# Diamond Offshore Services Limited and Diamond Offshore Services Company v. Willie David Williams > Texas Court of Appeals, 1st District (Houston) · September 4, 2015 URL: https://www.frixlaw.com/law-library/cases/4068251 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** September 4, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4068251 ## How later opinions describe it (automated extraction) - reversing trial court's decision to exclude post-accident surveillance video and directing trial court, on remand, to evaluate admissibility of video under Rule 403 - holding that successful challenge to evidentiary ruling generally requires complaining party to show judgment turned on excluded evidence - holding that trial court committed reversible error in excluding post-accident videotape of injured plaintiff shoveling snow after plaintiff testified that he took "two or three swipes" of parking area with shovel ## Opinion text ACCEPTED 01-13-01068-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/4/2015 4:09:30 PM CHRISTOPHER PRINE CLERK No. 01-13-01068-CV IN THE COURT OF APPEALS FILED IN 1st COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS AT HOUSTON 9/4/2015 4:09:30 PM CHRISTOPHER A. PRINE Clerk DIAMOND OFFSHORE SERVICES LIMITED AND DIAMOND OFFSHORE SERVICES COMPANY, Appellants, v. WILLIE DAVID WILLIAMS, Appellee. Appeal from the 164th District Court of Harris County, Texas, Trial Court Cause 2011-31922 APPELLANTS’ MOTION FOR EN BANC RECONSIDERATION ADELE HEDGES, BECK REDDEN LLP ATTORNEY AT LAW PLLC David M. Gunn Adele O. Hedges State Bar No. 08621600 State Bar No. 09368500 dgunn@beckredden.com ah@adelehedges.com Constance H. Pfeiffer 2719 Colquitt State Bar No. 24046627 Houston, TX 77098 cpfeiffer@beckredden.com (713) 702-4289 1221 McKinney, Suite 4500 Houston, TX 77010 (713) 951-3700 (713) 951-3720 (Fax) COUNSEL FOR APPELLANTS TABLE OF CONTENTS PAGE TABLE OF CONTENTS ...................................................................................................i INDEX OF AUTHORITIES.............................................................................................. ii ISSUE PRESENTED ON REHEARING............................................................................... 1 EN BANC STANDARD .................................................................................................. 2 SUMMARY OF RELEVANT FACTS ................................................................................. 2 ARGUMENT ................................................................................................................. 8 I. The Admissibility Analysis for Visual Evidence in Civil and Criminal Cases Should be Uniform. .................................................... 8 A. Video surveillance evidence is routinely admitted under Rule 402. ........................................................................... 9 B. Video surveillance evidence is rarely excluded under Rule 403. ................................................................................... 12 C. Rule 403 provided no basis to exclude the video in this case. .................................................................................... 14 PRAYER FOR RELIEF .................................................................................................. 16 CERTIFICATE OF SERVICE .......................................................................................... 17 CERTIFICATE OF COMPLIANCE .................................................................................. 18 APPENDIX Functional Capacity Evaluation (DX-28) ................................................Tab A Jury Charge/Verdict ................................................................................. Tab B Trial Court Judgment ............................................................................... Tab C Court of Appeals Majority Opinion .......................................................Tab D Court of Appeals Dissenting Opinion ..................................................... Tab E INDEX OF AUTHORITIES CASE PAGE(S) Baker v. Canadian National/Illinois Cent. R.R., 536 F.3d 357 (5th Cir. 2008) ........................................................................10, 13 Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231 (Tex. 2007) .............................................................................. 13 Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014)................................................................................... 12 Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993) .............................................................................. 10 Crist v. Goody, 507 P.2d 478 (Colo. App. 1972) ......................................................................... 10 Dunn v. Bank-Tec South, 134 S.W.3d 315 (Tex. App.—Amarillo 2003, no pet.) ........................................................................................................ 9 Flannery v. State, 1999 WL 504183 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) ................................................................................. 15 Gordon v. State, 784 S.W.2d 410 (Tex. Crim. App. 1990) .....................................................12, 15 Graves v. State, 01-07-00212-CR, 2008 WL 5263349 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)................................................................................................... 11 Heiman v. Market Street Ry. Co., 69 P.2d 178 (Cal. Ct. App. 1937) ....................................................................... 10 Hernandez v. State, 01-13-00467-CR, 2014 WL 4113095 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)................................................................................................... 11 ii Home Ins. Co. v. Garcia, 74 S.W.3d 52 (Tex. App.—El Paso 2002, no pet.) ........................................................................................................ 9 Huston v. United Parcel Serv., Inc., 434 S.W.3d 630 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) ................................................................................ 9 James v. Carawan, 995 So.2d 69 (Miss. 2008) ............................................................................10, 13 McDougal v. McCammon, 455 S.E.2d 788 (W.Va. 1995) ............................................................................. 11 Moak v. Illinois Cent. R.R. Co., 631 So.2d 401 (La. 1994) ................................................................................... 11 Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416 (Tex. App.—Eastland 2006, no pet.) ............................................................................................9, 12, 13 Samarkos v. Goddard, 2013 WL 2705964 (Cal. App. 2013) (unpublished) ...................................................................................................... 13 Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997) (en banc)................................................................................................................ 8 Smith v. Diamond Offshore Drilling, Inc., 168 F.R.D. 582 (S.D. Tex. 1996)........................................................................ 11 Sweet v. Pace Membership Warehouse, Inc., 795 A.2d 524 (R.I. 2002) .................................................................................... 10 Texas Capital Sec., Inc. v. Sandefer, 58 S.W.3d 760 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) .............................................................................. 13 Wal-Mart Stores, Inc. v. Hoke, 2001 WL 931658 (Tex. App.—Houston [14th Dist.] 2001, no pet.) ...............................................................................9, 14 iii Williams v. State, 01-14-00395-CR, 2015 WL 4591683 (Tex. App.—Houston [1st Dist.] July 30 2015, no. pet. h.)..................................................................................... 11 Wolford v. JoEllen Smith Psychiatric Hosp., 693 So.2d 1164 (La. 1997) ................................................................................. 11 Zegarelli v. Hughes, 814 N.E.2d 795 (N.Y. 2004) ............................................................................... 11 Zimmerman v. Superior Court In & For Maricopa County, 402 P.2d 212 (Ariz. 1965) (en banc) .................................................................. 10 OTHER AUTHORITIES TEX. R. APP. P. 41.2 ................................................................................................... 2 TEX. R. EVID. 401......................................................................................................................... 9 402..................................................................................................................... 8, 9 403................................................................................................................passim iv ISSUE PRESENTED ON REHEARING This personal injury case involves an ordinary injury that resulted in an extraordinary verdict. Every element of the plaintiff’s claims was hotly disputed, and the jury’s verdict would have probably been different if the defendant had been permitted to use its best evidence. The Panel divided sharply over whether a ruling excluding surveillance video of the plaintiff was harmful error. Given the division among the Panel and the recurring nature of this issue, it warrants the full Court’s attention. Did the Majority create an unjustified schism between how civil and criminal courts determine the admissibility of visual evidence, and did it pave the way for the routine exclusion of surveillance videos in civil cases? EN BANC STANDARD En banc consideration is appropriate when it is “necessary to secure or maintain uniformity of the court’s decisions[.]” TEX. R. APP. P. 41.2. That standard is met here, because the Court’s civil and criminal standards for the admissibility of surveillance video have diverged. Given that the analysis in both types of cases hinges on the same evidentiary rules, there is no reason to have differing standards. SUMMARY OF RELEVANT FACTS The plaintiff in this personal injury case, David Williams, alleges he suffers extreme pain and mental anguish and can never work again. A key dispute is whether Williams’s injury is as debilitating as he claims. The defendants are two Diamond Offshore entities who do not deny that Williams has a herniated and a bulging disc in his back and may be unfit to return to his former job. But they have strong evidence to believe that Williams can work again and that his disabilities are overstated. After a report concluded that Williams is fit for work and exaggerating his pain, Tab A (DX-28), Diamond Offshore hired an investigator. It wanted to see for itself what Williams can do in his unguarded moments. Through videotape of Williams on three consecutive days, it learned he could do quite a lot. See Defense Proffer No. 3 (one-hour videotape). 2 On one day the video shows Williams operating heavy equipment, unassisted. He moves freely about, tearing down a structure and loading scrap metal onto a truck—all while the equipment is vibrating heavily and obviously requiring some strength and physical effort to operate. 3 4 On another day, the video shows Williams working on the “monster tires” of his lifted truck. 5 RR 77. This footage tends to show that Williams, who had previously worked as a car mechanic, could still do this type of work. 6 RR 137. 5 Not only can Williams work, he can also play. While on medical leave (while Diamond Offshore was paying Williams his salary and medical expenses), Williams sent photos of himself deer hunting to his buddies on the rig. See Defense Proffer No. 2 (photos). Williams stood proudly next to a 120 pound doe. During the pretrial hearing in this case, Williams preemptively sought to exclude all of Diamond Offshore’s visual evidence and even its medical expert’s opinions formed after viewing that evidence. Williams assured the trial court that he would admit he could do everything the videotape showed, such that putting the visual evidence before the jury would be improper impeachment. The trial court ruled that Diamond Offshore could show the video to the jury only if Williams opened the door by denying things shown on tape: THE COURT: Here’s what I’m gonna do. You can keep it in your reserve bank for impeachment, and that’s it. So, if he opens the door, then we’ll take a look at it. 2 RR 29. The trial court did not view the video when making that ruling. 2 RR 25 (“Your Honor, I’m assuming you have never seen the video. THE COURT: No.”). The trial court stood by this ruling each time the evidence was offered at trial. See 4 RR 182; 5 RR 82; 6 RR 6. The trial court also excluded Diamond Offshore’s medical expert’s opinion formed after he viewed the video. 6 RR 236-43. 6 Without the benefit of this evidence, the jury returned a verdict for Williams on everything he requested. Their damages awards totaled $9.6 million. Tab B (verdict). The trial judge, the Hon. Alexandra Smoots-Hogan, signed a judgment on the verdict. Tab C (judgment). A panel of this Court divided on whether it was harmful error to exclude the surveillance video. The majority opinion, authored by Chief Justice Radack and joined by Justice Jennings, affirmed the trial court’s decision to exclude the surveillance video, concluding that the trial judge could have determined the video was inadmissible under Rule 403. Tab D at 26 (majority opinion). Justice Keyes authored a dissenting opinion that explained why excluding the video was harmful error. Tab E (dissenting opinion). 7 ARGUMENT The Texas Rules of Evidence ought to be reliable tools that work the same way in every type of case. Yet a panel of this Court has just created a schism between its civil and criminal dockets for the admissibility of surveillance video. To our knowledge, the Majority’s opinion is the only one in Texas to uphold the exclusion of a surveillance video in its entirety. The full Court should reconsider this ruling. I. The Admissibility Analysis for Visual Evidence in Civil and Criminal Cases Should be Uniform. This case is a referendum on whether the rules of evidence apply differently when visual evidence is offered by a civil defendant or against a criminal one. Gruesome autopsy photos are admissible against criminal defendants charged with murder. See Santellan v. State, 939 S.W.2d 155, 172-73 (Tex. Crim. App. 1997) (en banc) (affirming admission of “disturbing” photos over Rule 403 objection). Yet the Majority holds that ordinary video footage showing a personal injury plaintiff’s physical abilities is properly excludable as too prejudicial in a civil trial. The Majority found itself unaided by any “binding” authority and thus affirmed the trial court’s ruling as an exercise of discretion. The binding authority is Rules of Evidence 402 and 403. Courts applying these rules routinely admit the exact type of evidence that was excluded in this case. The ruling excluding the evidence in this case cannot be rubber stamped as within the zone of discretion. 8 A. Video surveillance evidence is routinely admitted under Rule 402. Video surveillance evidence in a personal injury case is “relevant,” as it tends to make disputed facts more or less probable. TEX. R. EVID. 401 & 402. Surveillance videos are thus routinely admitted in Texas personal injury trials because they are relevant and substantive.1 This Court’s Huston case is much like this one, involving a sharp dispute over liability and the severity and extent of back injuries. But unlike Williams, Huston hardly hit the jackpot. The jury returned a verdict in her favor for $96,000 —an order of magnitude less than the verdict in this case. Like Diamond, UPS argued that the plaintiff’s injuries were exaggerated and related to a prior injury and her degenerative disc disease. UPS Br. 26. But unlike Diamond, UPS was permitted to use its 20-minute surveillance video, which showed the plaintiff walking with no apparent distress. UPS Br. 26. On appeal, UPS lauded this evidence: “Perhaps the most damaging evidence to Appellant’s credibility was a surveillance video taken more than a year after the accident.” Id. The Home Insurance Company case is also much like this one, except the trial court admitted video surveillance evidence of the plaintiff—even though the plaintiff conceded he could perform the tasks it showed. 74 S.W.3d at 56-57. 1 See Huston v. United Parcel Serv., Inc., 434 S.W.3d 630, 642 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); Wal-Mart Stores, Inc. v. Hoke, 2001 WL 931658, *13 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Home Ins. Co. v. Garcia, 74 S.W.3d 52, 56-57 (Tex. App.—El Paso 2002, no pet.); Dunn v. Bank-Tec South, 134 S.W.3d 315, 328-29 (Tex. App.—Amarillo 2003, no pet.); Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416, 424 (Tex. App.—Eastland 2006, no pet.). 9 The seminal Fifth Circuit case on surveillance evidence fully explains why such evidence is admissible not just for impeachment but also as substantive proof. See Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993). A plaintiff’s personal injury claims render surveillance evidence of her abilities substantive, because “the severity of her pain and the extent to which she has lost the enjoyment of normal activity are among the key issues a jury must decide in calculating her damages.” Id.; see also Baker v. Canadian National/Illinois Cent. R.R., 536 F.3d 357, 368-69 (5th Cir. 2008). The highest court of Williams’s home state has found the exclusion of surveillance evidence to be reversible error in a personal injury case. See James v. Carawan, 995 So.2d 69, 75-78 (Miss. 2008). Evidence that undoubtedly would have been admitted at trial if Williams had filed suit in his home state of Mississippi is just as admissible in Texas, where the analysis is the same. Indeed, the admissibility of surveillance evidence as substantive evidence of personal injuries is accepted by courts from coast to coast.2 2 On the West Coast, courts have long held surveillance evidence admissible: “Surveillance evidence and the like, although useful for impeachment purposes under certain circumstances, also contains substantive evidence relevant to the matters in litigation[.]” Zimmerman v. Superior Court In & For Maricopa County, 402 P.2d 212, 217 (Ariz. 1965) (en banc); see also Heiman v. Market Street Ry. Co., 69 P.2d 178, 180-81 (Cal. Ct. App. 1937) (surveillance in the form of “moving pictures” properly admitted) (first video case); Crist v. Goody, 507 P.2d 478, 479-80 (Colo. App. 1972) (“We hold first that ‘surveillance movies’ are primarily substantive evidence and not totally or even basically impeachment evidence.”). On the East Coast, two high courts have reversed and remanded for new trials where surveillance videotapes were excluded. See Sweet v. Pace Membership Warehouse, Inc., 795 A.2d 524, 527-29 (R.I. 2002) (excluding video surveillance of personal injuries was harmful 10 On the criminal side of the docket, Texas cases discussing surveillance video evidence are a dime a dozen. More than 60 criminal cases within the First and Fourteenth Courts of Appeals reference the admission of surveillance video in the context of criminal prosecutions. Surveillance videos come into evidence even where defendants admit to the crime3 or where a witness is available to testify to the things captured on video.4 The admission of surveillance videos is so common that a defendant has argued that the trial evidence was insufficient because there were “no eyewitnesses or surveillance videos placing him at the scene.”5 error); Zegarelli v. Hughes, 814 N.E.2d 795, 798 (N.Y. 2004). A third high court has affirmed the admission of such evidence. McDougal v. McCammon, 455 S.E.2d 788, 795 (W.Va. 1995). In the Gulf Coast, Louisiana’s highest court has stated the relevance of surveillance video quite cogently: “When a plaintiff is claiming personal injury, a film, videotape or photograph taken surreptitiously of his activities by or at the direction of the adverse party is highly relevant with regard to the nature and extent of that injury and is likely to have a dramatic impact in court.” Moak v. Illinois Cent. R.R. Co., 631 So.2d 401, 404-05 (La. 1994) (discovery holding modified by Wolford v. JoEllen Smith Psychiatric Hosp., 693 So.2d 1164 (La. 1997)). The only debate about surveillance evidence concerns the timing of any pre-trial discovery. E.g., Smith v. Diamond Offshore Drilling, Inc., 168 F.R.D. 582, 586 (S.D. Tex. 1996). This is not an issue here. 3 See, e.g., Hernandez v. State, 01-13-00467-CR, 2014 WL 4113095, at *2 (Tex. App.— Houston [1st Dist.] 2014, pet. ref’d) (even though the defendant admitted that he stabbed the victim with a knife, the surveillance video showing this encounter was admitted into evidence and published to the jury). 4 See, e.g., Graves v. State, 01-07-00212-CR, 2008 WL 5263349, at *9 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (“The State presented the Coast Guard surveillance video along with the testimony [of the officer] responsible for security and surveillance around the Coast Guard facility.”). 5 See, e.g., Williams v. State, 01-14-00395-CR, 2015 WL 4591683, at *6 (Tex. App.—Houston [1st Dist.] July 30 2015, no. pet. h.). 11 B. Video surveillance evidence is rarely excluded under Rule 403. A Rule 403 balancing presumes that relevant evidence is admissible and asks whether the risk of unfair prejudice substantially outweighs probative value. TEX. R. EVID. 403. Video evidence usually has “substantial probative value.” Gordon v. State, 784 S.W.2d 410, 413 (Tex. Crim. App. 1990) (seminal case discussing admissibility of videotapes). The Texas Supreme Court explains that “many of the inherent problems with [eyewitness] testimony—inaccurate memory, poor eyesight, bias, etc.—are simply not present with a video recording.” Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 22 (Tex. 2014). The Texas Supreme Court twice observed in the context of surveillance video evidence that “a picture is worth a thousand words.” Id. at 17, 22. Unique circumstances may make a video properly excludable under Rule 403. For example, a trial court properly affirmed the exclusion of “a six second portion of [a] video depicting [the plaintiff] engaging in movements with his arm that appeared to be the simulation of an inappropriate act.” Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416, 419-20, 424 (Tex. App.—Eastland 2006, no pet.). Though the trial court admitted the rest of the video, it properly excluded the 6- second portion because “many jurors likely would have been offended by [this portion of the video]” and “one of the remaining portion of the video [already] showed Snyder using both of his arms to pick up a large object.” Id. 12 The Snyder decision illustrates that the “unfair prejudice” contemplated by Rule 403 is “an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.” Id. at 424; see also Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007); Texas Capital Sec., Inc. v. Sandefer, 58 S.W.3d 760, 779 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). Under this definition of “unfair prejudice,” courts routinely uphold the admission of surveillance evidence in personal injury cases despite Rule 403 objections.6 By contrast, imagine visual evidence showing a person’s gang tattoos, or leaving a disreputable business establishment, or kicking his dog. Jurors might not look past these irrelevant and potentially emotional facts, which is precisely what would make the risk of prejudice unfair. Other than the 6-second portion of surveillance video excluded in Snyder, we are unaware of any Texas case analyzing the exclusion of surveillance video. If left intact, the Majority’s decision will become the seminal case in Texas discussing the exclusion of an entire surveillance video in a personal injury trial. 6 See, e.g., Baker v. Canadian National/Illinois Cent. R.R., 536 F.3d 357, 369 (5th Cir. 2008) (Owen, J.) (holding surveillance evidence not unfairly prejudicial in personal injury cases; “Unfair prejudice is not satisfied by evidence that is ‘merely adverse to the opposing party.’”); James v. Carawan, 995 So.2d 69, 78 (Miss. 2008) (“Aside from its damaging effect to [plaintiff’s] case, we are unable to determine how [admission of video surveillance evidence] would unfairly prejudice [plaintiff].”); Samarkos v. Goddard, 2013 WL 2705964, *6 (Cal. App. 2013) (unpublished) (holding video surveillance evidence depicting a personal injury plaintiff’s daily living was not unfairly prejudicial; “prejudice” in the rules of evidence means “prejudging a person or cause based on extraneous factors”). 13 C. Rule 403 provided no basis to exclude the video in this case. The Majority held that the trial court could have determined that the risk of unfair prejudice outweighed the surveillance video’s probative value because it “created an impression that Williams could engage in physical activity for long periods of time without needing rest and without apparent pain.” Op. at 26. It is true that the video demonstrates that Williams can walk normally and withstand physical activity without limping, wincing, or showing other visual manifestations of pain. That this might have “created an impression” that Williams is exaggerating is precisely why it was offered. “The obvious purpose of these tapes [i]s to provide the jury with evidence [the plaintiff’s] injuries were not very serious.” Wal-Mart Stores, Inc. v. Hoke, 14-99-00503-CV, 2001 WL 931658, at *13 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (mem. op.). A surveillance video is not unfairly prejudicial simply because it does not capture events favorable to both sides. The truth seeking mission of a trial permits both parties to put on their best evidence. Only with a full and fair evidentiary fight can the jury discern which evidence to credit. The Majority erred by embracing a rationale that renders surveillance videos excludable in all personal injury cases, as plaintiffs can always think of something that the video does not show. 14 Further, in criminal cases, trial courts must view the videotape in order to determine its probative value and determine the risk of unfair prejudice. Gordon v. State, 784 S.W.2d 410, 412 (Tex. Crim. App. 1990) (a Rule 403 balancing “must be made by the trial court after viewing the tape”); Flannery v. State, 1999 WL 504183, at *2 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (“After watching the videotape outside the jury’s presence, the trial judge determined that it was ‘very probative.’”) Yet the Majority implicitly holds that the same balancing does not apply to the admissibility of visual evidence in civil cases. In this case, the trial court ruled that the visual evidence is admissible only for impeachment purposes—if the plaintiff denied what it shows, and on this basis it did not view the videotape to perform a Rule 403 balancing. 2 RR 29. The Majority nevertheless concludes that Rule 403 could have been a basis to exclude the videotape in its entirety. Op. at 26. Such a holding paves the way for arbitrary and capricious exclusionary rulings any time a plaintiff prefers that a jury not see the defendant’s visual evidence. The full Court should hold that a Rule 403 balancing cannot be done blindly. It should further hold that, in this case, there is nothing unfairly prejudicial about the evidence that substantially outweighs its probative value. It was harmful error to exclude Diamond Offshore’s visual evidence in its entirety. 15 PRAYER FOR RELIEF The en banc Court should grant review, reverse the judgment and remand for a new trial. Respectfully submitted, BECK REDDEN LLP By:/s/ Constance H. Pfeiffer David M. Gunn State Bar No. 08621600 dgunn@beckredden.com Constance H. Pfeiffer State Bar No. 24046627 cpfeiffer@beckredden.com 1221 McKinney, Suite 4500 Houston, TX 77010 (713) 951-3700 (713) 951-3720 (Fax) Adele Hedges ADELE HEDGES, ATTORNEY AT LAW, PLLC State Bar No. 09368500 ah@adelehedges.com 2719 Colquitt Houston, TX 77098 (713) 702-4289 ATTORNEYS FOR APPELLANTS 16 CERTIFICATE OF SERVICE I hereby certify that on September 4, 2015, a true and correct copy of the above and foregoing Motion for En Banc Reconsideration was forwarded to all counsel of record by the Electronic Filing Service Provider as follows: Jeff Oldham BRACEWELL & GIULIANI, LLP 711 Louisiana Street, Suite 2300 Houston, TX 77002-2770 jeff.oldham@bgllp.com Michael Patrick Doyle DOYLE LLP 2402 Dunlavy Street, Suite 200 Houston, TX 77006 mdoyle@doylelawfirm.com Walter Z. Steinman LAW OFFICES OF WALTER Z. STEINMAN 400 Greenwood Avenue Wyncote, PA 19095 wsteinman@steinmanlaw.com Counsel for Appellee Willie David Williams /s/ Constance H. Pfeiffer Constance H. Pfeiffer 17 CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Tex. R. App. P. 9.4 because it contains 3,056 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4. 2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14 point Times New Roman font. Dated: September 4, 2015. /s/ Constance H. Pfeiffer Constance H. Pfeiffer Counsel for Appellants 18 No. 01-13-01068-CV IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON DIAMOND OFFSHORE SERVICES LIMITED AND DIAMOND OFFSHORE SERVICES COMPANY, Appellants, v. WILLIE DAVID WILLIAMS, Appellee. Appeal from the 164th District Court of Harris County, Texas, Trial Court Cause 2011-31922 APPENDIX TO MOTION FOR EN BANC RECONSIDERATION TAB A Functional Capacity Evaluation (DX-28) B Jury Charge/Verdict C Trial Court Judgment D Court of Appeals Majority Opinion E Court of Appeals Dissenting Opinion Tab A Functional Capacity Evaluation (DX-28) 0 STATE OF .M ISSISSIPPI § COUNTY OF /.}i rd5 § AFFIDAVIT Medical Records Pertaining To: WILLIE DAVID WILLIAMS Date of Birth: 02/14/1969 Social Security Number: BEFORE ME,~ b]~ (NOTARY), the undersigned authority, personally appear"d LouQ.N"C CJ'Cidl~AFFIANT), who, being by me duly swor11, deposed as follows: My name 1s (AFFIANT). I am of sound mind, capable of making this Affidavit, and personally acquainted with the facts herein stated: I am a custodian of the medical records for Medicomp Physical Therapy. Attached hereto are ___{""'"--_pages from the medical records ofMedicomp Physical Therapy. These said _ __ _ pages of records are kept by Medtcomp Physical Therapy in the regular course of business, and 0 it was the regula.r course of business of an employee or representative of Medicomp Physical Therapy, with knowledge of the act, event, condition, opinion or diagnosis, recorded to make the record or to transmit infonnation thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the originals. Further, Affiant sayeth not. AFrIANT SUBSCRIBED AND SWORN TO BEFORE ME on this the /2- day of_ _f1U:~~-- 20 l 2. ...... (,,--~A?A @{~ ·• •• MIS •·· . •• 0 f .••..•. i1~~~ ~TAJiy ..~~·:\~-1 Pue(;.··!'~· ·"t··O 0·.-o · f~:' ~ ID ti 50453 \ ;_.. ~ PUBLIC IN AND FOR . : : DANA BLA'R , : . THE STA TE OF MISSISSIPPI EXHIBrf 0 ~ \ Co1t11tlsslon E1plrt1/ ••• ;.:.. Jun• 7, 2013 "°Y4'• .··'t .•-3.. I JL-28 ·~ .... •1c,;·······o··\\~ c ... MED 0629 F"RO'fk • \\/WorkWell 0 SYSTEMS.IN C Medlcomp Physical Therapy/Jackson 1054 Greymont Avenue Jackson, MS 39202 Su.mmary Reeort Name: Willie "David" Willi.ams Test Dates: July 71\ 2011 Gender: Male Date of Birth: 2114/1969 Physician: Dr. Pat BBITett Date of Injury: December 2007 Medical History: Reviewed in chart by PT, bx of discectomy and fusion. Employer: Diamond Offshore Primary Di•&nosis: Baok pa:iD 0 Reason for Tgnf!j • Determine physical abilities. Descrletioa of Test Dope: • One-Day Core WorkWcdl FCE Effort and Cooperation: • Client patterns of movement and physiologicfl) responses consistent with maximal effort. e Client demonstrated cooperative behavior and was willing to work to maxi.mum abilities in all test items .Qomistency of Performance: • Client gave maximal effort on all test .i tems as evidenced by predictable patterns of movement including increased accessory muscle recruitment, cowiterbalancing and use of momentum, and physiological responses such as mcreased heart rate. • Functional limitations noted are consistent with physical impairments and diagnosis Pain Report: • CJient reported discomfort present iD lower back during ma1erial handling tasks, but there was no mterference m safety. () MED 0477 FRO.. .JUL 1:Z 201.. 9': 18/ST. B: 17,No. 76315'!261:>415 p 4 Sf!-ety_; 0 • Client demonstrated safe perfonnance using appropriate body mechanics, throughout all subtests. ' Ou!ljty of Movement: .. Client demoll;Strated safe and appropriate changes in body mechanics, including use of accessory muscles. counterbalancing, and momentum, as load/force increased. These changes are expected and consistent with maximal effort. Ab!!ities/Strengtbs: • The client deinonstrates the ability to tolerate material handling tasks in the lower end of the MEDWM physical demand level. Umft!#om: • The client does have limitations with bending for long periods of time, standing. and antalgic gait. Potep.tial Barrlen tD1RetllrR to Wo[k: • Unabl.e to fully assess ability to tetum to work. as, validated job description was not available, verbaJ reports from client/strpe!Visor were used. 0 Plw&ial Ren1m. to 'Work Qptton1 ExQiopd: · ,. The large discrepancy between client nbillties and self reported job demands may indicate limited success of rehabilitati~ to prior level of function. Alternative placement may be the most feasible plan. Tbenpitt'1 ftec;pmmepdodolll Bc«arfljgg B.sturn.to Work; • AJthough job descriptions was oot obtained, based on supervisor and/or client report there is oot a job match. ~ummary/ll!com~ndatioo1; • These projections are for 8 hours per day/40 hours per week at the levels indicated on the FCE under basic ergonomic conditions. US DeDt o( Labor Phydcat D•••pd .Level: • MEDIUM () MED 0478 WorkWeU FCE Physical Exam 0 Syatem1 Review Blood Pressure: 149/99 He.art Rate (resting): 72 Height: 5, 11" Weight: 240 lbs. Gait: mild antalgic iait Posture: Unremarkable. Coordination: unremarkable Movement Characteristics: slow with sit to stand Atrophy/Edema: none observed. .Integumentary: tmremarkllble Mtisc.le Tone Spasms: unremarkable Musculosteletal Sntem Trank Normal Ralu!e of Motion Flex.ion 80 Mod loss 0 Extension Ri2ht Lateral Flexion 30 35 Major Joss Mod loss Left Lateral Flexion 35 Mod Joss Ri2ht Rotation 4.5 MOd loss Left Rotation I 45 Mod loss Commentl/Qoality of Modoo-- Spine: • Cervical ROM VINL • Most dysfunction is with standing trunk extension. Comments!Quality of Motion- Upper Quarter: • Shoulder/elbow/wrist/hand ROM and strength WNL. Commeuts!QuaUty of Motion· Lower Extremity: • Hip ROM WFL, althouih there is a limitation with internal rotation (0 degrees bilaterally). Strength WNL. • Knee, an.k:1e ROM and strenat}l WNL. Neuromuscular Syttem Sensory Testing: unremarkable Reflex Ankle Jerk: NA Reflex Knee Jerk: NA c Reflex Upper Extremities: NA MED 0479 FROtt (TUE)JUL.. 12 :2011 e: "1'9/6T. 8! "17/Ho. "76·36':Zl5134S p a 0 Balance , • SLS each leg was >I 0 seconds. First Day S1111tmary of Physical A.8senment~ • Gross limitation with trunk ROM, decreased tolerance to extension. • Modifie.d Oswestry Pain Questionnaire: 90%. This score is consistent with patients that are either bed bound or exaggerating their symptoms. This score is not consistent with what the client was able to do during the FCE. The client's perception of abilities is less than what be is capable of doing. 0 0 MED 0480 F°".OM (TlliE)JUL 1:2 :2011 B: 'TB.l'ST, s; T7.l'No. 7B382:9T348 p 7 0 WorkWeH FCE Test Results and Interpretation The inu:rpretation of Woric:Well's standardized functional testing is based on assumptiona incluclin8 notmal breaks, buic ergonomic eondition5 and that lhe tested functions are usually not required more than 213 ofa nonno.l wor!cing day. Jfa function i!I required continuously, job related testing llht>uld be perfonnerl. (nterpretarion of ob11en1ed function. regarding activity during a nonnal worlc:ing day rosltfoa/Ambaladon Freq11eucy Weighted Activities QaHdtatlve + % of Workday Ob1erved Effort Level Oualttatlve Results NEVER Contraindicated N'otPossible 0% RARELY Maximum Sianificant Limitation l-5% OCCASIONALLY HeeVY Some Umitation 6-33% FREOUENTLY Low Slight/No Limitatioo 34-66% SELF LIMITED Clic:at stmmed test· submaximum effort level Subma:x% Ufthaa, Stren:th Ullable Mu. Heavy Low Llmftatlen• Rec:ommendlltioas Obsl Waist to Floor 30# 25# 0# Umited standing tolenrnce. (l I"\ Waist to Crown 30# 25# 0# Limited standing tolerance an [adder· Two x Excessive 1.1st UE pulling. Handed 0 MED 048 1 FROM 0 Summary Table Patient: Willie David Williams DOB.: 2114/1969 Lifting, Strength Rarely Occaslonally Frequently (lb$) f1-5%) (8-33%) (34-G8%~ Weist to Floorl11•) 30# 25# 0# Waist to crown (Hands at Handles! 30# 25# 0# Walat to CrCM'n 30# 251 0# (Preferred Method} Front Carry (Lono) 351 JOI 0# RIQht Canv 30# 25# 0# Pu&h·Pull (static) Force Generated Push Static 150# PlJllStatlc 175# Postut'•, Flulbl!lty, Ambutation Elevated Wort (UnwelghtedJ OccaslonaUv Fwd Bend Standln!l Occasionallv Slttina FreouentlY Standlno Work Oceasionall\I Walklna- 6MWT Occaeionall\I Crouch Oecaslon111v KneelinQ/Half-kneefino Oc.caslonallv Stairs Occaslonallv Steo Ladder- Two Handed ' Occaslonallv Physical Demand Level: MEDWM u MED 0482 Hand/Finger 0 Strength FlandGri Hand Ori Coordln•doo Number Percentile Limltadon Recommendations Comnleted Purdue Pegboard Right IS 2s•h Purdoe Pegboard Left 14 i 14th Pwi:iue Pegbolltd Assembly 18 1 . Q L\D!E.5 AND GENTLEMEN OF THE JURY: This case is submitted to you by asking you 4u~stions about the. facts, which you must decide from the evidt!ncc you have heard in thi::; trial. You. are the sol~ judges of the credibility of the witnesses and the weight to be given their testimony, but in matters of law, you must be governed hy the instructions in this charge. In discharging you:r rl'Spon~ibility on this jury, yriu will observe all th~ inf.tructions which have previously been given you. 1 sho.11 now give you ~dditional inslructhms which you ~hould carefully t1nd !'trktly follow during your ddibt:r~tions. l. Do not let bias, prejudice or sympathy play any part in your de.liberation~. 2. In arriving at your answers, consider only the evidence introduced ht:1re under oath and such exhibits, if any, ~-\shave been introduct;?d for your consideration under the rulings of the Court, that is, what you 11ave sec~n anJ hec\rd in this courtl'oom to~)ether with the Jaw as gtven you by the Court. In your deliberations, you will not consider or discuss anything that is not representC'd by the Pvidence in this Cthmi of chance. Do not return a quotient Vt:!rdkt. A quotient verdict means that the jurors agree to abide by the result to be reached by udding together each juror's figures and then dividing by the number of jurors to get an average. Do not do any trading on your answers--that is, one juror should not agree to answer a certain question in a certain wciy in ~xchange for unothcr juror answering another yucstion in a certain way. 6. You may rend~r yo:.ir verdict 0n the vote of ten {10) or more ni.~mbers of the jury. The same ten (10) cw more of you must agree upon all of the answers made and also ~1grc~ .is to the entire verdict. You will not, therefore, cnler into an agreement to be bound by a majority or any other vote of less than ten (10) jurors. ff the verdict and all answers therein are reached by unanimous agreement, the presiding juror shall sign the verdict for the (m~ire jury. If any juror 1.fomgrees as to any an-;wer made by the verdict, those jurors who agree as to all findings shall each sign the verdict. The~e instruction~ are given to you lx.'Causc your conduct is subject to review the ~ame as that of the witnesse.'), parties, attorney and th~ .iuther trial by amlthcr jury; then all of our tim~ will have been wasted. The presiding juror or any other who observes a violation of the Court's instructions shall ilnmediateiy warn the one who is \'iolating the same and caution the jllrm· nc>t to do so again. When the wo.rd~ are us~ act done or heard the word~ spoken. A fact is eSt'1b1ished by circumstantia1 evidence when jt may be fairly and rr"sonably inf.erred frt,m other focts 2 233 provided. ln answering questions about damages, answer plaintiff, Willie David Williams, a seaman, is ly. The plaintiff is not rc1.1uircd to prnve both of thes~ clC\ims. He may rec.over if he proves either one of them. However, he may only recover those damages or benefits that the law provides fur th!;! particular claims that he proves; he may not recover the exact same damages or benefits more than once. Not every mJury tht:1t follows an accident necessarily results from it. The acciJcnt must be the cause of the injury. In determining causi:ition, different rules apply lo the Jones Act Claim anJ to the unseaworthiness daim. Under the Jones Act, f mused the acdd~nt. (n conducted its operations !n a mannl!r similar to that of oth~r companies is not conclusive as to whether the defendants were n~gligent or not. You must determine 1f the operation in questio.n was reasonably safe under the circumst~nces. The fact that a certain practice has been continued for a lm1g period of time does not necessarily mean that it is reasonably safe under all circumstances. A lnnp, a..:cepted practice may be «n unsafe practice. HowL'Ver, a practice is not ncccsstirily unsafe er unreasonable merely because it injures someone. A seaman's employer is legally responsible for the i1egligence of one ol his employ~t:!s while that ~mployce is acting withiH th~ course and sc.·,)pe of his employment. 5 236 Do you find that Diamond Offshore was negli~ent and that such negligence was a c.:iuse, in whole or in part, of Willie David Williams' injuries? Answer "Yes" or '1 No": 237 Question 2 UNSEAWORTHINESS The plaintiff, WUlie David Williams, seeks onm.ages for personal injury that he claims wns caused by tht> unseaworthiness of thL' defendant's vesst>l, the OCEAN LEXINGTON. A ve8sd owner owes to (!Very member of tht.• crew employed on its vessel the absolute duty to keep and maintain the vcs!:id, cmct afl deck and passag~ways, applianr~s, gear, tools, parts and equipment of the vessel in a seaworthy condition at all times. A seaworthy vessel is one that is reasonably fit for its intended use. The duty to provide a SC.:lworthy vessel is absolute because the ownt>r may not delegate that duty to anyone. Liability for an unseaworthy condition doc::. not in any wny dept.>nd upon negUg..mc~ or fault or blame. Jf an owner does not provide a seaworthy v~s~el- a v~s.sd that i!i reasonably fit for it:; intended use-no amount of care of prudence excuses the owner. The duty to provide a seaworthy vessel includes a duty to supply '11'\ adequate and C(.)rnpetent crew. Hm·...-ever, the owner of a vessel is not required to furnish an accident free ship. He nel;!d only fo.nush a vessel and its appurtenances that are rea..c;onably fit for their int0111.J~d use and a crew that is reasonably adequate for their assigned lasks. The vessel owner is not required to provide the best appliances and equipment, or the finest of crews, on his vessel. He is only required to provide a g(~ar that is reasonably proper and suitable for its intended u:::;e, and a crew that is reasonably adcg1.1ate. In summary, if you find that the owner of the vessel, Diamond Offshore, diu not provide r jf you find that the vessel was in any mannt>r unfit in accordance with the law as t havt! just explained it to you and that this was proximate cau:;e of the injury, a term I will explain to you, then you may find that the ve~sel was unseaworthy and the ship owner liable, without considering any negligence <>n the part of the defendant or any of its employees. However, if you find thJt the owner had a capable crew and appliances and gear that were safe and suitable for their intended USL', thre also negligent and liable. However, the omount of his recovery will ht: reduced by the extent of hi~ contributory negligence. A seamnn is obligated under the Jones Act to you find that Willie Dnvid Willi3ms waworthiness do you attribute to each person or entity na.med below? Your total should cqual 100%, and you should answer in whole numbers only. If you do not find a party to be at fault, enter a zero (0) in the column next to the appropriiltc name. Question4 Diamond Offshore .~3_0_% OCEAN LEXINGTON (the vessel) ~(p~O_% Willie David WiHiams ~10 . _% lO 241 Question Nu. 5 DAMAGES If you find that a defendant is liabk, you must award the amount you find by a prep1mderance of the evidt>nc~ as full and just compensation for all of the plaintiff's dJm~ges. Compensatory damages are not aHow~d as a punishment against a party. Such damages cannot be bc:ised on speculation, for it is only actual damages ·what the l"w calls compensatory damages - that are recoverable. However, Mmpen~atory dama~es are not restricted to actua! loss of time or money; tht?y include bMh th~ men.ta! and physical aspects of injury, tangible and intangible. They are an attempt to make the pkiintiff whole, or to n:istorc him to the position he would have been in if the accident had not happened. You should consider tht> following elements of damages, to the ext~n.t you find that the plaintiff has established such damages by ii preponderance of the evidence; phy..-ical yain and suffering including physic411 disability, impairment, ;md incoiwultc-d from the aggravatio11, ~nd make alfow.ance in your verdict lmly for the aggravation. Future medical exp~ti.ses include the reasonable value of the t:!xpense of hospitalization, medicat and nllrsing care and treatment that the plaintiff will require in the future because of his it1juries which were caui;ed by the defendants' wrongful comlur.t. A person wbl) cltlims dilm•1ges resulting fnJm the wrongful act of Jnother has "' r those damages which he would have -o 1 OO O ~ \ '\.'\.~ ~ h. Disfigurement that, in reasonable probability, David Williams will sustain .in the future. Answer;_$ i. Medical care expenses that, in reasonable probability, will be incurred in the future. Answt~r: $ -r disclose to ..inyone, not even to me, yi.)Ur numerical division oa any question. Unless J Jirect yt)U (•thcrwise, do not revecJl your .:inswcrs until such Hm1: a5 you are discharged. When you have answered all the questions you are required to an.o;wrr under my instructions and your presiding jurnr has placed your lal sum of $8,512,068 as actual damages (which .represents the total recove1y Jess the ten percent (10%) of fault nttdbuted to Willie David Williams by the ju1y, then less an offset of $197,29.3 reduction for the net advances paid by Defendants); and IT IS FURTHBR ORDERED, ADJUDGED, AND DECREED t1mt PJftintiff Willie Dttvid Williams recover from Defendant Diamond OffshGre Services Co111pany, owne1• of the vessel OCEAN LEXINGTON, prejudgment intel'est totaling $2~5,381 coverh1g the pe1'iod from J1muruy 7, 2008, tlU'ough Octobe1• 11, 201~, (which represents $1,557,793 It' pnst dnmages les9 an offset of $197,293 for the net Advances p1·eviously paid by Defendant, leaving past losses nftet• reduction Cor advances of $1,360,500, then 1·educed to the 60% of fault determined by the ju1y to be due to the unseaworthiness of Diamond Offshol'e Se1·vices Compru1y's vessel, thereby totftllng $816,300, then calculated at five perceJ\t (5.0%) simple interest). The amount of the actual damages ns awarded by the jury, logethe1· with the prejudgment intel'est as cakulnted above thl'Ough Octobe1· 11, 2013, is $8,747,4.49. In the event that the Judgment Is not signed on October 11, 2013, 2 259 there shall be ._ctditionnl prejudgment lntc1· much less to subject it to the balancing required by Rule 403. See Bay Area Healthcare Grp., 239 S.W.3d at 234; PPC Transp., 254 S.W.3d at 643; TC"'A Bldg. Co., 922 S.W.3d at 637; see also Baker, 536 F.3d at 369; James, 995 So. 2d at 76. In my view, the trial court's decision to exclude the video can only have been made without reference to any guiding rules or principles, and its exclusion was, therefore, an abuse of discretion. See Alvarado, 897 S. W.3d at ;754. 2. Authentication o[video Williams also argues, however, that the trial court's ruling excluding the surveillance video can be upheld because Diamond Offshore did not establish the authenticity of the video. I find this argument likewise unavailing. Authentication concerns whether the item of evidence in question '"is what its proponent ciaims.:' See TEX. R. EvID. 9Ul{a), 61 TEX. BJ. 374, 397 (Tex. & 22 Tex. Crim. App. 1998, amended 2015) ("The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.")_; Dunn, 134 S.W.3d at 329 (''[T]he admissibility of a video is conditioned upon its identification by a witness as an accurate portrayal of the facts, and on verification by that witness or a person with knowledge that the photograph Is a correct representation of such facts."). ln Dunn, the Amarillo Court of Appeals held that the plaintiff could authenticate a surveillance video introduced during his cross-examination by agreeing that he was the person filmed and by "describ[ing] the things he was doing in [the video]." Id. at 329. The court concluded that Dunn's testimony "effectively supplied the predicate for the video's admission by revealing that its content was [l1J. accurate portrayal of the acts he was doing" and affirmed admission of the video. id. Here, Williams agreed, both in a pre-trial written brief and at a pre-trial hearing, that the proffered video depicted him performing various outdoor activities. He argued that the trial court ought to exclude the video not on authentication grounds but ( l) because he would testify that he could do the activities depicted in the video, albeit for short periods of time only and that he would be in pain later, and thus the video did not constitute proper impeachment evidence, and (2) because the video did not fairly depict his post-injury abilities in 23 that it did not show that he needed rest and it did not reflect his pain. In making these arguments to support exclusion of the surveillance video~ Williams conceded that he was the person depicted in the video and that the video accurately portrayed the acts that he was doing, although he argued that the way in which the video depicted these acts was "misleading,.' 1 thus "effectively supply[ing] the predicate for the video's admission by revealing that its content was an accurnte portrayal of the acts he was doing." See Dunn, 134 S.W.3d at 329. I would conclude, therefore, that the trial court's ruling excluding the video cannot be supported on authenticity grounds. See TEX. R. Evrn. 90l(a). 3. Cumulative effect of video Lastly, Williams argues that the trial court appropriately excluded the video because it was cumulative of his testimony that he could perform the acts depicted in the video. See TEX. R. Evrn. 403. Rule 403 allows trial courts to exclude relevant evidence if its probative value is substantially outweighed by a danger of "needless presentation of cumulative evidence.'' Id. However, as Diamond Offshore points out, the Texas Supreme Court has recently noted, in a spoliation of evidence context, the "differences in kind and quality between" evidence such as testimony and visual evidence, such as a surveillance video. See Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 22 (Tex. 2014). The court observed that 24 [A] spoliating party might argue that no prejudice resulted from spoliation of a video of an incident because there is also eyewitness testimony regarding the incident. But many of the inherent problems with such testimony-inaccurate memory, poor eyesight, bias, etc.- are simply not present with a video recording. Again, a picture is often worth a thousand words. Id.; see also In re KY., 273 S.W.3d 703, 710 (Tex. App.-Houston [14th Dist.] 2008, no pet.) ("[V]isual evidence has significant probative value apart from testimonial evidence on the same subject."). There is a qualitative difference between Williams' testimony at trial that lre could perform activities for a short period of time, but that it hurt him to do so, and a video recording of WilJiams performing the same activities unaware that he is being filmed and with no incentive to exaggerate the extent of his injuries. Thus, the video is not cumulative. Without the video there is nothing to show that Williams could, in fact, perform the tasks the video showed him performing, and how he performed those tasks, placing squarely before the sight of the jury the credibility of Williams' testimony that he could perform these tasks only with pain and difficulty. Thus, the surveillance video is not merely duplicative of other testimony but highly probative with respect to the extent of Williams' injury at Diamond Offshore to rebut interested testimony favorable to Williams' case. I would conclude that the surveillance video proffered by Diamond Offshore was not cumulative of Williams' testimony. Instead,. it had significant probative 25 value apart from any testimonial evidence on the same subject. See Brookshire Bros., 438 S.W.3d at 22; In re K.Y, 273 S.W.3d at 710. 4. Harm analysis For the foregoing reasons, I would hold that the trial court erred in excluding the proffered surveillance video from the evidence, and I would tum to whether the exclusion of the surveillance video constituted reversible error. See Halm, 394 S.W.3d at 34 (stating that, to constitute reversible error, appellant must demonstrate that error was reasonably calculated to, and probably did, cause rendition of improper judgment). I would hold that it probably did. As stated above, Williams sought damages for, among other things, future pam and mental anguish, loss of future earning capacity, and future physical impairment. Williams presented testimony from a number of witnesses that he could no longer be employed in any job, even one that involved light or sedentary work, due to his chronic pain and physical limitations. He presented testimony that he could no longer do the activities that he used to enjoy to the extent that he could before his injury due to his chronic pain from his injury.: and he testified that, when he did engage in those activities, he could do so only for a short period of time and that it hurt him to do so. He testified that, after the injury, he could no longer enjoy life the way he used to do. The jury credited this evidence and awarded Williams~ a iong-time offshore rig worker who had a history of degenerative ch(lnges in his 26 back 1 just over $8.5 million in damages~ including $3.4 million in future physical pain and mental anguish, $2,254.275 in loss of future earning capacity, and $1.7 million in future physical impairment. The proffered surveillance video goes to the heart of each of Williams' damages questions. The video depicts Williams using his excavator, picking up debris and scrap materials, picking up large tires, repairing vehicles, and bending and stooping to perform these activities. The video thus calls into question his experts' contentions that he could not perform any of the work of a mechanic after his injury at Diamond Offshore and that he cannot perform any work in the future due to his chronic pain. The video also casts doubts on the extent of Williams' pain and the degree to which his injury has affected his ability to enjoy life, in that it would have enabled the jury to observe Williams as he performed these activities, implicating the future physical impairment award. Because the trial court failed even to view the surveillance video or to perform the balancing test required by Rule 403, and thus excluded it arbitrarily and without reference to any guiding rules of principles, and because it was highly probative and not unfairly prejudicial, and therefore clearly admissible under the plain language of Rule 403 and controlling and persuasive authority, 1 would hold that the trial court clearly abused its discretion in excluding the surveillance video from evidence. I would also conclude, based on the foregoing facts and law, that Diamond Offshore has established that the exclusion of the surveillance video was ''reasonably calculated toi and probably did, cause the rendition of an improper judgment." Hahn, 394 S.W.3d at 34; see also James, 995 So. 2d at 78 (holding that exclusion of surveillance video affected defendant's "substantial right to present his defense" and thus constituted reversible error). I would therefore hold that the trial court committed reversible error when it excluded Diamond Offshore's proffered surveillance video. I would sustain Diamond Otfshore's first issue. Conclusion I would reverse the judgment of the trial court and remand the case for a new trial. Evelyn V. Keyes Justice Panel consists of Chief Justice Radack and Justices Jennings and Keyes. Justice Keyes, dissenting. 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4068251. Public record. Not legal advice.