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Smile! You're on Camera!

Cheaters isn't the only one that knows the importance of video surveillance. The Texas Supreme Court does as well. In recent years, the use of video surveillance in personal injury lawsuits has grown increasingly popular....and controversial.

In its recent decision in Diamond Offshore Services v. Williams, the Texas Supreme Court held that trial judges must review surveillance video, BEFORE ruling on its admissibility, when the content of the video is at issue.

In Diamond, Willie David Williams ("Williams") sued his employer, Diamond Offshore Services Limited and Diamond Offshore Services Company ("Diamond"), under the Jones Act alleging that Diamond was negligent and the drilling rig was unseaworthy. Diamond employed 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.

Within thirteen months of his injury, Williams underwent two back surgeries and alleged that he continued to suffer back pain. He was declared "totally disabled" by his treating physician. He never returned to work.

After filing suit, Williams underwent a functional capacity evaluation (FCE) where it was found that his responses were "consistent" with patients who are "exaggerating their symptoms."

Due to this, during discovery, Diamond hired a private investigator who recorded Williams for about an hour over two consecutive days. On the first day, Williams was recorded for 27 minutes using a mini-excavator to clear away a dilapidated mobile home, bending over thirty-four times during a four-minute span. On the second day, for 32 minutes, Williams was filmed working on his lifted truck and using his body to maneuver a large "monster wheel" onto his truck.

During trial, Williams testified that he could no longer do activities that he formerly enjoyed, such as using his excavator and working on his truck. Diamond offered their video surveillance as evidence to counter Williams' testimony. Williams objected and argued that the video should be excluded under Texas Rule of Evidence 403 as the video was substantially more prejudicial than probative.

During the motion in limine hearing, the trial judge admitted that she had not watched the video, but ruled that Diamond could use the video for impeachment purposes if "Williams opened the door." However, during the trial, Diamond offered the video on three separate occasions, and each time, the district judge excluded the video.

Ultimately, the jury returned a verdict in favor of Williams for nearly $10 million in damages.

In a split decision, the court of appeals affirmed, determining the trial court had not abused its discretion in excluding the video.

On appeal, the Texas Supreme Court ruled that (1) the trial court abused its discretion by excluding Diamond's surveillance video of Williams without viewing it first; (2) the video should not have been excluded under Rule 403; (3) and doing so was harmful error.

First, the Court held that a trial court generally must view video evidence before ruling on admissibility when the contents of the video are at issue. There are some exceptions, such as (1) when it is obvious that the potential prejudice substantially outweighs any probative value, (2) video depositions, and (3) offering a lengthy video too close to trial. The case at issue did not justify any of those exceptions.

Second, the Court found that the video's prejudicial effect did not substantially outweigh its probative value, and should not have been excluded under Rule 403. Williams' main objection was that the video falsely portrayed him as someone who was able to be physically active without any pain. However, the Court concluded that video evidence is not misleading just because it does not support the opponent's view of the case. That's the point of an adversarial system.

Finally, the Court concluded that excluding the video was harmful error. The court reasoned that Williams' credibility was critical to the defense's case, the video was crucial to the defense's theories, and the exclusion probably had an improper effect on the jury. Therefore, the court reversed and remanded the case for a new trial.

This case has a very simple rule: a trial court must review video evidence before ruling on its admissibility. As the use of technology to defend (and quite honestly, bolster) personal injury cases becomes increasingly popular, trial courts will continue to encounter these evidentiary issues. Diamond Offshore Services v. Williams is just the first of many to come.


Diamond Offshore Servs. v. Williams, 542 S.W.3d 539, 546 (Tex. 2018).

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