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admitting surveillance video evidence that undermined the plaintiff's assertions of physical pain and disability
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Civil Action No: 99-2159 Section: "R" (3)
June 12, 2000
ORDER AND REASONS
Before the Court is defendant's motion in limine to exclude from trial evidence of plaintiff's May 20, 1999 lumbar surgery. Alternatively, defendant seeks an adverse instruction to the jury regarding the destruction of the physical evidence — the condition of plaintiff's lower back. For the following reasons, defendant's motion is denied.
I. Background
This case arises out of two alleged accidents that occurred while James Ward Nenges worked as a floorhand on the drill floor aboard Cliffs Drilling Rig No. 180 on May 5, 1998. Plaintiff contends that he sustained his first injury when he bent over to remove a cap from a casing and was struck in the lower back by another casing that was being moved by an air hoist. The second incident allegedly occurred later the same day when plaintiff was struck in the back of his neck by a piece of rust that fell from the stabbing board. As a result of these incidents, plaintiff contends that he experienced pain to both the cervical and lumbar regions.
Eighteen days later, on May 23, 1998, plaintiff went to the emergency room at Lake Charles Memorial Hospital, where he underwent an examination and x-rays. Five days later, plaintiff was examined by Dr. Michael Duval, who prescribed physical therapy. On June 14, 1998, plaintiff went to Forrest General Hospital and was examined by Dr. David W. Bomboy. While under Dr. Bomboy's care, plaintiff underwent epidural steroid injections and physical therapy. Subsequently, plaintiff was referred to Dr. Bert Bratton, a neurosurgeon, who performed a decompressive laminotomy/foraminotomy at L-4-5 (lumbar surgery) on May 20, 1999.
Defendant seeks to exclude evidence of this surgery on the grounds that, under the spoilation of evidence doctrine, plaintiff's failure to advise Cliffs Drilling Company of his election to have surgery resulted in the destruction of evidence. Alternatively, defendant seeks an instruction to the jury regarding the destruction of the physical evidence — the condition of plaintiff's lower back. Plaintiff opposes this motion, responding that Cliffs Drilling Company was aware of plaintiff's condition and medical treatment long before the May 1999 surgery. Moreover, plaintiff was under no duty to refrain from surgery prior to undergoing an independent medical examination. Plaintiff also contends that continuing medical treatment following denial of medical treatment by an employer does not constitute intentional destruction of evidence.
II. Discussion
The spoilation of evidence doctrine concerns the intentional destruction of relevant evidence. See Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995); Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994). In the event relevant evidence is spoiled ( i.e., intentionally destroyed), the trial court may exercise its discretion to impose sanctions on the responsible party. See Vodusek, 71 F.3d at 156; Schmid, 13 F.3d at 78. The seriousness of the sanctions that a court may impose depends on the consideration of:
(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.Schmid, 13 F.3d at 79 (citations omitted). Consistent with this measure of sanctions, a court may exclude the spoiled evidence or allow the jury to infer that the party spoiled the evidence because the evidence was unfavorable to that party's case. Exclusion of spoiled evidence, however, is a "drastic sanction" that courts generally try to avoid because exclusion would often unnecessarily eviscerate the plaintiff's case, especially when a lesser sanction would sufficiently even the playing field. See, e.g., Schmid, 13 F.3d at 79 ("While we do not doubt the inherent authority of a district court to impose such a drastic sanction in an appropriate case, we conclude that this was not such a case."); American Gulf VII, Inc. v. Otto Candies, Inc., 1996 WL 520895, at *2 (E.D. La. 1996) (" [T]o strike the entirety of [the testimony regarding the destroyed evidence] goes too far and would eviscerate plaintiff's case.")
The preferred alternative is "the well-established and longstanding principle of law that a party's intentional destruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction." Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998). See, e.g., Vodusek, 71 F.3d at 155; Schmid, 13 F.3d at 78; Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993); Nation-Wide Check Corp. v. Forest Hills Distribs., 692 F.2d 214, 217-18 (1st Cir. 1982); In re Hopson Marine Transp., Inc., 168 F.R.D. 560, 567 (E.D. La. 1996). This adverse inference rule "derives from the common sense notion that a party's destruction of evidence which it has reason to believe may be used against it in litigation suggests that the evidence was harmful to the party responsible for its destruction." Kronisch, 150 F.3d at 126. Accordingly, to restore the prejudiced party, an adverse inference "plac[es] the risk of an erroneous judgment on the party that wrongfully created the risk." Id. (quoting Nation-Wide Check, 692 F.2d at 218).
Before a court may exclude spoiled evidence or provide for an adverse inference to arise from the intentional destruction of evidence, "the party having control over the evidence must have had an obligation to preserve it at the time it was destroyed." Id. Such a duty "arises when the party has notice that the evidence is relevant to litigation." Id. Once a court concludes that a party was obliged to preserve the evidence, it must then consider whether the evidence was intentionally destroyed and the likely contents of that evidence. See id. at 127. See also Caparotta v. Entergy Corp., 168 F.3d 754, 756 (5th Cir. 1999) (adverse inference "predicated on bad conduct"); Vodusek, 71 F.3d at 156 (requiring intentional and willful conduct); Anderson v. Production Management Corp., 2000 WL 492095, at *4 (E.D. La. Apr. 25, 2000) (no adverse inference absent a showing of bad conduct); In re Hopson Marine Transp., Inc., 168 F.R.D. at 567 (requiring wrongful denial).
Plaintiff's back surgery occurred before there was any litigation between the parties. However, when plaintiff agreed to undergo lumbar surgery, he arguably knew that the condition of his lower back would be pertinent to this litigation. Plaintiff was represented by counsel when he underwent the surgery, and his counsel paid for the surgery. However, even if plaintiff had a. duty to notify defendant of the surgery so that he could be examined by an independent medical examiner, breach of this duty does not amount to spoilation of evidence. Defendant has not cited a single case that supports its position that the spoilation doctrine applies on these facts.
Further, plaintiff did not intentionally destroy evidence. Plaintiff gave defendant full access to his medical records, again before the surgery, and defendant therefore had ample opportunity to investigate plaintiff's condition and to require an IME before plaintiff underwent surgery. That defendant chose not to do so negates the notion that plaintiff intentionally destroyed evidence when he underwent surgery. The Court finds, therefore, that there is insufficient evidence that the surgery was a willful destruction of the evidence.
C. Unfair Prejudice and Cumulative Evidence
Notwithstanding the foregoing analysis, the Court is mindful of Federal Rule of Evidence 403's admonition to exclude evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. Exclusion of relevant evidence pursuant to Rule 403, however, "is an extraordinary measure that should be used sparingly." Caparotta, 168 F.3d at 758 (quoting Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996, 1004 (5th Cir. 1998)). While defendant will suffer some prejudice due to the surgery, the Court finds that the prejudice will not be unfair because defendant has access to plaintiff's medical records from the examinations undertaken May 23 and May 28, 1998. Moreover, the Court finds that the evidence of the lumbar surgery is relevant and admissible evidence. See Fed.R.Evid. 401, 402.
III. Conclusion
For the foregoing reasons, defendant's motion in limine is denied.
ORDER AND REASONS
Before the Court is plaintiff's motion in limine to exclude from trial, in their entirety, defendant's video surveillance tapes of plaintiff. For the following reasons, plaintiff's motion is denied, except to the extent the video filmed on May 4, 2000 is used for impeachment purposes.
I. Background
This case arises out of two alleged accidents that occurred while James Ward Menges worked as a floorhand on the drill floor aboard Cliffs Drilling Rig No. 180. Plaintiff contends that he sustained his first injury when he bent over to remove a cap from a casing and was struck in the lower back by another casing that was being moved by an air hoist. The second incident allegedly occurred later the same day when plaintiff was struck in the back of his neck by a piece of rust that fell from the stabbing board. Plaintiff contends that, as a result of these incidents, he experienced pain both to the cervical and lumbar regions, which ultimately required him to undergo surgery. He also contends that his injuries have resulted in chronic pain and restriction in his motion.
As a result of plaintiff's allegations, Cliffs Drilling Company put plaintiff under video surveillance on June 10, 1998, May 4, 2000, and May 5, 2000. Plaintiff seeks to exclude the resulting surveillance tapes, in their entirety, on the grounds that the surveillance videos are not impeachment material and that their admission would be prejudicial to plaintiff and constitute cumulative evidence of plaintiff's deposition testimony. Defendant opposes this motion, responding that the surveillance tapes not only contradict plaintiff's statements of his ability to perform certain activities, but also constitute substantive evidence.
II. Discussion
In the seminal case Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, reh'g denied opin. clarified, 3 F.3d 123 (5th Cir. 1993), the Fifth Circuit set forth what it considers to be substantive and impeachment evidence. Interestingly, the legal predicates in Chiasson are the same as the case now before this Court. In Chiasson, the plaintiff sued her employer under the Jones Act for personal injuries resulting from negligence and unseaworthiness of the vessel on which she served, and among the issues before the court was the characterization of certain video surveillance tapes of the plaintiff.
A. Substantive Evidence
Addressing substantive evidence first, the Fifth Circuit held that "substantive evidence is that which is offered to establish the truth of a matter to be determined by the trier of fact." Chiasson, 988 F.2d at 517. The court then noted that "the severity of [a plaintiff's] pain and the extent to which [a plaintiff] has lost enjoyment of normal activity are among the key issues a jury must decide in calculating [a plaintiff's] damages. Evidence which would tend to prove or disprove such losses must be considered `substantive'" Id. Accord Crist v. Goody, 507 P.2d 478 (Colo. 1972); Zimmerman v. Superior Court, 402 P.2d 212 (Ariz. 1965) (en banc). Accordingly, the court found the video surveillance tape to be substantive evidence. See Chiasson, 988 F.2d at 517. See also Innovative Therapy Products Inc. v. Roe, 1998 WL 293995, at *2 (E.D. La. June 4, 1998) (finding taped statements appeared to be substantive); Alfortish v. Shoney's Inc., 1994 WL 449415, at *2 (E.D. La. Aug. 16, 1994) (finding videotapes to be substantive).
Here, plaintiff's assertions of physical pain and disability also are key issues for the jury to decide in calculating his damages. As in Chiasson, the surveillance tapes bear directly on the severity of plaintiff's pain and the limitations on his mobility. Plaintiff does not contend that the tapes are inadmissible as irrelevant, unauthentic, or hearsay. Rather, plaintiff argues that they are not proper impeachment evidence and are simply cumulative. The Court holds that the tapes are relevant, substantive evidence, and, therefore, they will not be excluded.
B. Impeachment
Defendant's alternative argument is that the tapes are admissible as impeachment evidence. The Chiasson court addressed the issue of impeachment evidence. The court held that "[i]mpeachment evidence . . . is that which is offered to "discredit a witness . . . to reduce the effectiveness of his testimony by bringing forth evidence which explains why the jury should not put faith in him or his testimony.'" Chiasson, 988 F.2d at 517 (quoting John P. Frank, Pretrial Conferences and Discovery — Disclosure or Surprise?, 1965 Ins. Law J. 661, 664 (1965)). See also Richardson v. Rodrigue, 1996 WL 476603, at *5 (E.D. La. Aug. 22, 1996), amended by 1996 WL 535084 (E.D. La. Sept. 19, 1996).
After reviewing the videotapes as well as plaintiff's deposition testimony, the Court finds that the June 10, 1998 and May 5, 2000 videos do impeach the plaintiff's testimony, despite plaintiff's assertions that he "clearly testified to the events in which he is depicted on the surveillance tapes." (Mem. Supp. Pl.'s Mot. Limine, at 2.) The first video, filmed on June 10, 1998, shows plaintiff stepping easily up from the front bumper of his truck to squat on the engine under the hood. This imagery contradicts plaintiff's testimony that his restricted motion would have made it difficult for him to get under his truck's hood. (Pl.'s Dep. dated Nov. 19, 1999, at 221-22.) The third video, filmed on May 5, 2000, shows plaintiff squatting and bending, frequently and easily. This imagery contradicts plaintiff's testimony that he has a problem bending and that he was only capable of "slow movement" after a day of exertion. (Pl.'s Dep. dated May 16, 2000, at 38, 40.) Therefore, the Court holds that the video taken on June 10, 1998 and on May 5, 2000 may be used for the purposes of impeachment.
While the second video, filmed on May 4, 2000, shows plaintiff engaged in acts of strength, none of the images directly contradicts plaintiff's deposition testimony. Plaintiff did not deny that he was able to engage in physical activities, and he admitted engaging in setting up for the rodeo, including operating a forklift and sliding panels. That he downplayed the amount of exertion involved does not make the tapes impeaching. Accordingly, the Court holds that the video taken May 4, 2000, may not be used for the purposes of impeachment.
C. Unfair Prejudice and Cumulative Evidence
Of course, independent of a determination of the substantive or impeachment nature of the tapes, the Court is mindful of Rule 403's admonition to exclude evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. The court finds, however, that the video surveillance is not cumulative or unfairly prejudicial and that it is admissible relevant evidence. See Fed.R.Evid. 401, 402.
III. Conclusion
For the foregoing reasons, plaintiff's motion in limine is denied, except to the extent the defendant seeks to use the video filmed on May 4, 2000 as impeachment evidence.