malingerers trying to get something for nothing. Every time such people get money from MDL settlements, our system of justice has failed. Such plaintiffs getting money under false pretenses only adds to the costs of prescription medical products.