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Use of Surveillance Video in Texas Oil Rig Work Injury Case

_MG_9271Diamond Offshore Services Limited v. Williams is a Jones Act case that arose when the plaintiff injured his back while trying to fix machinery on an offshore oil rig operated by a Texas defendant in Egypt. The plaintiff was a mechanic who had worked for the defendant two different times and in different capacities for about a decade.

One afternoon, before he was scheduled to come back to the U.S., a driller told him that the elevators had failed and he needed to repair them. He worked on the elevators for 30-40 minutes. He bent at the waist to scoot the elevators, which weighed hundreds of pounds, into his work area. While working, he felt a sharp lower back pain. When he was done, he saw a doctor who told him to rest. The next day, he felt back discomfort when bending in his bed.

The man’s back continued to hurt when he got home, and the defendant referred him to an orthopedic surgeon whom he saw 10 days later. The orthopedic surgeon was independent but had seen patients off and on for the defendant. The man told the doctor that he hurt his back on a rig in 2006, two years before the incident at issue in this case, and that he had leg pain.

An MRI showed an L4-L5 disc herniation, degenerative changes, and a bulge at L5-S1. The man underwent physical therapy for six weeks before the doctor saw him again. After further MRI findings, the doctor performed a micro discectomy to relieve his leg pain. His back pain, however, remained. In 2009, the doctor performed a fusion surgery on him.

Later, the doctor stated he wouldn’t release the man to his former career on an offshore rig, and he opined that the man would have a hard time doing even sedentary work that involved sitting for long periods. He considered the plaintiff totally disabled. Another doctor agreed but noted the man could undergo another surgery to improve his pain. An economics expert calculated the man’s lost earning capacity with the assumption that the plaintiff would never go back to work. In 2011, he underwent an evaluation of his functional capacity, and it concluded he could perform medium level work.

The plaintiff sued the defendant for his personal injury damages under the Jones Act. The defendant questioned the plaintiff about his ability to work. The plaintiff testified that the work hurt him, but it was the doctors who said he couldn’t work at all. He also testified he couldn’t enjoy his life the way he used to. His family and friends testified about the stress placed on the plaintiff and his family after the incident. A vocational rehabilitation counselor testified that the plaintiff couldn’t maintain employment even at lower levels because of his chronic pain. He also disagreed with the functional capacity evaluation, noting that the plaintiff was limited in his ability to stand, walk, and stoop.

At trial, the plaintiff objected to various pieces of evidence, including a surveillance video taken in 2012. The video showed him able to repair his four-wheeler and operate a mini-excavator. He was able to bend and lift in the video. The plaintiff argued the video had no impeachment value because he had never claimed to be unable to do the activities shown in the video. He also argued that the prejudicial impact of the video outweighed its usefulness in proving anything.

The defendant argued that the video showed the plaintiff could easily pick up debris, operate machinery for an extended period of time, and dispose of stuff in his trailer. It argued that the video was substantive evidence of his physical condition after the accident and could impeach the plaintiff’s testimony about his limitations.

The court ruled the defendant could keep the video for purposes of impeachment only. Although the defendant repeatedly asked to use the video, the court refused to admit it. The jury found that both the defendant and the plaintiff were negligent. It assigned 30% of the fault to the defendant operator, 60% to the vessel Ocean Lexington, and 10% to the plaintiff.

The defendant appealed. It argued, among other things, that the trial court had erred in excluding the surveillance video. The appellate court explained that Texas courts have admitted surveillance videos in personal injury cases. However, there was no Texas case that addressed the admissibility or propriety of such evidence on appeal. The appellate court noted that the plaintiff had acknowledged in his testimony that he could perform the activities shown in the surveillance video, but he could only do them for a short while before feeling pain, and his friends and family had corroborated this testimony.

The appellate court explained that since there was no authority stating that a trial court judge shouldn’t have discretion over a post-accident surveillance video, it couldn’t conclude there was an abuse of discretion here. It found that the trial court could reasonably determine that the video, which was a continuous one-hour long video edited from scraps of time on three different days, created a prejudicial impression he could engage in physical activity for a long period. The appellate court affirmed the trial court’s judgment.

If you are injured on an oil rig, the experienced San Antonio oil accident attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.

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