June 5, 2008

The Admissibility of
Surveillance Evidence
in Defense of
Personal Injury Litigation

By Kevin L. Connors

Without question, surveillance evidence can be a formidable tool in defending personal injury litigation.

It typically takes the form of a video of a personal injury Plaintiff engaging in physical activities in contradiction of the allegations in Plaintiff’s personal injury Complaint, Plaintiff’s answers to discovery requests, and Plaintiff’s deposition testimony. Such surveillance can provide either demonstrative evidence, or impeachment, and is useful to prove that the Plaintiff’s physical condition is other than what the Plaintiff might represent to the jury, or the factfinder.

Surveillance is the utilization of several mediums, not limited to video, for investigating the financial, employment, and general health background of a personal injury litigant. The mediums available to investigators include:

It also includes the actual process of “surveilling,” in which the personal injury litigant is placed under surreptitious surveillance to determine the veracity, or lack thereof, of their alleged physical incapacity and limitations following a personal injury accident.

Surveillance investigations are often enhanced by two key factors: sheer luck, and an opportunistic profiling of the Plaintiff’s lifestyle and contacts.

Surveillance, as an investigative process, either coordinated by defense counsel, or through an insurance carrier or an administrator, can be somewhat pricey in terms of the rewards/benefits. Surveillance investigations yielding probative evidence disputing the claims of a personal injury Plaintiff, that their accident injuries remain debilitating and life-changing, are often statistically enhanced by two key factors: one being sheer luck, and the other being an opportunistic profiling of the Plaintiff’s lifestyle and contacts, thereby diminishing the role that sheer luck might play in the Plaintiff doing something, or being somewhere, that they claim is impossible because of accident-related limitations.

The decision to use surveillance is one that must be made based on an informed analysis of the claim.

Understanding as well that not every personal injury claim warrants the use of surveillance, the decision to employ surveillance is one that must be made based on an informed analysis of the claim, taking into account the Plaintiff’s physicality, social, occupational, and recreational activities and contacts, whether the Plaintiff is actively treating for the alleged accident injuries, and whether the Plaintiff is alleging life-changing sequela from the accident.

Moreover, certain types of personal injuries have the potential to yield more probative surveillance: specifically low back injuries, giving the full range of activities implicated/altered by back injuries, and claims involving extremity injuries, either to the legs or arms.

Factors to consider in the course of deciding to use surveillance include, but are not limited to:

Issues arising post-decision to surveil a personal injury Plaintiff will principally depend upon two factors, one being whether the surveillance is discoverable, and the second being its admissibility at trial or arbitration.

Video surveillance is discoverable, begging the question of when the surveillance must be disclosed.

It is well-settled under Pennsylvania law that video surveillance is discoverable, begging the question of when the surveillance must be disclosed. Oftentimes, the answer to this question depends on whether its disclosure has been sought by the opposing party. If the opposing party has requested that surveillance be disclosed, must the surveillance be disclosed before the surveiled party is deposed? If the surveillance is conducted post-deposition, what, if any, disclosure requirements will be implicated before the party utilizing the surveillance seeks to introduce it at trial or arbitration?

The answer to these questions appears to lie in the Pennsylvania Superior Court’s holding in Dominick v. Hanson 753 A.2d 824 (Pa. Super. 2000). In Dominick, the Plaintiff’s Interrogatories specifically requested information as to whether surveillance had been conducted, further requesting that the surveillance be “produced” as being discoverable.

In answering Plaintiff’s discovery requests, the Defendant objected to the surveillance interrogatories, in reliance upon the “work product doctrine.” That objection was never challenged by the Plaintiff before trial, with the surveillance video being introduced into evidence at trial, with the Plaintiff’s objection being overruled by the trial court.

Several Courts have held that the surveillance need not be actually turned over until its admission is sought at trial.

On appeal to the Superior Court, the Court held that the surveillance had been discoverable, but that the trial court had correctly deemed the surveillance video to be admissible, as the video was relevant to the subject matter of the lawsuit, with the Dominick Court noting that several Courts have held that the surveillance need not be actually turned over until its admission is sought at trial. See also Gibson v. The National Railroad Passenger Corporation a/k/a/ Amtrak 170F.R.D 408 (Ed. Pa. A. 1997). So holding, the surveillance video was deemed admissible, and the defense verdict entered was affirmed.

As a strategic tactic, it is certainly worth considering asserting a “work product doctrine” objection to a Plaintiff surveillance Interrogatory, particularly before a Plaintiff is deposed, with the defense being able to consider the tactical advantage of “producing” the surveillance post-deposition, and before trial.

Careful attention must also be paid to local jurisdictional rules, as most Common Pleas Courts set very high requirements in terms of pre-trial disclosure of witnesses and evidence, the purpose of which is to avoid surprise, as well as to streamline the trial itself.

Caution must nevertheless be exercised, in the course of seeking its admission, to insure that the surveillance is properly authenticated

Concluding that surveillance is useful, probative, and admissible in the defense of Plaintiff personal injury claims, caution must nevertheless be exercised, in the course of seeking its admission, to insure that the surveillance is properly authenticated by the surveillance videographer, as opposed to a mere surveillance investigation company representative, as the surveillance video would still be subject to the standard evidentiary requirements of authentication, in avoidance of the surveillance being inadmissible hearsay.

Practical Tips

Not every personal injury claim will warrant surveillance.

Evaluating the risks/rewards associated with surveillance, it is an investigative tool that needs to be considered within the larger context of defending a personal injury claim. Not every personal injury claim will warrant surveillance, so the decision to engage in surveillance will always be done on a “case-by-case” basis, no less true with any other tool available to insurers, administrators and/or defense counsel, in the course of defending personal injury claims.

Looking at the “big picture,” surveillance, whether actually used or not, is invaluable in maintaining a “you could be caught” mentality, particularly since it is almost always discussed in every initial intake evaluation by personal injury counsel with their clients, the personal injury litigants.

Statistically speaking, surveillance investigations, more often than not, do not result in the production of evidence that will necessarily impeach or discredit the “my life is forever over” testimony/allegations of a personal injury litigant. But it is successful enough times, where success is defined as resulting in the production of probative evidence capable of impeaching/discrediting a personal injury litigant, that its use as an investigative tool must be considered in the larger context of defending personal injury claims that oftentimes involve the highly subjective components of pain and suffering, embarrassment and humiliation, and loss of life’s pleasures, with surveillance having utility in terms of placing the claim of permanency and disability into a framework of real time, real world images.

Dedicated to defending parties and insurers subjected to personal injury litigation, we encourage you to contact us with questions regarding casualty claims, and casualty litigation.

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