USDOL/OALJ Library -- The Use of Surveillance Videos at the Formal Hearing From the Judge's Perspective

The use of motion pictures is becoming fairly routine in back injury cases. Generally, such pictures are admissible if relevant and if they accurately portray claimant's activities. Motion pictures can be used as impeaching evidence of the nature and extent of claimant's disability. However, if the activity depicted is not sufficient to constitute impeachment, such evidence should be objected to and the argument made that it should not be admitted or, if admitted, should be disregarded by the fact-finder. Claimant's counsel should argue that such isolated pictures show only movement, not the discomfort or pain resulting therefrom, and that the pictures do not show claimant's unlimited activities prior to the injury in question.

(1) WE LIVE IN A VIDEO-VISUAL AGE

Some say that the attention span of the average person is about twenty minutes or so and, if such is the case, a lengthy trial might create problems of concentration for some jurors, and a bored or disinterested juror is a risk an attorney just cannot afford. Gone are the days when we sat around a console radio listening to world and national news or to the latest episode of our favorite serials. Our society has drastically changed and now, courtesy of satellite transmissions and cable television, we are in world-wide communication, instantly, and events are televised all over the world as they are happening. Just a few years ago television brought us Operation Desert Shield and Operation Desert Storm as the events unfolded. Similarly, the marines who recently stormed ashore in Somalia were greeted not by hostile soldiers, but by the spotlights and video cameras of the television networks.

Let's face it: Television and Films have fundamentally re-shaped our society and it is my experience that visually-conditioned jurors can absorb information as fast as the lawyers can convey it.

(2) DEMONSTRATIVE EVIDENCE

A videotaped presentation, like all good demonstrative evidence, can highlight important facets of a tort case, for instance, improve juror comprehension and, sometimes, even elicit sympathy. This is most effectively done in a fifteen or twenty minute videotape demonstrating the impact of an injury upon the victim's life--this is the so-called day-in-the-life of the injured plaintiff.

It is well to keep in mind that attorneys have been utilizing photographs as evidence in United States courts since at least 1860. See, e.g., Luco v. United States , 64 U.S. (23 How.)515, 541 (1860). Such use has increased dramatically with the advent of videotapes in the late 1950s and the future looks just as rosy with the appearance of the hand-held, compact and portable video cameras, without bulky battery packs.

Videotaped evidence today is being used for many purposes as part of the litigation process and such use is really limited only by the lawyer's imagination and its admissibility. My talk to you today will deal with only one such use-- THE USE OF SURVEILLANCE FILMS AT THE FORMAL HEARING, FROM THE JUDGE'S PERSPECTIVE .

(3) INCREASED USE OF VIDEOTAPE

The use of surveillance films to dispute the nature and extent of the claimant's disability initially requires that the judge balance the interests of the claimant VIS-A-VIS those of the respondent and this balancing involves a determination of the reliability and probative value of the proffered evidence as opposed to the due process rights of the subject and the fair play rules of our adversarial system. Thus, the judge must be satisfied as to the authenticity of the videotape and fair play includes the right of cross-examination, for instance, of the private investigator whose surveillance report may contain ex parte statements made out of court by claimant's neighbors as to his/her daily activities.

Videotaped evidence is being used more frequently because of its unique advantages such as instant replay, immediate results without processing delays, tape reusability and the ability to monitor both picture and sound as they are recorded. Videotape recorders are also much easier to use and are less expensive than motion picture cameras.

Surveillance films taken without the knowledge of the subject can have a dramatic impact in the courtroom, perhaps even completely defeating the claim. In any case involving the introduction of surveillance evidence, the court must be satisfied as to its reliability because videotapes present the same problems as motion pictures insofar as the possibility of distortion, deception or misrepresentation is concerned.

(4) SOME PROBLEMS WITH VISUAL IMAGES

Surveillance films can serve a uniquely compelling function in a personal injury trial. They are designed to undermine, in a dramatic and potentially sensational manner, a plaintiff's claim that he or she was seriously injured. At the same time, however, visual images are easily manipulated and, as a result of artful or skillful editing or crafty camera work, can give a false depiction of a plaintiff's condition. Deceptive lighting may mislead a viewer and distances may be minimized or exaggerated. Focal lengths and camera angles do make a difference and action may be speeded up or slowed down. The editing and splicing of films may change the chronology of events. An emergency situation may be made to appear commonplace. That which occurred once, can be portrayed as an event which recurs frequently. Thus, that which purports to be a means to reach the truth may be distorted, misleading and false. Snead v. American Export-Isbrandtsen Lines , 59 F.R.D. 148 150 (E.D. Pa. 1973).

As surveillance films usually are of shore duration and even if offered only as impeachment, there may be a reasonable explanation for that physical activity captured on film, such as a change in medication, encouragement by the doctor to get out and exercise or just to learn how to live with the pain. My experience is that such films, because of their short duration, are far less incriminating by themselves than the forthright testimony of a private investigator describing successive days of a claimant routinely engaging in physical activities that the claimant denies he or she can perform. See, e.g., Tamburello v. Department of Labor and Industries , 14 Wash. App. 827, 545 P.2d 570 (1976).

Cases over which I have presided have included very effective surveillance films and other films whose impeachment value was questionable. I am really not interest in reviewing surveillance films just like David Barron at The Times-Picayune . Nor am I interested in the professional technique of the camera person. The entire production need not be directed by George Lucas and while the film need not have the dramatic effect of Lethal Weapon 3 , a surveillance film should contain more footage than claimant simply walking out of his house at noon time, for instance, slowly and gingerly getting into an automobile and being driven away. Where is he going, I might ask? The film should show more than the claimant picking up a garden hose and standing there for a few moments watering his lawn. Such limited activities are not those of a stevedore down on the waterfront on Tchoupitoulas Street or a worker who has to lift fifty sacks of coffee beans or rice on a sustained basis for eight hours daily and for forth hours each week.

Effective surveillance films are those which portray claimant, routinely and on successive days, leaving his house at 6:00 a.m., driving his own vehicle to a place of sub rosa employment and then proceeding to work for the next seven or eight hours loading a moving van with heavy furniture and appliances or engaging in other physically-demanding activities. Films showing this pattern of activity over a sustained period of time reduce claimant to a malingerer and serve to refute an exaggerated or fraudulent disability claim.

I have highlighted surveillance films at the opposite ends of the spectrum to make the point that such films, if prepared properly and if the claimant "cooperates," so to speak, can be an important factor in impeaching claimant's credibility. I have seen films at various levels of the spectrum and my experience is that cases at the extreme ends of the spectrum either are withdrawn or result in settlements. Most surveillance films offered at the formal hearing are usually in the gray area, containing something for each side. My own personal opinion, and Dean Ebel made it clear that this topic was to be addressed from my perspective, is that the use of a surveillance film should only be employed if it graphically and dramatically demonstrates that claimant's credibility can be impeached on he extent of his disability and his residual work capacity. Such use, in a word, should be judicious.

(5) DEVELOPMENT OF SURVEILLANCE EVIDENCE/SUGGESTED GUIDELINES

I have made these general introductory remarks to set the stage for a discussion of the key question as to whether or not video surveillance is necessary or advisable in a particular compensation claim. Do not make the decision simply because video cameras are so easy to operate. The use of a surveillance film at the formal hearing will depend initially on the local custom or court rules as to its admissibility and discoverability and whether it will be used substantively or for impeachment purposes only.

Select your video photographer with care, just as you would any other expert witness, because he or she will likely be a witness at the trial. Give him a script and/or instructions as to what type of surveillance is requested, i.e. , random shots as opposed to a continuous stakeout at various locations. Any written report should not contains "editorial" comments, derogatory remarks or anything which might be construed as extraneous or subjective comments. Just like the detective requires on DRAGNET , THE REPORT SHOULD CONTAIN JUST THE FACTS as to who is the subject and when, where and what happened.

The photographer, as an agent of the attorney, should not talk to the subject as such contact would present ethical problems, especially where the subject is represented by counsel. The photographer or private investigator should not falsely yell " FIRE " in a corridor to see if the injured plaintiff will get out of his wheelchair and start running. This might result in litigation for obtaining evidence by fraudulent or dishonest means. See Restatement (Second) of Torts , §652 B (1976).

In a word, development your surveillance plan according to the law as it is likely to be applied to you in the forum in which the claim is brought. An overzealous photographer may result in a tort action for invasion of privacy, harassment, intentional infliction of emotional distress and trespass.

Reasonable video surveillance is a legitimate and lawful method to obtain evidence to defend a lawsuit or impeach a witness and videotape surveillance is not per se a wrongful invasion of a person's privacy. Ellenberg v. Pinkerton's, Inc. , 130 Ga. App. 254, 202 S.E.2d 701 (1973).

However, the use of surveillance to harass or frighten is wrongful and a surveillance conducted without reasonable restrictions on the time, place and duration of the investigation may result in tort liability. See, e.g., Uruh v. Truck Insurance Exchange , 102 Cal. Rptr. 815, 498 P.2d 1063 (Cal. Sup. Ct. 1972); Pinkerton National Detective Agency, Inc. v. Stevens , 108 Ga. App. 159, 132 S.E.2d 119 (1963).

One of my favorite movies came out at about the time I started my legal career. In typical Hollywood style, the subject matter of my talk was exaggerated and sensationalized, the extent of which I shall leave to each of you to conclude. My movie book describes the film as follows: Biting comedy about a television cameraman injured during a football game and a "shyster" lawyer who exaggerates damages for insurance purposes. While the script was not written by William Shakespeare, the movie does not portray attorneys in a positive light. The insurance company, suspecting a phony claim, instituted the so-called GEMINI-SURVEILLANCE PLAN which involved two investigators armed with a movie camera and around-the-clock surveillance of the plaintiff.

As might be expected, the camera does record Jack Lemmon as he gets out of his wheelchair to be reconciled with his estranged wife who had apparently decided to return to the family hearth after Walter Matthau , the attorney, had announced that he was filing suit against the Cleveland Browns and the National Football League for the then-exorbitant amount of ,000,000.00. The point of this story, you might ask, is that after the caper was disclosed, the attorney announced that he was filing suit for the invasion of his client's privacy and the emotional distress caused by the surveillance. The movie in question is THE FORTUNE COOKIE . Art sometimes imitates reality.

B. DISCOVERY

(1) BALANCING OF INTERESTS

Now let us look at the typical compensation claim which has been filed in the appropriate forum. The parties are in pretrial discovery and the judge has issued the standard order directing, inter alia , that the parties exchange witness lists and exhibits by a certain date. Claimant suspects the existence of surveillance films and his attorney files the usual interrogatories and requests their production. Respondent refuses not only to answer the pertinent requests but also refuses to even acknowledge the existence of such evidence.

Defense counsel, in resisting pretrial discovery of such films, maintain that only by permitting a defendant to "spring" these films on the plaintiff at trial will the truth-seeking function of cross-examination be safeguarded. Defense counsel also resist discovery on he grounds plaintiffs have no basis to claim undue hardship as a result of being denied access to any surveillance evidence that may exist because they can produce their own photographic evidence, or plaintiffs cannot claim surprise at the trial because they have personal knowledge of what the injured plaintiffs have been capable of doing since the date of the accident and, the argument most commonly used, surveillance videotapes taken of the plaintiff constituted counsel's work product and, as such, are entitled to an absolute immunity from pretrial discovery.

Plaintiff's counsel, on the other hand, argue that because films are so easily manipulated, they must be disclosed before trial in order to permit counsel to verify the accuracy of the images portrayed. In fact, one claimant wanted pretrial disclosure of the contents of the surveillance film so that he could tailor his testimony to conform to the videotape. Wainwright v. Dawn Services, Inc. , LEXIS 13652 (E.D. La. 1991).

Our adversarial system requires full disclosure of all evidence which is material and necessary in the prosecution or defense of an action regardless of the burden of proof. Thus, states have adopted broad and liberal discovery procedures to encourage fair and effective resolution of disputes and courts will usually require disclosure of any and all facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.

(2) GRANTED BASED UPON SUBSTANTIAL NEED, UNDUE HARDSHIP OR UNFAIR PREJUDICE

Even with liberal discover procedures most states provide for three categories of protected materials: (1) privileged matter enjoys absolute immunity from discovery; (2) an attorney's work product also enjoys such immunity; and (3) materials otherwise discoverable but prepared in anticipation of litigation enjoy conditional immunity. Such materials are subject to disclosure only upon a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means or that denial of discovery would result in unfair prejudice.

The majority rule is that a party is entitled not only to know before trial whether he or she has been subjected to photographic or video surveillance but also to have pre-trial access to the surveillance materials as well. This majority view is expressed in Cabral v. Arruda , 556 A.2d (R.I. 1989), which allowed the discovery of surveillance materials only after the deposition of the claimant to safeguard the integrity of the evidence.

Most courts granting discovery usually hold that the requisite substantial need was established by the claimant's need to examine and perhaps test the films as to authenticity, and that the hardship in obtaining a substantial equivalent is manifest.

Often the proferred videotape is objected to on the grounds that it is prejudicial but, by definition, any effective videotaped evidence is going to be prejudicial to the party against whom it is offered. Moreover, the fact that a videotape is prejudicial does not, per se , render it inadmissible because Rule 403 (FRE) permits exclusion of otherwise relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice , confusion of the issues, or misleading the jury, etc. Thus, the prejudice must be " unfair " and cause the judge or fact-finder to base a decision on an improper factor. Dollar v. Long Mfg. N.C. , 561 F.2d 613 (5th Cir. 1977), cert. denied , 435 U.S. 996 (1978).

These courts have cited a variety of reasons for allowing such discovery. The most important seems to be a concern that the photographs and films may have been tampered with, and allowing a plaintiff to view the surveillance tapes during discovery would allow plaintiff the opportunity to combat any distortions and falsehoods. Snead v. American Export Isbrandtsen Lines, Inc. , 59 F.R.D. 148 (E.D. Pa. 1973). Additionally, the courts have noted that the purpose of discovery is to avoid secrets, surprises and trial by ambush. Crist v. Goody , 507 P.2d 478, 480 (Colo. App. 1972)

Furthermore, allowing discovery of surveillance material in the possession of one of the parties permits those involved to evaluate all of the evidence which will comprise the record, thereby facilitating more meaningful and better informed settlement discussions. The parties, with knowledge of such evidence, may be encouraged to settle or drop a suit, thus keeping the dispute out of court entirely. Thus, broad discovery procedures provide for better trial preparation. Martin v. Long Island Railroad Company , 63 F.R.D. 53 (E.D. N.Y. 2974).

Where the court has granted pretrial discovery of surveillance films and where the defendent subsequently decides, for whatever reason, not to use such films at trial, plaintiff, knowing the contents of those films, cannot turn this strategy to his or her advantage and comment on this decision to the jury. Such comments are highly prejudicial and were not sanctioned upon appellate review in Di Michel v. South Buffalo Railway Company , 80 N.Y.2d 184 (Ct. App. N.Y. 1992).

In this view, timely and full disclosure of all relevant, material and necessary evidence perpetuates the sporting theory of justice because justice is better served, the trial of cases expedited and the possibilities of perjury concomitantly reduced.

The majority view is that surveillance evidence does not constitute any attorney's work product because this privilege is narrowly construed to include only those materials prepared by the attorney, acting as an attorney and containing his or her trial strategy. Marte v. W.O. Hickock Mfg Co. , 552 N.W.S.2d 297, 154 A.D.2d 173 (1990).

(3) RULE 26 OF FEDERAL RULES OF CIVIL PROCEDURE

Most state discovery procedures are patterned after the Federal Rules of Civil Procedure and Rule 26(b)(I) provides that all information that is relevant to a pending controversy should be disclosed unless it is privileged or enjoys immunity. The majority of Federal cases construing the scope of immunity for trial preparation materials hold that surveillance evidence must be disclosed. See, e.g., Forbes v. Hawaiian Tug and Barge Corp. , 125 F.R.D. 505 (D. Haw. 1989); Daniels v. National Railroad Passenger Corp. , 110 F.R.D. 160 (S.D. N.Y. 1986); Martin v. Long Island Railroad Company , 63 F.R.D. 53 (E.D. N.Y. 1974); but see contr. Bogarty v. Montour Railroad Company , 177 F.Supp. 269 (W.D. Pa. 1959); Hickel v. Abousy , 41 F.R.D. 152 (D. Md. 1966).

(4) DENIAL

(a) ATTORNEY WORK-PRODUCT/ANTICIPATION OF LITIGATION

Now let us look at those courts which deny pretrial discovery of surveillance films. Generally, local rules in U.S. District Courts require a full and complete disclosure of evidence at the pre-trial conference. The only exceptions are matters which the court holds were not discoverable at the time of the conference, impeachment matter and privileged matter. However, according to one court, "to require the defendant to answer these interrogatories [as to the existence of surveillance films] would subvert the spirit of our local rule which protects impeaching matter from disclosure. The plaintiff, despite the liberality of the Federal Rules of Civil Procedure, still has the burden of proof. The least he should be required to do is to state whether he can carry on work. He should state this honestly and not make such answer dependent on whether the defendant has or has not observed his activities. . . . A second question is whether [the Employer] may be compelled to disclose the existence of surveillance evidence regarding [the plaintiff] even if it need not produce the evidence. The only practical way to preserve the prophylactic effect of impeachment evidence, however, is to keep its existence as well as its contents unknown." Thus, the court held that the defendant need not disclose the requested material so long as its use was limited to impeachment, but would be required to disclose it by the pretrial conference if it intended to use the material as substantive evidence." MacIvor v. Southern Pacific Transp. Co. , LEXIS 5495, (D.C. Or. 1988).

The work-product doctrine protects the enterprise--either analytical or entrepreneurial--the mental impressions, conclusions, opinions or legal theories of an attorney concerning the litigation. Hickman v. Taylor , 329 U.S. 495 91947); State ex rel. Dudek v. Circuit Court of Milwaukee County , 34 Wis.2d 559, 590-91, 98, 150 N.W.2d 387, 404-05, 408-09 (1967).

As the work-produce privilege has its origins in common law, good cause sufficient to warrant an exception thereto must be based upon necessity, prejudice, injustice or hardship, and the party moving for discovery of material classified as work-product is unavailable from other sources and that a denial of discovery would prejudice the movant's preparation for trial.

(b) SURPRISE VALUE ENHANCES TESTIMONY

Thus, courts which deny partial discovery of surveillance material do so largely on the basis that disclosure of the fact of surveillance and a description of the materials recorded would impinge on the core of the work-product privilege by evidencing the lawyer's strategic decisions.

Plaintiff's concern that surveillance material exists might very well advance, rather than impede, the quest for truth because in the words of H.L. Mencken, the noted author and commentator, " Conscience is the inner voice which warns us that someone may be looking ." Ranft v. Lyons , 163 Wis.2d 282, 471 N.W.2d 254 (Wis. App. 1991).

Or, as another court stated, the mere possibility that surveillance videos may exist "will often cause the most blatant liar to consider carefully the testimony he plans to give under oath." Snead v. American Export-Isbrandtsen Lines, Inc. , 59 F.R.D. 148 (E.D. Pa. 1973).

However, even courts which deny pretrial discovery of surveillance material require that the subject of the surveillance be given ample opportunity to challenge the materials outside of the jury's presence and prior to any decision on their admissibility, once the respondent attempts to use surveillance at the trial.

C. ADMISSIBILITY

(1) YES IF RELEVANT, AUTHENTIC AND RELIABLE

Photographic evidence such as motion pictures, videotapes and still pictures, may be admitted into evidence if relevant to a material issue and properly authenticated. The decision whether to admit surveillance films and the weight to be accorded such evidence are matters within the discretion of the judge. Spectrum Arena, Inc. v. Workmen's Compensation Appeal Board , 51 Pa. C. 381, 414 A.2d 445 (Pa. Cmwlth. 1980) (The referee, in a back injury case, did not "capriciously disregard" a surveillance film showing claimant carrying a shopping bag and going to visit neighbors).

(2) DISCRETIONARY WITH TRIAL JUDGE

However, such discretion is not unlimited and an abuse thereof will result in a reversal. See, e.g., United States v. Harris , 534 F.2d 207 (10th Cir. 1975); cert. denied , 429 U.S. 941 (1976); United States v. Blackwell , 694 F.2d 1325 (D.C. Cir. 1982); Wilson v. Piper Aircraft Corporation , 282 Or. 61, 577 P.2d 1322 (1978).

In Westinghouse Electric Company v. Workmen's Compensation Appeal Board , 96 Pa. C. 443 507 A.2d 1287 (Pa. Cmwlth. 1986), the court held that it was error to refuse to admit into evidence surveillance films. While the films were not admissible to establish that claimant suffered no disability, they were admissible to impeach the credibility of claimant's evidence on the extent of his disability.

The common law standard of admissibility for photographic evidence remains intact under the Federal Rules of Evidence (FRE) as Rule 402 imposes a relevancy requirement and Rule 90(a) mandates authentication or identification as a condition precedent to admissibility and this requirement is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims, i.e. , that the evidence accurately represents its subject. Moore v. Leaseway Transp. Corp. , 49 N.Y.2d 720, 402 N.E.2d 1160 (1980).

Thus, otherwise probative motion pictures of claimant's activities will be excluded, in the absence of proper authentication. For example, where the camera person was not available to authenticate the pictures and where his successor could not authenticate the full and complete movie account and where the claimant "did not know" if he was the subject in the films, the proffered evidence was excluded. General Accident, Fire & Life Assurance Corp. v. Camp , 348 S.W.2d 782 (Tex. Civ. App. 1961). However, motion pictures taken of the claimant after the injury were admitted because the camera person corroborated the film as an accurate depiction of what he had witnessed. Raban v. Industrial Comm'n of Ariz. , 25 Ariz. App. 159, 541 P.2d 950 (1975).

Once authenticated, any confusion or uncertainty over surveillance evidence really goes to the weight of the evidence, rather than its admissibility. Reed v. Tiffin Motor Homes, Inc , 687 F.2d 1192 (4th Cir. 1982).

(3) EFFECTIVENESS, PROBATIVE VALUE AND IMPEACHMENT

Now that we have discussed the procedural aspects of surveillance films, what about their evidentiary value?

If the purpose of surveillance films is to impeach claimant's assertions as to the extent of his disability, the degree of impeachment must be substantial to have any effect on the fact-finder. Demonstrative evidence such as a surveillance film is, like all evidence, subject to interpretation and is weighed along with all other evidence in the case. Sometimes the result may depend upon the vagaries of the particular judge assigned to the claim. While some judges will really come down hard on a claimant proven to be lying, others require very dramatic and graphic films, the so-called "smoking gun," to move them away from resolving all doubts in the claimant's favor in interpreting, for instance, the Longshore Act, which is always described as a humanitarian and beneficent statute and one which should not be interpreted in such a way as to produce a "harsh and incongruous result."

(4) "BACK IN THE SADDLE AGAIN"

Lest I seem unduly pessimistic in the use of surveillance films at the formal hearing, I would like to bring to your attention the famous or infamous, depending on your side of the aisle, "Rhinestone Cowboy Case." In Phillips v. California Stevedore U Ballast Co. , 9 BRBS 13, 16 (1978) the judge relied primarily on the medical opinion of the independent examiner that claimant could no longer physically perform certain tasks. However, the Benefits Review Board, our immediate reviewing authority, after watching the same surveillance films as the judge, reversed the award of benefits with these words:

The move films . . . show claimant actually engaging in many of the same physical tasks. . . without any evidence restriction or discomfort. It is patently unreasonable' to believe that the claimant can mount, dismount and ride a horse but cannot climb and ascent from ships' ladders and cargos. To reach any other conclusion is to exalt fantasy over reality.

The moral of this case: sometimes the demonstrative evidence can be so overwhelming that it leaves the fact-finder with just one answer.

While it may be stating the obvious, we should all recognize that surveillance films offered to impeach claimant's credibility are of all intents and purposes useless unless the claimant denies that he or she can engage in physical activities and such films indicate otherwise. We should also recognize that a well-prepared and well-presented claim will demonstrate the full extent of the claimant's disability to the judge without the necessity of exaggerating any disability or even "showboating" for the judge's edification. Of course, as is often stated by the host of that popular television program " CANDID CAMERA ," "smile because you never know when you will be on camera." Thus, it might be advisable for counsel to alert claimant to that possibility.

The evidentiary evidence of surveillance films is diminished if the evidence is distorted or misleading or if there is an attempt at improper influence by evoking emotional responses instead of rational ones. Distortion can be intentional or inadvertent and, sometimes, can result from the technical expertise of the photographer. Such distortion can be countered by the other side's expert witness. All of these factors bearing upon the authenticity and reliability of the evidence are considered by the judge as part of the evaluation process.

I will now briefly highlight two significant problems in reported cases. For instance, motion pictures of a claimant disabled by spinal disc disease showing him shoveling gravel were not enough to justify reopening the case and terminating benefits. Why not, a disinterested party might ask? The record reflected that elaborate detective work was done to induce the disabled man to dig, to conceal cameras in fox holes and to spy on his other activities. The net result was to convince the judge that the man was indeed disabled because he moved cautiously, used only his arms and hands and never bent his back. Fee v. Calcasieu Paper Co. , 112 So.2d 439 (La. App. 1959).

In another case, the activities recorded on surveillance films were apparently induced by payment under the pretext the claimant, in need of money at the time, was aiding a criminal investigation. However, the appellate court held that the films were properly admitted because films "need not be taken with either the knowledge or consent of the claimant," even if taken after the commencement of litigation. Isodore v. Workmen's Compensation Appeal Board , 77 Pa. C. 346, 465 A.2d 1096 (Pa. Cmwlth. 1983).

D. CONCLUSION

Modern litigation favors access to all relevant material rather than to reward "gamesmanship, surprise or superior trial tactics." Dodson v. Persell , 390 So.2d 704, 707 (Fla. 1980).

APPENDIX

ADDITIONAL
REPRESENTATIVE CASES INVOLVING
USE OF SURVEILLANCE FILMS
AND THEIR PROBATIVE VALUE

BENEFITS AWARDED AND/OR CONTINUED EVEN WITH SURVEILLANCE FILMS IN EVIDENCE

1. Duncan v. Carlo Ditta, Inc. , 206 So.2d 140 (La. App. 1968) (employer's motion for modification was denied despite a movie film which showed claimant at work on a soft drink truck as claimant testified that although he was working, he at times required a helper and missed many days of work because of this condition; Louisiana workmen's compensation law does not require that an employee, in order to earn a living, work in pain).

2. Glover v. Southern Pipe & Supply Co. , 408 So.2d 352 (La. App. 1981), cert. denied , 412 So.2d 86 (1982) (the court of appeals reversed the denial of benefits because the trial judge had placed far too much weight on a very brief film which showed the claimant lifting a light load and bending for a few seconds, i.e. , carrying a small laundry basket of clothes to and from the back seat of a car).

3. Knott v. Welltech, Inc. , 428 So.2d 1221 (La. App. 3 Cir. 1983) (a 51-second film of claimant moving sacks of crawfish was not probative evidence that he was not totally disabled from his back pain because the film showed only "very brief and not particularly strenuous activity").

4. Petz v. Boise Cascade Corp. , 58 Or. App. 347, 648 P.2d 372 (1982) (a film which showed claimant working on his house only showed that he could engage in sporadic physical activity but did not sustain the employer's burden of proving that claimant who had only an eighth grade education and was unable to obtain suitable employment was no longer totally disabled).

5. Krugen v. Beall Pipe & tank Corp. , 19 Or. App. 922, 529 P.2d 962 (1974) (film only showed the claimant who was sixty-five years of age doing those things that most retired men can do such as puttering around camper equipment).

6. John B. Kelly Co. v. Workmen's Compensation Appeal Board , 8 Pa. C. 589, 303 A.2d 255 (Pa. Cmwlth. 1973) (films showing physical activities do not constitute an infallible measure of either disability or earning power; such films must be scrutinized with great caution by the courts).

7. Constanzo v. Southern Farm Bureau Casualty Insurance Co. , 124 So.2d 621 (La. App. 1960) (motion pictures taken at intervals lose much of their potency in refuting the extent of the claimant's disability and fair play dictates that when such pictures are used in a compensation claim, "they should reflect all activities of the subject of the pictures, and not merely snatches of fragments taken over the four hour interval" of surveillance).

8. DeChandt v. North Dakota Workers' Compensation Bureau , 452 N.W. 2d 82 (N.D. 1990) (videotapes showing claimant welding and cutting up farm equipment did not outweigh positive medical testimony of claimant's continuing disability together with his testimony that these jobs were painful and left him in pain).

9. Lambert v. Wolf's Inc. , 132 So.2d 522, 527 (La.App. 3 Cir. 1961) (evidence in the form of motion pictures must be used with great caution, because such pictures show only very brief intervals of the activities of the subject; they do not reflect whether the subject is suffering pain, and they do not show the after effects of the activities).

DENIAL OR REDUCTION IN BENEFITS BASED, IN PART, ON SURVEILLANCE FILMS.

1. Scott v. Wasielewski , 89 Ariz. 29, 357 P.2d 614 (1960) (motion picture film was admitted to prove fraudulent claim of disability).

2. Lawler v. Industrial Commission , 24 Ariz. App. 282, 537 P.2d 1340 (1975) (benefits were terminated by the carrier based on surveillance films which caused one of the claimant's expert medical witnesses to change his opinion on the extent of disability).

3. Rodriguez v. Miami Baking Co. , 430 So.2d 955 (Fla. App. 1983) (videotape showed claimant doing heavy lifting at her brother's business).

4. Blackwell v. Wimberly , 53 So.2d 814 (La. App. 1951) (films made on five successive days showing heavy work as a roughneck in the oil fields with no evidence of pain).

5. Bankston v. The American Insurance Co. , 171 So.2d 290 (La. App. 1965) (film showed claimant engaging in normal activities with no trouble).

6. Nolan v. Stamper Drilling Company , 488 So.2d 312 (La. App. 1986) (videotape showed claimant working on his car and engaging in "gymnastic" activities, according to the testifying physician).

7. Ulibarri v. Homestead Mining Company , 643 P.2d 298 (N.M. App. 1982) (surveillance team had developed pictures of claimant pouring and shoveling concrete to build a driveway).

8. Hartzell v. Workmen's Compensation Appeal Board , 101 Pa.C. 137, 515 A.2d 1009 (Pa. Cmwlth. 1986) (surveillance videotape caused three physicians to alter their opinions on claimant's disability).

9. Patterson v. Stayton Canning Company , 36 Or. App. 263, 584 P.2d 347 (1978) (referee credited surveillance film as impeaching claimant's credibility on the extent of his disability and the referee could disregard testimony of claimant's doctor and an employment counsellor).

10. Blackford v. State Accident Insurance Fund , 521 P.2d 1092 (Or. App. 1974) (motion picture showed the claimant actively doing garden duties that he testified he had not done and could not do).

11. Harpham v. General Casualty Co. , 232 Neb. 568, 441 N.W. 2d 600 (1989) (the court, rejecting as "spurious" claimant's assertion that he was unfairly prejudiced by the selective viewing of three videotapes, held that while those times that the claimant did not use his left arm would not establish he was unable to do so, those times that he, in fact, used his arm established his ability to do so ).

[ENDNOTES]

¹ The views expressed herein are solely those of the author and should not be interpreted as those of anyone else in the Office of Administrative Law Judges or the Department of Labor.

USDOL/OALJ Library -- The Use of Surveillance Videos at the Formal Hearing From the Judge's Perspective

United States Department of Labor Office of Administrative Law Judges Law Library

United States Department of Labor
Office of Administrative Law Judges Law Library