Opinion issued July 21, 2015




                                     In The

                               Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                               NO. 01-13-01068-CV
                           ———————————
      DIAMOND OFFSHORE SERVICES LIMITED AND DIAMOND
           OFFSHORE SERVICES COMPANY, Appellants
                                        V.
                    WILLIE DAVID WILLIAMS, Appellee



                   On Appeal from the 164th District Court
                            Harris County, Texas
                      Trial Court Case No. 2011-31922



                            DISSENTING OPINION

      I respectfully dissent, and I urge the Texas Supreme Court to take this case

to establish the criteria for exclusion of a surveillance video in the Texas courts

under Texas Rule of Civil Procedure 403, which governs the admissibility of
evidence whose probative value is allegedly substantially outweighed by the

danger of unfair prejudice or needless cumulativeness.

      In this case, the trial court refused to admit into evidence a surveillance

video showing the plaintiff, Willie David Williams, performing multiple physical

tasks while at the same time seeking recovery for total and permanent disability

allegedly caused by an on-the-job injury at Diamond Offshore. The jury awarded

Williams $8.5 million in damages. The panel majority affirms. Because I believe

the trial court’s suppression of this probative evidence was prejudicial to Diamond

Offshore, caused an unfair trial, and probably caused the rendition of an improper

judgment, I would hold that the trial court abused its discretion. I would reverse

the judgment of the trial court and remand for a new trial.

                                    Background

      Williams, a long-time offshore rig worker, served as a mechanic on an

offshore oil rig located off the coast of Egypt that was owned and operated by

Diamond Offshore. On January 7, 2008, he worked for approximately thirty to

forty minutes repairing a set of elevators on the rig before he injured his back.

When his back pain continued unabated after returning home from the rig,

Williams saw Dr. Patrick Barrett, an orthopedic surgeon.

      An MRI performed in December 2005 as part of pre-employment screening

had indicated that Williams had bulging discs and “[d]egenerative disc disease of


                                          2
the lumbar spine” two years before his back injury on the Diamond Offshore rig.

In addition, Williams informed Dr. Barrett that he had also injured his back on a

rig in 2006 and that he had had ongoing back pain since that injury. Dr. Barrett

ultimately performed two surgeries on Williams’ back: a micro discectomy in

April 2008 and a fusion surgery in February 2009. Williams contends that, as a

result of his injury on the Diamond Offshore rig, he is totally disabled and unable

to return to work.

      Before trial, Diamond Offshore indicated its intent to offer into evidence a

post-incident surveillance video of Williams taken by an investigator it had hired.

The video, which was slightly over an hour long, contained footage of Williams

working outside his home on three consecutive days in December 2012, nearly five

years after his injury occurred at Diamond Offshore. The video depicted Williams

performing such tasks as repairing a four-wheeler vehicle, operating a mini-

excavator, and performing other activities involving bending and lifting.

      Williams sought to exclude the video, arguing that the video lacked any

impeachment value because he had never claimed that he could not do the tasks

depicted in the video. He also argued that the prejudicial effect of the video

outweighed any probative value that the video might have and that the video could

not be admitted as substantive evidence because “such a minimal and random view




                                         3
of plaintiff’s life cannot possibly be a fair representation of his disabilities or

abilities since his injury.”

       In response, Diamond Offshore argued that the video demonstrated

Williams, “with evidence ease,” “bending, stooping, reaching, and throwing as he

manually picks up debris on his property and puts it in the back of a trailer. He

gets back in his trailer, hauls it off. He’s apparently disposing of stuff.” It

contended that the video was admissible both as impeachment evidence and as

substantive evidence relevant to Williams’ post-incident physical condition, which

went to the heart of all of Williams’ future damages claims.

       The trial court agreed with Williams and excluded the surveillance video,

informing the parties that Diamond Offshore could “keep [the video] in your

reserve bank for impeachment, and that’s it. So, if [Williams] opens the door, then

we’ll take a look at it.” The trial court did not view the video either then or

subsequently.

       Diamond Offshore sought admission of the surveillance video on several

occasions throughout trial, arguing that the testimony of Dr. Jose Rodriguez, an

orthopedic surgeon who reviewed Williams’ medical records but did not treat

Williams, and the testimony of Williams himself concerning the activities that

Williams could perform after the incident were both contradicted by the contents

of the video and that Diamond Offshore should be allowed to impeach the


                                         4
witnesses with the video. Williams, for example, testified that he could still

perform activities such as bending over, sitting and standing for long periods of

time, working on cars, and using his excavator, although he was limited in the

amount of time that he could do each activity, that his “back hurts constantly,” and

that it hurt him to do the activities that he used to do before his injury. On each

occasion on which Diamond Offshore sought to admit the surveillance video, the

trial court refused to admit it without viewing it.

      The jury ultimately apportioned 30% fault for Williams’ injury and damages

to Diamond Offshore, 60% fault to the vessel Ocean Lexington, and 10% fault to

Williams. The jury’s verdict included, among other amounts, awards of $3.4

million for future physical pain and mental anguish, $2.2 million in loss of future

earning capacity, and $1.7 million in future physical impairment. After reducing

the jury verdict by 10% due to the fault apportioned to Williams and after applying

a nearly-$200,000 offset, the trial court entered judgment against Diamond

Offshore in the amount of $8,512,068.

                         Admission of Surveillance Video

      In its first issue, Diamond Offshore contends that the trial court erred in

excluding the post-incident surveillance video of Williams that it proffered. I

agree with Diamond Offshore that the trial court should have admitted the




                                           5
surveillance video and that the court’s failure to do so resulted in an unfair trial,

probably caused the rendition of an improper judgment, and requires reversal.

      A. Standard of Review

      Under the Texas Rules of Evidence, “[a]ll relevant evidence is admissible”

unless otherwise provided by constitution, statute, or rule. TEX. R. EVID. 402, 61

TEX. B.J. 374, 377 (Tex. & Tex. Crim. App. 1998, amended 2015) (hereinafter,

“TEX. R. EVID. 402”).1 “‘Relevant evidence’ means evidence having any tendency

to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.”

TEX. R. EVID. 401, 61 TEX. B.J. 374, 377 (Tex. & Tex. Crim. App. 1998, amended

2015). Here, video evidence showing Williams performing the types of activities

he claims to have been permanently disabled from performing by his injury at

Diamond Offshore is clearly highly relevant to the extent of the injury he claims to

have suffered and the amount of damages appropriate to compensate him for his

injuries suffered at Diamond Offshore.

      Williams argues, however, that this evidence is inadmissible under Rule 403,

which provides, in relevant part, that “[a]lthough relevant, evidence may be


1
      Effective April 1, 2015, the Texas Supreme Court adopted amendments to the
      Texas Rules of Evidence. 78 TEX. B.J. 42, 42 (Tex. 2015). The revisions to Rules
      of Evidence 401, 402, and 403 were stylistic and do not affect the substance of the
      rules. I cite the old rules, which were the versions in effect at the time of the trial
      in this case.
                                             6
excluded if its probative value is substantially outweighed by the danger of unfair

prejudice . . . or by . . . needless presentation of cumulative evidence.” TEX. R.

EVID. 403, 61 TEX. B.J. 374, 377 (Tex. & Tex. Crim. App. 1998, amended 2015)

(hereinafter, “TEX. R. EVID. 403”).     Under Rule 403, a trial court has broad

discretion to exclude evidence “if it creates undue prejudice, [if it] distracts the

jury from the main issue or issues, if it consumes an undue amount of time, or if it

unfairly surprises the proponent’s adversary.” TCA Bldg. Co. v. Nw. Res. Co., 922

S.W.2d 629, 637 (Tex. App.—Waco 1996, writ denied); Charter Med. Corp. v.

Miller, 605 S.W.2d 943, 953 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.).

      Rule 403, by its plain wording, requires that the trial court conduct a

balancing test “to determine whether or not the proffered evidence is admissible.”

TCA Bldg. Co., 922 S.W.2d at 637; John Deere Co. v. May, 773 S.W.2d 369, 373

(Tex. App.—Waco 1989, writ denied). “[T]estimony is not inadmissible on the

sole ground that it is ‘prejudicial’ because in our adversarial system, much of a

proponent’s evidence is legitimately intended to wound the opponent.” Bay Area

Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per curiam).

Evidence is inadmissible under Rule 403 only if its probative value is

“substantially outweighed by the danger of unfair prejudice.” See id. (emphasis in

original); see also PPC Transp. v. Metcalf, 254 S.W.3d 636, 643 (Tex. App.—

Tyler 2008, no pet.) (holding that trial court abused its discretion in excluding


                                         7
relevant, probative evidence when prejudicial effect of evidence did not

substantially outweigh probative value). Evidence is unfairly prejudicial if it has

an “undue tendency to suggest [a] decision on an improper basis, commonly,

though not necessarily, an emotional one.” Cook v. Sabio Oil & Gas, Inc., 972

S.W.2d 106, 111 (Tex. App.—Waco 1998, pet. denied); see also Olivarez v. Doe,

164 S.W.3d 427, 430 (Tex. App.—Tyler 2004, pet. denied) (“Evidence is unfairly

prejudicial if it would tend to persuade a jury to determine an issue on an improper

basis such as emotion or bias.”).

      The admission or exclusion of evidence “is committed to the trial court’s

sound discretion.” Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).

A trial court does not abuse its discretion simply because the appellate court would

have ruled differently under the same circumstances. See E.I. DuPont de Nemours

& Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). However, a trial court does

abuse its discretion when it acts without reference to any guiding rules or

principles. City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995).

      For the exclusion of evidence to constitute reversible error, the complaining

party must demonstrate: (1) that the trial court committed error and (2) that the

error was reasonably calculated to, and probably did, cause rendition of an

improper judgment. See Hahn v. Love, 394 S.W.3d 14, 34 (Tex. App.—Houston

[1st Dist] 2012, pet. denied). “[A] successful challenge to evidentiary rulings


                                         8
usually requires the complaining party to show that the judgment turns on the

particular evidence excluded or admitted.” Able, 35 S.W.3d at 617. Thus, an

appellate court generally does not reverse a judgment based on an erroneous ruling

on admissibility when the evidence in question is cumulative and is not controlling

on a material issue dispositive to the case. Id. In determining if the excluded

evidence probably resulted in the rendition of an improper judgment, the appellate

court reviews the entire record. Id.; Hahn, 394 S.W.3d at 35.

      B. Admission of Surveillance Videos

      Although Texas courts have admitted post-accident surveillance videos

offered by defendants to demonstrate the activities and capabilities of allegedly

injured plaintiffs in personal injury cases, no Texas case has specifically addressed

the criteria for the admissibility of surveillance videos under Rule 403. See Huston

v. United Parcel Serv., Inc., 434 S.W.3d 630, 642 (Tex. App.—Houston [1st Dist.]

2014, pet. denied) (considering post-accident surveillance video in factual

sufficiency review of damages award where appellant plaintiff did not challenge

admissibility of video on appeal); Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416,

424 (Tex. App.—Eastland 2006, no pet.) (upholding exclusion of six-second

portion of surveillance video in which plaintiff made obscene gesture where

appellant did not challenge trial court’s admission of remainder of video); Dunn v.

Bank-Tec S., 134 S.W.3d 315, 329 & n.7 (Tex. App.—Amarillo 2003, no pet.)


                                         9
(addressing whether surveillance video had been properly authenticated and stating

that appellants had waived any argument that prejudicial effect of video

substantially outweighed video’s probative value); Home Ins. Co. v. Garcia, 74

S.W.3d 52, 56–57 (Tex. App.—El Paso 2002, no pet.) (considering surveillance

video in factual sufficiency review where plaintiff did not challenge admissibility

of video).

      Federal courts and other state jurisdictions have, however, addressed the

exclusion of surveillance videos showing a personal injury plaintiff performing

tasks while also claiming damages for disability under circumstances virtually

identical to those in this case. In my view, the analysis employed by those courts

is applicable here and determinative of this case under the balancing test set out in

Rule 403 and employed by Texas courts to determine unfairly prejudicial evidence.

I would hold that the trial court improperly excluded the surveillance video under

Rule 403 and, thereby, abused its discretion, resulting in reversible error.

             1. Admissibility of surveillance videos as substantive, probative
                evidence

      Williams argues that the surveillance video was not admissible because it

was not substantive evidence, lacked impeachment value, and was more prejudicial

than probative. I disagree with all of these objections. I would follow the courts in

other jurisdictions that have weighed the prejudicial effect of a surveillance video

vis-à-vis its probative value in order to determine its admissibility under Rule 403.
                                          10
      In Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993), for

example, the Fifth Circuit Court of Appeals considered whether a post-accident

surveillance video constituted substantive evidence in addition to merely

impeachment evidence in a personal-injury case.          The Fifth Circuit defined

“substantive evidence” as evidence that “is offered to establish the truth of a matter

to be determined by the trier of fact.” Id. at 517. The plaintiff, Chiasson, claimed

that as a result of her injury she had suffered “great physical and mental pain and

anguish,” and she sought damages to “loss of enjoyment from the activities of her

normal life.” Id. The court noted that “the severity of [Chiasson’s] 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. Thus, it concluded that

evidence that “would tend to prove or disprove such losses” should be considered

“substantive” evidence. Id.

      The court also observed that Chiasson had testified at trial that she was able

to engage in her usual daily activities, but that she could not do so “for too long of

a period of time” before she started to feel pain. Id. The court doubted whether

the surveillance video at issue “discredits her testimony at all,” but it still

ultimately held that, not only did the video constitute substantive evidence, instead

of merely impeachment evidence, but that the importance of the video was

“obvious.” Id. at 517–18. The Fifth Circuit remanded the case for a new trial,


                                         11
ruling that because the video was “at the very least in part substantive,” it should

have been disclosed to Chiasson prior to trial and that the trial court abused its

discretion in admitting the video without requiring Zapata Gulf to disclose it to

Chiasson.2 Id.

      The Fifth Circuit affirmed its Chiasson reasoning in Baker v. Canadian

National/Illinois Central Railroad, 536 F.3d 357, 369 (5th Cir. 2008), in holding

that the trial court did not abuse its discretion by admitting a surveillance video the

plaintiff had objected to as unfairly prejudicial. Baker alleged that his injuries and

post-accident limitations included “the inability to count money, make change, or

be in crowds.” Id. Illinois Central offered a surveillance video that depicted Baker

“spending long periods of time in casinos.” Id. Baker argued, among other things,

that the video should be excluded as unfairly prejudicial because it “informed

jurors that he engaged in activities many people consider immoral.” Id. The Fifth

Circuit held, however, pursuant to Chiasson, that this video constituted substantive

evidence. Id. The court also noted that the issue of Baker’s “post-accident quality

of life was hotly disputed” and that Baker’s witnesses “testified in detail regarding

the allegedly severe post-accident limitations Baker face[d].”            Id.   The court

2
      Chiasson involved a local rule of the Eastern District of Louisiana which generally
      required parties to list the exhibits to be presented at trial. See Chiasson v. Zapata
      Gulf Marine Corp., 988 F.2d 513, 515 (5th Cir. 1993). The question before the
      Fifth Circuit was whether the surveillance video was solely impeachment evidence
      or whether it was also substantive evidence, which would have required it to be
      disclosed to Chiasson before trial. Id. at 514.
                                            12
ultimately concluded that the probative value of the video that contradicted Baker’s

witnesses “weighs heavily” against the prejudicial effect of “a hypothetical juror’s

moral aversion to gambling.” Id. The court held that the trial court did not abuse

its discretion by admitting the surveillance video. Id.

      In circumstances almost identical to those in this case, the Mississippi

Supreme Court likewise addressed whether the trial court abused its discretion in

excluding a post-accident surveillance video of the plaintiff, who had injured her

back, riding rollercoasters at a Six Flags amusement park. James v. Carawan, 995

So. 2d 69, 75–78 (Miss. 2008). In concluding that the trial court abused its

discretion in excluding the video, the court noted that “[a] reasonable juror could

conclude that the Six Flags video casts doubt on the severity of Carawan’s

injuries,” that “a reasonable juror might conclude that the Six Flags video has a

tendency to show that Carawan may not have been as weakened or vulnerable as

she indicated to her doctors or as her medical treatments suggest,” that “[t]he video

also could have been relevant to whether or not she truly had been unable to

work,” that the video was relevant to the question of appropriate damages for pain

and suffering, and that “this video might shed doubt upon the merits of Carawan’s

case as a whole.” Id. at 76. The court concluded,

      We already have determined that the video was relevant. Aside from
      its damaging effect to Carawan’s case, we are unable to determine
      how its admission would unfairly prejudice Carawan. A reasonable
      juror could understand that the video calls into question the severity of
                                         13
      Carawan’s injuries prior to July 29, 2003, and therefore challenged the
      necessity of at least some of her medical expenses, the validity of her
      lost wages, the extent of her pain and suffering, and the legitimacy of
      her entire claim.

Id. at 77–78. In this case, this Court, like the trial court in James, reaches exactly

the opposite conclusion on almost identical facts.

      Here, Williams sought damages for, among other things, future pain and

mental anguish, loss of future earning capacity, and future physical impairment,

which implicated “loss of enjoyment of life.” See Doctor v. Pardue, 186 S.W.3d

4, 18 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (stating that jury may

consider “loss of enjoyment of life” as factor in assessing damages for physical

impairment). To support his contention that a proper award for lost future earning

capacity equaled over $2.2 million, he presented testimony that he would be unable

to work in any capacity in the future due to his physical limitations and his chronic

pain caused by his injury while repairing elevators at Diamond Offshore for thirty

to forty-five minutes. During his testimony, Williams acknowledged that he could

perform the activities depicted in the surveillance video, although he emphasized

that he could only engage in these activities for short periods of time before he felt

pain and that he would be in pain later after engaging in these activities. Williams’

friends and family members testified to essentially the same facts.

      Admission of the surveillance video depicting Williams performing various

activities outside his house over three consecutive days in December 2012,
                                         14
including using his excavator to haul away scrap materials and repairing a vehicle,

would have allowed the jury to judge for itself the credibility of Williams’ and his

friends and family members’ testimony and to determine upon a fuller basis “the

necessity of at least some of [his] medical expenses, the validity of [his] lost

wages, the extent of [his] pain and suffering, and the legitimacy of [his] entire

claim.” See James, 995 So. 2d at 78. I would conclude that it was thus highly

probative.

      Moreover, like the Mississippi Supreme Court in James, I am unable to

determine in this case how the admission into evidence of a surveillance video that

“calls into question the severity of [Williams’] injuries . . . and therefore

challenge[s] the necessity of at least some of [his] medical expenses, the validity of

[his] lost wages, the extent of [his] pain and suffering, and the legitimacy of [his]

entire claim” would have unfairly prejudiced Williams. See id. In my view, the

surveillance video in this case legitimately calls into question the extent and

severity of Williams’ injuries, the extent to which he can still engage in activities

that he enjoys, the extent to which he can still work, the degree to which he has lost

“enjoyment of life,” and the overall legitimacy of his claim for future damages.

There is no prejudicial effect from the surveillance video other than the video’s

direct contradiction of Williams’ and his experts’ testimony that Williams cannot

perform the tasks of a mechanic due to his work-related injury.            Thus, any


                                         15
prejudice to Williams’ claim arises from the probative value of the video, not from

the tendency of the video to evoke an improper emotional or biased response from

the jury. See Olivarez, 164 S.W.3d at 430; Cook, 972 S.W.2d at 111. The video is

both maximally probative and minimally prejudicial. See James, 995 So. 2d at 78.

        These are not the only cases in which courts have performed the same

balancing test under Rule 403 that the trial court failed to perform in this case and

that consequently have found a surveillance video admissible. See, e.g., Zegarelli

v. Hughes, 814 N.E.2d 795, 798 (N.Y. 2004) (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); Sweet v. Pace Membership Warehouse, Inc., 795 A.2d 524, 528 (R.I.

2002) (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).

        Like the foregoing courts, I would conclude that admitting the surveillance

video would have had no prejudicial effect “[a]side from its damaging effect to

[Williams’] case.” James, 995 So. 2d at 78. Therefore, I would conclude that the

prejudicial effect of the video does not substantially outweigh the video’s probative

value; that the video is clearly admissible, relevant evidence under Rule 402, and

the trial court erred in excluding it. See TEX. R. EVID. 402 (“All relevant evidence


                                         16
is admissible, except as otherwise provided by Constitution, by statute, by these

rules, or by other rules prescribed pursuant to statutory authority.”); TEX. R. EVID.

403 (“Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice . . . .”). Yet neither the

trial court nor the majority performed the balancing test required by Rule 403 and

applied by these courts in other jurisdictions to determine the admissibility of

surveillance videos and by courts in this jurisdiction generally to determine the

admissibility of evidence objected to on Rule 403 grounds. See Baker, 536 F.3d at

369; Chiasson, 988 F.2d at 517–18; James, 995 So. 2d at 76; cf. Bay Area

Healthcare Grp., 239 S.W.3d at 234; PPC Transp., 254 S.W.3d at 643; TCA Bldg.

Co., 922 S.W.2d at 637.

      I agree not only with the judgment of the previous courts that have addressed

the issue of the admissibility of surveillance videos, and with the Texas courts that

have addressed the mandate of Rule 403, but also with the courts’ holding that a

trial court is required to perform a balancing test to determine whether a

surveillance video is unfairly prejudicial and therefore subject to exclusion under

Rule 403; and I would hold, like those courts, that a trial court that excludes

relevant and material evidence without performing this test and making a rational

determination that the evidence is unfairly prejudicial abuses its discretion. See,

e.g., PPC Transp., 254 S.W.3d at 643.


                                         17
         I therefore deeply disagree with the majority’s conclusion that a trial court

has absolute discretion to rule a video inadmissible without viewing it or weighing

its tendency to persuade a jury on an improper basis such as emotion or bias. See

Olivarez, 164 S.W.3d at 430; Cook, 972 S.W.2d at 111. The majority merely

assumes limitless discretion on the part of the trial court and this appellate court

itself to make their own subjective determinations as to whether clearly material

surveillance video evidence is admissible without performing the balancing test

required by Rule 403 and without even viewing the video. In my view, this is

error.

         In support of his argument, Williams cites cases from other jurisdictions

holding that a trial court did not abuse its discretion in excluding post-accident

surveillance videos. Tellingly, however, in none of these cases did the appellate

court ignore the requirements of Rule 403 in determining the admissibility of the

surveillance video.     Rather, like the preceding cases, and unlike the majority

opinion in this case, Williams’ cases all demonstrate that the appellate court did

perform the balancing test required by Rule 403 to determine whether the trial

court abused its discretion in applying that rule but excluded the surveillance video

for other reasons, such as the unreliability of the evidence or its failure to show

what the defendant claimed it showed.




                                           18
      For example, in one case from Illinois, the appellate court focused on the

fact that the surveillance videotapes were edited and only showed the plaintiff

outside, thus, in its view, “giv[ing] the impression that [the] plaintiff’s activity is

constant,” and the fact that the plaintiff “can sustain labor-intensive activities over

a period of time without rest or without experiencing pain,” and it concluded that

the danger of unfair prejudice outweighed the probative value of the surveillance

videos. See Carroll v. Preston Trucking Co., 812 N.E.2d 431, 435–36 (Ill. App.

Ct. 2004); see also Donnellan v. First Student, Inc., 891 N.E.2d 463, 478 (Ill. App.

Ct. 2008) (relying on Carroll to uphold exclusion of surveillance video and stating,

“Despite defendant’s contention that [the videographer] testified that the video was

not edited to demonstrate only the period plaintiff was working and that he filmed

every moment that he could, the video leaves the impression that plaintiff was

working for extended periods of time”).

      Williams also cites Quinn v. Wal-Mart Stores, Inc., 774 So. 2d 1093 (La. Ct.

App. 2000), in which the Louisiana appellate court concluded that the trial court

had properly excluded a post-accident surveillance video when the injured plaintiff

testified that she could perform the activities depicted in the video and the video

did “not fairly indicate whether [the plaintiff] did experience pain after engaging in

these activities.” Id. at 1098. The court stated that “showing these tapes to the jury

without context or explanation” could “create a prejudicial impression on the jury


                                          19
that outweighs any probative value they may have to impeach [the plaintiff’s]

testimony.” Id.

          Likewise, in this case, Williams contends that the prejudicial effect of the

“heavily edited” video substantially outweighs any probative value, citing Carroll,

Donnellan, and Quinn as support for this contention. He argues that the video

“paints a misleading picture of [his] condition” by not giving “fair representation

of the fact that Williams could do [the activities depicted in the video] only for

short stretches, of the pain medication he needed, or of the suffering he endured

later.”

          Williams’ concerns regarding unfair prejudice, however, are misplaced. His

contention that the surveillance video, which contains footage from multiple days

edited together onto one video, gives the impression that he was engaged in

continual activity could easily have been dispelled by cross-examining the

videographer, if he or she was the sponsoring witness, regarding the length of time

the videographer filmed the plaintiff, where edits or cuts in the video were made,

and whether and for how long the plaintiff engaged in activity outside the view of

the camera.       Indeed, Diamond Offshore had its videographer, Don Soutillo,

available to testify, and, had the trial court admitted the surveillance video,

Williams would have had the opportunity to cross-examine Soutillo concerning the

circumstances under which the video was made. Moreover, the video plainly


                                           20
showed, via time and date-stamps, the exact period of time over which Williams

was shown performing the activities he claims he could not perform without pain

and difficulty. Williams himself could have addressed the issues of whether he

needed pain medication after engaging in the activities depicted in the surveillance

video and whether he suffered pain as a result of participating in the activities

depicted. Thus, any potential prejudicial effect from showing an edited video

could have been minimized.

      It is especially hard to see under these circumstances, including the potential

for cross-examination, how Williams would have been unfairly prejudiced if the

jury had been allowed to see the surveillance video. And the mere fact that the

video was prejudicial to Williams’ account of his permanent disability was not, by

itself, grounds for exclusion, for, as the Texas Supreme Court stated in Bay Area

Healthcare Group, “[T]estimony is not inadmissible on the sole ground that it is

‘prejudicial’ because in our adversarial system, much of a proponent’s evidence is

legitimately intended to wound the opponent.” 239 S.W.3d at 234.

      I would adopt the Fifth Circuit’s reasoning in Chiasson and Baker and the

Mississippi Supreme Court’s reasoning in James, as well as the reasoning of the

Texas courts that have construed Rule 403, and I would hold that the post-accident

surveillance video proffered by Diamond Offshore constitutes substantive evidence

relevant to the ultimate issues in this case—the amount of damages to which


                                         21
Williams is entitled—and that its probative value substantially outweighed any

prejudicial effect it might have had on the evidence in this case, and certainly any

unfair prejudicial effect. See Baker, 536 F.3d at 369; Chiasson, 988 F.2d at 517

(holding that post-accident surveillance video, in addition to having impeachment

value, is also “at the very least in part substantive” evidence); James, 995 So. 2d at

77; see also Bay Area Healthcare Grp., 239 S.W.3d at 234; PPC Transp., 254

S.W.3d at 643. Thus, it was error to exclude it.

      The error was compounded by the trial court’s failure even to view the

video, 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; TCA 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 of 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 claims.” See TEX. R. EVID. 901(a), 61 TEX. B.J. 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.”). In 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 an 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 (1) 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,” thus “effectively supply[ing] the predicate

for the video’s admission by revealing that its content was an accurate 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. EVID. 901(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. EVID. 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


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      [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 K.Y., 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 he

could perform activities for a short period of time, but that it hurt him to do so, and

a video recording of Williams 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



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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 turn to whether the

exclusion of the surveillance video constituted reversible error. See Hahn, 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

pain 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 long-time offshore rig worker who had a history of degenerative changes in his


                                          26
back, 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, I would hold

that the trial court clearly abused its discretion in excluding the surveillance video

from evidence.


                                          27
         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 to, 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 Offshore’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.




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