Diamond Offshore Services Limited and Diamond Offshore Services Company v. Willie David Williams

Opinion

ACCEPTED 01-13-01068-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/4/2015 4:09:30 PM CHRISTOPHER PRINE CLERK

No. 01-13-01068-CV

IN THE COURT OF APPEALS FILED IN 1st COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS AT HOUSTON 9/4/2015 4:09:30 PM CHRISTOPHER A. PRINE Clerk

DIAMOND OFFSHORE SERVICES LIMITED AND DIAMOND OFFSHORE SERVICES COMPANY, Appellants, v.

WILLIE DAVID WILLIAMS, Appellee.

Appeal from the 164th District Court of Harris County, Texas, Trial Court Cause 2011-31922

APPELLANTS’ MOTION FOR EN BANC RECONSIDERATION

ADELE HEDGES, BECK REDDEN LLP ATTORNEY AT LAW PLLC David M. Gunn Adele O. Hedges State Bar No. 08621600 State Bar No. 09368500 dgunn@beckredden.com ah@adelehedges.com Constance H. Pfeiffer 2719 Colquitt State Bar No. 24046627 Houston, TX 77098 cpfeiffer@beckredden.com (713) 702-4289 1221 McKinney, Suite 4500 Houston, TX 77010 (713) 951-3700 (713) 951-3720 (Fax) COUNSEL FOR APPELLANTS TABLE OF CONTENTS PAGE TABLE OF CONTENTS ...................................................................................................i

INDEX OF AUTHORITIES.............................................................................................. ii

ISSUE PRESENTED ON REHEARING............................................................................... 1

EN BANC STANDARD .................................................................................................. 2

SUMMARY OF RELEVANT FACTS ................................................................................. 2

ARGUMENT ................................................................................................................. 8

I. The Admissibility Analysis for Visual Evidence in Civil and Criminal Cases Should be Uniform. .................................................... 8

A. Video surveillance evidence is routinely admitted under Rule 402. ........................................................................... 9

B. Video surveillance evidence is rarely excluded under Rule 403. ................................................................................... 12

C. Rule 403 provided no basis to exclude the video in this case. .................................................................................... 14

PRAYER FOR RELIEF .................................................................................................. 16

CERTIFICATE OF SERVICE .......................................................................................... 17

CERTIFICATE OF COMPLIANCE .................................................................................. 18

APPENDIX

Functional Capacity Evaluation (DX-28) ................................................Tab A

Jury Charge/Verdict ................................................................................. Tab B

Trial Court Judgment ............................................................................... Tab C

Court of Appeals Majority Opinion .......................................................Tab D

Court of Appeals Dissenting Opinion ..................................................... Tab E INDEX OF AUTHORITIES

CASE PAGE(S)

Baker v. Canadian National/Illinois Cent. R.R., 536 F.3d 357 (5th Cir. 2008) ........................................................................10, 13

Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231 (Tex. 2007) .............................................................................. 13

Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014)................................................................................... 12

Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993) .............................................................................. 10

Crist v. Goody, 507 P.2d 478 (Colo. App. 1972) ......................................................................... 10

Dunn v. Bank-Tec South, 134 S.W.3d 315 (Tex. App.—Amarillo 2003, no pet.) ........................................................................................................ 9

Flannery v. State, 1999 WL 504183 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) ................................................................................. 15

Gordon v. State, 784 S.W.2d 410 (Tex. Crim. App. 1990) .....................................................12, 15

Graves v. State, 01-07-00212-CR, 2008 WL 5263349 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)................................................................................................... 11

Heiman v. Market Street Ry. Co., 69 P.2d 178 (Cal. Ct. App. 1937) ....................................................................... 10

Hernandez v. State, 01-13-00467-CR, 2014 WL 4113095 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)................................................................................................... 11

ii Home Ins. Co. v. Garcia, 74 S.W.3d 52 (Tex. App.—El Paso 2002, no pet.) ........................................................................................................ 9

Huston v. United Parcel Serv., Inc., 434 S.W.3d 630 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) ................................................................................ 9

James v. Carawan, 995 So.2d 69 (Miss. 2008) ............................................................................10, 13

McDougal v. McCammon, 455 S.E.2d 788 (W.Va. 1995) ............................................................................. 11

Moak v. Illinois Cent. R.R. Co., 631 So.2d 401 (La. 1994) ................................................................................... 11

Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416 (Tex. App.—Eastland 2006, no pet.) ............................................................................................9, 12, 13

Samarkos v. Goddard, 2013 WL 2705964 (Cal. App. 2013) (unpublished) ...................................................................................................... 13

Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997) (en banc)................................................................................................................ 8

Smith v. Diamond Offshore Drilling, Inc., 168 F.R.D. 582 (S.D. Tex. 1996)........................................................................ 11

Sweet v. Pace Membership Warehouse, Inc., 795 A.2d 524 (R.I. 2002) .................................................................................... 10

Texas Capital Sec., Inc. v. Sandefer, 58 S.W.3d 760 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) .............................................................................. 13

Wal-Mart Stores, Inc. v. Hoke, 2001 WL 931658 (Tex. App.—Houston [14th Dist.] 2001, no pet.) ...............................................................................9, 14

iii Williams v. State, 01-14-00395-CR, 2015 WL 4591683 (Tex. App.—Houston [1st Dist.] July 30 2015, no. pet. h.)..................................................................................... 11

Wolford v. JoEllen Smith Psychiatric Hosp., 693 So.2d 1164 (La. 1997) ................................................................................. 11

Zegarelli v. Hughes, 814 N.E.2d 795 (N.Y. 2004) ............................................................................... 11

Zimmerman v. Superior Court In & For Maricopa County, 402 P.2d 212 (Ariz. 1965) (en banc) .................................................................. 10

OTHER AUTHORITIES TEX. R. APP. P. 41.2 ................................................................................................... 2

TEX. R. EVID. 401......................................................................................................................... 9 402..................................................................................................................... 8, 9 403................................................................................................................passim

iv ISSUE PRESENTED ON REHEARING

This personal injury case involves an ordinary injury that resulted in an

extraordinary verdict. Every element of the plaintiff’s claims was hotly disputed,

and the jury’s verdict would have probably been different if the defendant had been

permitted to use its best evidence. The Panel divided sharply over whether a ruling

excluding surveillance video of the plaintiff was harmful error. Given the division

among the Panel and the recurring nature of this issue, it warrants the full Court’s

attention.

Did the Majority create an unjustified schism between how civil and

criminal courts determine the admissibility of visual evidence, and did it pave the

way for the routine exclusion of surveillance videos in civil cases? EN BANC STANDARD

En banc consideration is appropriate when it is “necessary to secure or

maintain uniformity of the court’s decisions[.]” TEX. R. APP. P. 41.2. That

standard is met here, because the Court’s civil and criminal standards for the

admissibility of surveillance video have diverged. Given that the analysis in both

types of cases hinges on the same evidentiary rules, there is no reason to have

differing standards.

SUMMARY OF RELEVANT FACTS

The plaintiff in this personal injury case, David Williams, alleges he suffers

extreme pain and mental anguish and can never work again.

A key dispute is whether Williams’s injury is as debilitating as he claims.

The defendants are two Diamond Offshore entities who do not deny that Williams

has a herniated and a bulging disc in his back and may be unfit to return to his

former job. But they have strong evidence to believe that Williams can work again

and that his disabilities are overstated.

After a report concluded that Williams is fit for work and exaggerating his

pain, Tab A (DX-28), Diamond Offshore hired an investigator. It wanted to see for

itself what Williams can do in his unguarded moments. Through videotape of

Williams on three consecutive days, it learned he could do quite a lot. See Defense

Proffer No. 3 (one-hour videotape).

2 On one day the video shows Williams operating heavy equipment,

unassisted. He moves freely about, tearing down a structure and loading scrap

metal onto a truck—all while the equipment is vibrating heavily and obviously

requiring some strength and physical effort to operate.

3 4 On another day, the video shows Williams working on the “monster tires” of

his lifted truck. 5 RR 77. This footage tends to show that Williams, who had

previously worked as a car mechanic, could still do this type of work. 6 RR 137.

5 Not only can Williams work, he can also play. While on medical leave

(while Diamond Offshore was paying Williams his salary and medical expenses),

Williams sent photos of himself deer hunting to his buddies on the rig. See

Defense Proffer No. 2 (photos). Williams stood proudly next to a 120 pound doe.

During the pretrial hearing in this case, Williams preemptively sought to

exclude all of Diamond Offshore’s visual evidence and even its medical expert’s

opinions formed after viewing that evidence. Williams assured the trial court that

he would admit he could do everything the videotape showed, such that putting the

visual evidence before the jury would be improper impeachment.

The trial court ruled that Diamond Offshore could show the video to the jury

only if Williams opened the door by denying things shown on tape:

THE COURT: Here’s what I’m gonna do. You can keep it in your reserve bank for impeachment, and that’s it. So, if he opens the door, then we’ll take a look at it.

2 RR 29.

The trial court did not view the video when making that ruling. 2 RR 25

(“Your Honor, I’m assuming you have never seen the video. THE COURT: No.”).

The trial court stood by this ruling each time the evidence was offered at trial. See

4 RR 182; 5 RR 82; 6 RR 6. The trial court also excluded Diamond Offshore’s

medical expert’s opinion formed after he viewed the video. 6 RR 236-43.

6 Without the benefit of this evidence, the jury returned a verdict for Williams

on everything he requested. Their damages awards totaled $9.6 million. Tab B

(verdict). The trial judge, the Hon. Alexandra Smoots-Hogan, signed a judgment

on the verdict. Tab C (judgment).

A panel of this Court divided on whether it was harmful error to exclude the

surveillance video. The majority opinion, authored by Chief Justice Radack and

joined by Justice Jennings, affirmed the trial court’s decision to exclude the

surveillance video, concluding that the trial judge could have determined the video

was inadmissible under Rule 403. Tab D at 26 (majority opinion). Justice Keyes

authored a dissenting opinion that explained why excluding the video was harmful

error. Tab E (dissenting opinion).

7 ARGUMENT

The Texas Rules of Evidence ought to be reliable tools that work the same

way in every type of case. Yet a panel of this Court has just created a schism

between its civil and criminal dockets for the admissibility of surveillance video.

To our knowledge, the Majority’s opinion is the only one in Texas to uphold the

exclusion of a surveillance video in its entirety. The full Court should reconsider

this ruling.

I. The Admissibility Analysis for Visual Evidence in Civil and Criminal Cases Should be Uniform.

This case is a referendum on whether the rules of evidence apply differently

when visual evidence is offered by a civil defendant or against a criminal one.

Gruesome autopsy photos are admissible against criminal defendants charged with

murder. See Santellan v. State, 939 S.W.2d 155, 172-73 (Tex. Crim. App. 1997)

(en banc) (affirming admission of “disturbing” photos over Rule 403 objection).

Yet the Majority holds that ordinary video footage showing a personal injury

plaintiff’s physical abilities is properly excludable as too prejudicial in a civil trial.

The Majority found itself unaided by any “binding” authority and thus

affirmed the trial court’s ruling as an exercise of discretion. The binding authority

is Rules of Evidence 402 and 403. Courts applying these rules routinely admit the

exact type of evidence that was excluded in this case. The ruling excluding the

evidence in this case cannot be rubber stamped as within the zone of discretion.

8 A. Video surveillance evidence is routinely admitted under Rule 402.

Video surveillance evidence in a personal injury case is “relevant,” as it

tends to make disputed facts more or less probable. TEX. R. EVID. 401 & 402.

Surveillance videos are thus routinely admitted in Texas personal injury trials

because they are relevant and substantive.1

This Court’s Huston case is much like this one, involving a sharp dispute

over liability and the severity and extent of back injuries. But unlike Williams,

Huston hardly hit the jackpot. The jury returned a verdict in her favor for $96,000

—an order of magnitude less than the verdict in this case.

Like Diamond, UPS argued that the plaintiff’s injuries were exaggerated and

related to a prior injury and her degenerative disc disease. UPS Br. 26. But unlike

Diamond, UPS was permitted to use its 20-minute surveillance video, which

showed the plaintiff walking with no apparent distress. UPS Br. 26. On appeal,

UPS lauded this evidence: “Perhaps the most damaging evidence to Appellant’s

credibility was a surveillance video taken more than a year after the accident.” Id.

The Home Insurance Company case is also much like this one, except the

trial court admitted video surveillance evidence of the plaintiff—even though the

plaintiff conceded he could perform the tasks it showed. 74 S.W.3d at 56-57.

1 See Huston v. United Parcel Serv., Inc., 434 S.W.3d 630, 642 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); Wal-Mart Stores, Inc. v. Hoke, 2001 WL 931658, *13 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Home Ins. Co. v. Garcia, 74 S.W.3d 52, 56-57 (Tex. App.—El Paso 2002, no pet.); Dunn v. Bank-Tec South, 134 S.W.3d 315, 328-29 (Tex. App.—Amarillo 2003, no pet.); Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416, 424 (Tex. App.—Eastland 2006, no pet.). 9 The seminal Fifth Circuit case on surveillance evidence fully explains why

such evidence is admissible not just for impeachment but also as substantive proof.

See Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993).

A plaintiff’s personal injury claims render surveillance evidence of her abilities

substantive, because “the severity of her 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.; see also Baker v. Canadian National/Illinois Cent.

R.R., 536 F.3d 357, 368-69 (5th Cir. 2008).

The highest court of Williams’s home state has found the exclusion of

surveillance evidence to be reversible error in a personal injury case. See James v.

Carawan, 995 So.2d 69, 75-78 (Miss. 2008). Evidence that undoubtedly would

have been admitted at trial if Williams had filed suit in his home state of

Mississippi is just as admissible in Texas, where the analysis is the same.

Indeed, the admissibility of surveillance evidence as substantive evidence of

personal injuries is accepted by courts from coast to coast.2

2 On the West Coast, courts have long held surveillance evidence admissible: “Surveillance evidence and the like, although useful for impeachment purposes under certain circumstances, also contains substantive evidence relevant to the matters in litigation[.]” Zimmerman v. Superior Court In & For Maricopa County, 402 P.2d 212, 217 (Ariz. 1965) (en banc); see also Heiman v. Market Street Ry. Co., 69 P.2d 178, 180-81 (Cal. Ct. App. 1937) (surveillance in the form of “moving pictures” properly admitted) (first video case); Crist v. Goody, 507 P.2d 478, 479-80 (Colo. App. 1972) (“We hold first that ‘surveillance movies’ are primarily substantive evidence and not totally or even basically impeachment evidence.”).

On the East Coast, two high courts have reversed and remanded for new trials where surveillance videotapes were excluded. See Sweet v. Pace Membership Warehouse, Inc., 795 A.2d 524, 527-29 (R.I. 2002) (excluding video surveillance of personal injuries was harmful 10 On the criminal side of the docket, Texas cases discussing surveillance video

evidence are a dime a dozen. More than 60 criminal cases within the First and

Fourteenth Courts of Appeals reference the admission of surveillance video in the

context of criminal prosecutions. Surveillance videos come into evidence even

where defendants admit to the crime3 or where a witness is available to testify to

the things captured on video.4 The admission of surveillance videos is so common

that a defendant has argued that the trial evidence was insufficient because there

were “no eyewitnesses or surveillance videos placing him at the scene.”5

error); Zegarelli v. Hughes, 814 N.E.2d 795, 798 (N.Y. 2004). A third high court has affirmed the admission of such evidence. McDougal v. McCammon, 455 S.E.2d 788, 795 (W.Va. 1995).

In the Gulf Coast, Louisiana’s highest court has stated the relevance of surveillance video quite cogently: “When a plaintiff is claiming personal injury, a film, videotape or photograph taken surreptitiously of his activities by or at the direction of the adverse party is highly relevant with regard to the nature and extent of that injury and is likely to have a dramatic impact in court.” Moak v. Illinois Cent. R.R. Co., 631 So.2d 401, 404-05 (La. 1994) (discovery holding modified by Wolford v. JoEllen Smith Psychiatric Hosp., 693 So.2d 1164 (La. 1997)).

The only debate about surveillance evidence concerns the timing of any pre-trial discovery. E.g., Smith v. Diamond Offshore Drilling, Inc., 168 F.R.D. 582, 586 (S.D. Tex. 1996). This is not an issue here. 3 See, e.g., Hernandez v. State, 01-13-00467-CR, 2014 WL 4113095, at *2 (Tex. App.— Houston [1st Dist.] 2014, pet. ref’d) (even though the defendant admitted that he stabbed the victim with a knife, the surveillance video showing this encounter was admitted into evidence and published to the jury). 4 See, e.g., Graves v. State, 01-07-00212-CR, 2008 WL 5263349, at *9 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (“The State presented the Coast Guard surveillance video along with the testimony [of the officer] responsible for security and surveillance around the Coast Guard facility.”). 5 See, e.g., Williams v. State, 01-14-00395-CR, 2015 WL 4591683, at *6 (Tex. App.—Houston [1st Dist.] July 30 2015, no. pet. h.). 11 B. Video surveillance evidence is rarely excluded under Rule 403.

A Rule 403 balancing presumes that relevant evidence is admissible and

asks whether the risk of unfair prejudice substantially outweighs probative value.

TEX. R. EVID. 403. Video evidence usually has “substantial probative value.”

Gordon v. State, 784 S.W.2d 410, 413 (Tex. Crim. App. 1990) (seminal case

discussing admissibility of videotapes). The Texas Supreme Court explains that

“many of the inherent problems with [eyewitness] testimony—inaccurate memory,

poor eyesight, bias, etc.—are simply not present with a video recording.”

Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 22 (Tex. 2014). The Texas

Supreme Court twice observed in the context of surveillance video evidence that “a

picture is worth a thousand words.” Id. at 17, 22.

Unique circumstances may make a video properly excludable under Rule

403. For example, a trial court properly affirmed the exclusion of “a six second

portion of [a] video depicting [the plaintiff] engaging in movements with his arm

that appeared to be the simulation of an inappropriate act.” Nat’l Freight, Inc. v.

Snyder, 191 S.W.3d 416, 419-20, 424 (Tex. App.—Eastland 2006, no pet.).

Though the trial court admitted the rest of the video, it properly excluded the 6-

second portion because “many jurors likely would have been offended by [this

portion of the video]” and “one of the remaining portion of the video [already]

showed Snyder using both of his arms to pick up a large object.” Id.

12 The Snyder decision illustrates that the “unfair prejudice” contemplated by

Rule 403 is “an undue tendency to suggest a decision on an improper basis,

commonly, though not necessarily, an emotional one.” Id. at 424; see also Bay

Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007); Texas

Capital Sec., Inc. v. Sandefer, 58 S.W.3d 760, 779 (Tex. App.—Houston [1st Dist.]

2001, pet. denied). Under this definition of “unfair prejudice,” courts routinely

uphold the admission of surveillance evidence in personal injury cases despite Rule

403 objections.6

By contrast, imagine visual evidence showing a person’s gang tattoos, or

leaving a disreputable business establishment, or kicking his dog. Jurors might not

look past these irrelevant and potentially emotional facts, which is precisely what

would make the risk of prejudice unfair.

Other than the 6-second portion of surveillance video excluded in Snyder,

we are unaware of any Texas case analyzing the exclusion of surveillance video.

If left intact, the Majority’s decision will become the seminal case in Texas

discussing the exclusion of an entire surveillance video in a personal injury trial.

6 See, e.g., Baker v. Canadian National/Illinois Cent. R.R., 536 F.3d 357, 369 (5th Cir. 2008) (Owen, J.) (holding surveillance evidence not unfairly prejudicial in personal injury cases; “Unfair prejudice is not satisfied by evidence that is ‘merely adverse to the opposing party.’”); James v. Carawan, 995 So.2d 69, 78 (Miss. 2008) (“Aside from its damaging effect to [plaintiff’s] case, we are unable to determine how [admission of video surveillance evidence] would unfairly prejudice [plaintiff].”); Samarkos v. Goddard, 2013 WL 2705964, *6 (Cal. App. 2013) (unpublished) (holding video surveillance evidence depicting a personal injury plaintiff’s daily living was not unfairly prejudicial; “prejudice” in the rules of evidence means “prejudging a person or cause based on extraneous factors”). 13 C. Rule 403 provided no basis to exclude the video in this case.

The Majority held that the trial court could have determined that the risk of

unfair prejudice outweighed the surveillance video’s probative value because it

“created an impression that Williams could engage in physical activity for long

periods of time without needing rest and without apparent pain.” Op. at 26.

It is true that the video demonstrates that Williams can walk normally and

withstand physical activity without limping, wincing, or showing other visual

manifestations of pain. That this might have “created an impression” that Williams

is exaggerating is precisely why it was offered. “The obvious purpose of these

tapes [i]s to provide the jury with evidence [the plaintiff’s] injuries were not very

serious.” Wal-Mart Stores, Inc. v. Hoke, 14-99-00503-CV, 2001 WL 931658, at

*13 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (mem. op.).

A surveillance video is not unfairly prejudicial simply because it does not

capture events favorable to both sides. The truth seeking mission of a trial permits

both parties to put on their best evidence. Only with a full and fair evidentiary

fight can the jury discern which evidence to credit. The Majority erred by

embracing a rationale that renders surveillance videos excludable in all personal

injury cases, as plaintiffs can always think of something that the video does not

show.

14 Further, in criminal cases, trial courts must view the videotape in order to

determine its probative value and determine the risk of unfair prejudice. Gordon v.

State, 784 S.W.2d 410, 412 (Tex. Crim. App. 1990) (a Rule 403 balancing “must

be made by the trial court after viewing the tape”); Flannery v. State, 1999 WL

504183, at *2 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (“After watching

the videotape outside the jury’s presence, the trial judge determined that it was

‘very probative.’”)

Yet the Majority implicitly holds that the same balancing does not apply to

the admissibility of visual evidence in civil cases. In this case, the trial court ruled

that the visual evidence is admissible only for impeachment purposes—if the

plaintiff denied what it shows, and on this basis it did not view the videotape to

perform a Rule 403 balancing. 2 RR 29. The Majority nevertheless concludes that

Rule 403 could have been a basis to exclude the videotape in its entirety. Op. at

26. Such a holding paves the way for arbitrary and capricious exclusionary rulings

any time a plaintiff prefers that a jury not see the defendant’s visual evidence.

The full Court should hold that a Rule 403 balancing cannot be done blindly.

It should further hold that, in this case, there is nothing unfairly prejudicial about

the evidence that substantially outweighs its probative value. It was harmful error

to exclude Diamond Offshore’s visual evidence in its entirety.

15 PRAYER FOR RELIEF

The en banc Court should grant review, reverse the judgment and remand for

a new trial.

Respectfully submitted,

BECK REDDEN LLP

By:/s/ Constance H. Pfeiffer David M. Gunn State Bar No. 08621600 dgunn@beckredden.com Constance H. Pfeiffer State Bar No. 24046627 cpfeiffer@beckredden.com 1221 McKinney, Suite 4500 Houston, TX 77010 (713) 951-3700 (713) 951-3720 (Fax)

Adele Hedges ADELE HEDGES, ATTORNEY AT LAW, PLLC State Bar No. 09368500 ah@adelehedges.com 2719 Colquitt Houston, TX 77098 (713) 702-4289

ATTORNEYS FOR APPELLANTS

16 CERTIFICATE OF SERVICE

I hereby certify that on September 4, 2015, a true and correct copy of the above and foregoing Motion for En Banc Reconsideration was forwarded to all counsel of record by the Electronic Filing Service Provider as follows:

Jeff Oldham BRACEWELL & GIULIANI, LLP 711 Louisiana Street, Suite 2300 Houston, TX 77002-2770 jeff.oldham@bgllp.com

Michael Patrick Doyle DOYLE LLP 2402 Dunlavy Street, Suite 200 Houston, TX 77006 mdoyle@doylelawfirm.com

Walter Z. Steinman LAW OFFICES OF WALTER Z. STEINMAN 400 Greenwood Avenue Wyncote, PA 19095 wsteinman@steinmanlaw.com

Counsel for Appellee Willie David Williams

/s/ Constance H. Pfeiffer Constance H. Pfeiffer

17 CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Tex. R. App. P. 9.4 because it contains 3,056 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4.

2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14 point Times New Roman font.

Dated: September 4, 2015.

/s/ Constance H. Pfeiffer Constance H. Pfeiffer Counsel for Appellants

18 No. 01-13-01068-CV

IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

DIAMOND OFFSHORE SERVICES LIMITED AND DIAMOND OFFSHORE SERVICES COMPANY, Appellants, v.

Appeal from the 164th District Court of Harris County, Texas, Trial Court Cause 2011-31922

APPENDIX TO MOTION FOR EN BANC RECONSIDERATION

TAB

A Functional Capacity Evaluation (DX-28)

B Jury Charge/Verdict

C Trial Court Judgment

D Court of Appeals Majority Opinion

E Court of Appeals Dissenting Opinion Tab A Functional Capacity Evaluation (DX-28) 0 STATE OF .M ISSISSIPPI §

COUNTY OF /.}i rd5 §

AFFIDAVIT

Medical Records Pertaining To: WILLIE DAVID WILLIAMS Date of Birth: 02/14/1969 Social Security Number:

BEFORE ME,~ b]~ (NOTARY), the undersigned authority, personally appear"d LouQ.N"C CJ'Cidl~AFFIANT), who, being by me duly swor11, deposed as follows:

My name 1s (AFFIANT). I am of sound mind, capable of making this Affidavit, and personally acquainted with the facts herein stated:

I am a custodian of the medical records for Medicomp Physical Therapy. Attached hereto are ___{""'"--_pages from the medical records ofMedicomp Physical Therapy. These said _ __ _ pages of records are kept by Medtcomp Physical Therapy in the regular course of business, and 0 it was the regula.r course of business of an employee or representative of Medicomp Physical Therapy, with knowledge of the act, event, condition, opinion or diagnosis, recorded to make the record or to transmit infonnation thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the originals.

Further, Affiant sayeth not.

AFrIANT

SUBSCRIBED AND SWORN TO BEFORE ME on this the /2- day of_ _f1U:~~-- 20 l 2. ...... (,,--~A?A @{~ ·• •• MIS •·· . •• 0 f .••..•. i1~~~

~TAJiy ..~~·:\~-1 Pue(;.··!'~· ·"t··O 0·.-o · f~:' ~ ID ti 50453 \ ;_.. ~ PUBLIC IN AND FOR . : : DANA BLA'R , : . THE STA TE OF MISSISSIPPI EXHIBrf

0 ~ \ Co1t11tlsslon E1plrt1/ ••• ;.:.. Jun• 7, 2013 "°Y4'• .··'t .•-3.. I JL-28 ·~ .... •1c,;·······o··\\~ c ... MED 0629 F"RO'fk •

\\/WorkWell 0 SYSTEMS.IN C Medlcomp Physical Therapy/Jackson 1054 Greymont Avenue Jackson, MS 39202

Su.mmary Reeort

Name: Willie "David" Willi.ams Test Dates: July 71\ 2011 Gender: Male Date of Birth: 2114/1969 Physician: Dr. Pat BBITett Date of Injury: December 2007 Medical History: Reviewed in chart by PT, bx of discectomy and fusion. Employer: Diamond Offshore Primary Di•&nosis: Baok pa:iD

0 Reason for Tgnf!j • Determine physical abilities.

Descrletioa of Test Dope: • One-Day Core WorkWcdl FCE

Effort and Cooperation: • Client patterns of movement and physiologicfl) responses consistent with maximal effort. e Client demonstrated cooperative behavior and was willing to work to maxi.mum abilities in all test items

.Qomistency of Performance: • Client gave maximal effort on all test .i tems as evidenced by predictable patterns of movement including increased accessory muscle recruitment, cowiterbalancing and use of momentum, and physiological responses such as mcreased heart rate. • Functional limitations noted are consistent with physical impairments and diagnosis

Pain Report: • CJient reported discomfort present iD lower back during ma1erial handling tasks, but there was no mterference m safety. () MED 0477 FRO.. .JUL 1:Z 201.. 9': 18/ST. B: 17,No. 76315'!261:>415 p 4

Sf!-ety_;

0 • Client demonstrated safe perfonnance using appropriate body mechanics, throughout all subtests. ' Ou!ljty of Movement: .. Client demoll;Strated safe and appropriate changes in body mechanics, including use of accessory muscles. counterbalancing, and momentum, as load/force increased. These changes are expected and consistent with maximal effort.

Ab!!ities/Strengtbs: • The client deinonstrates the ability to tolerate material handling tasks in the lower end of the MEDWM physical demand level.

Umft!#om: • The client does have limitations with bending for long periods of time, standing. and antalgic gait.

Potep.tial Barrlen tD1RetllrR to Wo[k: • Unabl.e to fully assess ability to tetum to work. as, validated job description was not available, verbaJ reports from client/strpe!Visor were used.

0 Plw&ial Ren1m. to 'Work Qptton1 ExQiopd: · ,. The large discrepancy between client nbillties and self reported job demands may indicate limited success of rehabilitati~ to prior level of function. Alternative placement may be the most feasible plan.

Tbenpitt'1 ftec;pmmepdodolll Bc«arfljgg B.sturn.to Work; • AJthough job descriptions was oot obtained, based on supervisor and/or client report there is oot a job match.

~ummary/ll!com~ndatioo1; • These projections are for 8 hours per day/40 hours per week at the levels indicated on the FCE under basic ergonomic conditions.

US DeDt o( Labor Phydcat D•••pd .Level: • MEDIUM

()

MED 0478 WorkWeU FCE Physical Exam 0 Syatem1 Review Blood Pressure: 149/99 He.art Rate (resting): 72 Height: 5, 11" Weight: 240 lbs. Gait: mild antalgic iait Posture: Unremarkable. Coordination: unremarkable Movement Characteristics: slow with sit to stand Atrophy/Edema: none observed. .Integumentary: tmremarkllble Mtisc.le Tone Spasms: unremarkable

Musculosteletal Sntem

Trank Normal Ralu!e of Motion Flex.ion 80 Mod loss

0 Extension Ri2ht Lateral Flexion 30 35 Major Joss Mod loss Left Lateral Flexion 35 Mod Joss Ri2ht Rotation 4.5 MOd loss Left Rotation I 45 Mod loss

Commentl/Qoality of Modoo-- Spine: • Cervical ROM VINL • Most dysfunction is with standing trunk extension.

Comments!Quality of Motion- Upper Quarter: • Shoulder/elbow/wrist/hand ROM and strength WNL.

Commeuts!QuaUty of Motion· Lower Extremity: • Hip ROM WFL, althouih there is a limitation with internal rotation (0 degrees bilaterally). Strength WNL. • Knee, an.k:1e ROM and strenat}l WNL.

Neuromuscular Syttem Sensory Testing: unremarkable Reflex Ankle Jerk: NA Reflex Knee Jerk: NA

c Reflex Upper Extremities: NA

MED 0479 FROtt (TUE)JUL.. 12 :2011 e: "1'9/6T. 8! "17/Ho. "76·36':Zl5134S p a

0 Balance , • SLS each leg was >I 0 seconds.

First Day S1111tmary of Physical A.8senment~ • Gross limitation with trunk ROM, decreased tolerance to extension. • Modifie.d Oswestry Pain Questionnaire: 90%. This score is consistent with patients that are either bed bound or exaggerating their symptoms. This score is not consistent with what the client was able to do during the FCE. The client's perception of abilities is less than what be is capable of doing.

0 MED 0480 F°".OM (TlliE)JUL 1:2 :2011 B: 'TB.l'ST, s; T7.l'No. 7B382:9T348 p 7

0 WorkWeH FCE Test Results and Interpretation The inu:rpretation of Woric:Well's standardized functional testing is based on assumptiona incluclin8 notmal breaks, buic ergonomic eondition5 and that lhe tested functions are usually not required more than 213 ofa nonno.l wor!cing day. Jfa function i!I required continuously, job related testing llht>uld be perfonnerl.

(nterpretarion of ob11en1ed function. regarding activity during a nonnal worlc:ing day rosltfoa/Ambaladon Freq11eucy Weighted Activities QaHdtatlve + % of Workday Ob1erved Effort Level Oualttatlve Results NEVER Contraindicated N'otPossible 0% RARELY Maximum Sianificant Limitation l-5% OCCASIONALLY HeeVY Some Umitation 6-33% FREOUENTLY Low Slight/No Limitatioo 34-66% SELF LIMITED Clic:at stmmed test· submaximum effort level Subma:x%

Ufthaa, Stren:th Ullable Mu. Heavy Low Llmftatlen• Rec:ommendlltioas Obsl Waist to Floor 30# 25# 0# Umited standing tolenrnce. (l I"\ Waist to Crown 30# 25# 0# Limited standing tolerance an

Pulh·hll rstttic) force Generated Limitations R.eroDUDflldatlons Push Static ISO# PuUStatic 175# .. (There are numerous vanablcs impacting Push/Pull including load, equ1pmeot. surl2cc, etc. This ls not meant to indicate the weight that 1s moved".)

Poaure; Unable Slpificaot Some SUghtlNo LlmltatioOJ Recoauuendatie11s Flulbllky, Llmtcation Limitation Li..Utatton Amb•l•tiOll Eiefatcd Wori; x Deltoid fatigue. (Unweietuein Fwd Said x Paraspinal fatigue; limited Standintt stBnding t.o.lcrance. Sittin~ x Slanding Work .x lncn:ati:d trunlt flcition with orolonll!ed stm:idin2. Walking· 6MWT x Antalaie tail J)lltt.em. Crouch x Loss ofneut:rat mine.. .Kneeling I Half x L£ fatigu~, Kneeling Stairs x Antalgjc gait; eii.cessiveuse ofrails.. Stq> [adder· Two x Excessive 1.1st UE pulling. Handed

0 MED 048 1 FROM

0 Summary Table Patient: Willie David Williams DOB.: 2114/1969 Lifting, Strength Rarely Occaslonally Frequently (lb$) f1-5%) (8-33%) (34-G8%~

Weist to Floorl11•) 30# 25# 0# Waist to crown (Hands at Handles! 30# 25# 0# Walat to CrCM'n 30# 251 0# (Preferred Method}

Front Carry (Lono) 351 JOI 0#

RIQht Canv 30# 25# 0#

Pu&h·Pull (static) Force Generated

Push Static 150#

PlJllStatlc 175#

Postut'•, Flulbl!lty, Ambutation

Elevated Wort (UnwelghtedJ OccaslonaUv

Fwd Bend Standln!l Occasionallv

Slttina FreouentlY

Standlno Work Oceasionall\I

Walklna- 6MWT Occaeionall\I

Crouch Oecaslon111v KneelinQ/Half-kneefino Oc.caslonallv

Stairs Occaslonallv

Steo Ladder- Two Handed ' Occaslonallv

Physical Demand Level: MEDWM

u MED 0482 Hand/Finger

0 Strength

FlandGri Hand Ori

Coordln•doo Number Percentile Limltadon Recommendations Comnleted Purdue Pegboard Right IS 2s•h Purdoe Pegboard Left 14 i 14th Pwi:iue Pegbolltd Assembly 18 1 <1111

Coordindion Standard Sc»re Ratin!! Llmitadon Recommendations PCERound 86 ' Avg. Bloc:ka Dominant Hand PCERound 84 . Avg. Bloc.ks NonDominanl . Hand :'

0 Sipature: __ ~.,,_.,.=-o.:"""""' rr:.___________ .... Hamp Guton, PT Date; _ _1_-__._<...?. ......-__ __r....1_ _ _ _ __ ,,_.,.

0 MED 0483 Tab B Jury Charge/Verdict (CR 232-47) ·: Co lA~T COPV \ OFFIClf\L ------- Cause No. 2011-J1922

WILLIE DAVID WILLIAMS § lN THE DISTRICT COURT OF § Plo in tiff, § Q -JC § ............ ~ t v. § HARRISCOUNTY,liaii$ ~ I

§ ~o ... o § -~ °" \:~ a.. .... .c:. OQ' \.£.I DIAMOND OFFSHORE SERVICES LIMITED § (,/")

and § fire DIAMOND OFFSHORE SERVICES § lMth JUDICIAL DISTRICT COMPANY De fond.ants. § § l >. Q

L\D!E.5 AND GENTLEMEN OF THE JURY:

This case is submitted to you by asking you 4u~stions about the. facts, which you must decide from the evidt!ncc you have heard in thi::; trial. You. are the sol~ judges of the credibility of the witnesses and the weight to be given their testimony, but in matters of law, you must be governed hy the instructions in this charge. In discharging you:r rl'Spon~ibility on this jury, yriu will observe all th~ inf.tructions which have previously been given you. 1 sho.11 now give you ~dditional inslructhms which you ~hould carefully t1nd !'trktly follow during your ddibt:r~tions.

l. Do not let bias, prejudice or sympathy play any part in your de.liberation~.

2. In arriving at your answers, consider only the evidence introduced ht:1re under oath and such exhibits, if any, ~-\shave been introduct;?d for your consideration under the rulings of the Court, that is, what you 11ave sec~n anJ hec\rd in this courtl'oom to~)ether with the Jaw as gtven you by the Court. In your deliberations, you will not consider or discuss anything that is not representC'd by the Pvidence in this C<'!SC.

::1. Since every answer rcqt.1TrQd by th~ char~e is important, no juror sh(.1uld stat(' or ~011sid<.:r that any required ar1:.1\'l'er is not important.

·1. You must not decide who you think should win, and then try to answer the questions accordingly. Simply answer the questions and do not discuss nor concern yourselves witl1 the effect of your answers.

232 5. Yuu will not decide c.m is.sue by lot or by dmwing straws, or by any other m<.>thmi of chance. Do not return a quotient Vt:!rdkt. A quotient verdict means that the jurors agree to abide by the result to be reached by udding together each juror's figures and then dividing by the number of jurors to get an average. Do not do any trading on your answers--that is, one juror should not agree to answer a certain question in a certain wciy in ~xchange for unothcr juror answering another yucstion in a certain way.

6. You may rend~r yo:.ir verdict 0n the vote of ten {10) or more ni.~mbers of the jury. The same ten (10) cw more of you must agree upon all of the answers made and also ~1grc~ .is to the entire verdict. You will not, therefore, cnler into an agreement to be bound by a majority or any other vote of less than ten (10) jurors. ff the verdict and all answers therein are reached by unanimous agreement, the presiding juror shall sign the verdict for the (m~ire jury. If any juror 1.fomgrees as to any an-;wer made by the verdict, those jurors who agree as to all findings shall each sign the verdict.

The~e instruction~ are given to you lx.'Causc your conduct is subject to review the ~ame as that of the witnesse.'), parties, attorney and th~ .iuther trial by amlthcr jury; then all of our tim~ will have been wasted.

The presiding juror or any other who observes a violation of the Court's instructions shall ilnmediateiy warn the one who is \'iolating the same and caution the jllrm· nc>t to do so again.

When the wo.rd~ are us~

Answer "Yes" or "No" to all questions unles~ otherwise instructed. A "Yes" answ~r must be based upon a preponderance nf the evidence, unkss otherwise instructed. If you do not find that a preponderarn.:~ of the evidern::e supports a ''Yes'' answer, th~n answer "No." The term 11 PREPONDERANCE OF THE 'EVIDENCE" me21n~ the greater weight aml degree of credible testimcmy or evidence introduced bcfor~ you and admitted in this rnsc. Whenever (\ <.JUf'9tion requires an answer other than~ ''Yes" or "No'' ,1nsw~r, yuur ::mswer must be based upon a prepondcnmci:.' oft.he evidence unless otherwise instructed.

A .fact m.ay be established by direct evidt!nc<: or by circumstantial evidence or both. A fact is established by direct evidence when rroved by documentary evidence or by witnesses who saw the.> act done or heard the word~ spoken. A fact is eSt'1b1ished by circumstantia1 evidence when jt may be fairly and rr"sonably inf.erred frt,m other focts

233 provided.

ln answering questions about damages, answer <:ach question separatt ly. Do not 1

increase ()r reduce the amount in one answer b~cause of your answer to any other question about damages. Do not speculate about what any party's ultimate recovery may or may not be. Any rec:ovc.'ry will be determined by the court when it 41pplies the law to your answers at the time of judgment. Do not add any amount for interest or damages, if any.

Deposition testimony <.:onsists of the SWl)rn testimony of witnesses tc:1hn by a court reporter in the presence of attorneys for the parties. Deposition testimony read into evidence during the trial or presented by vid(!Qtape is to be cons.idered by you in the si:lme manner as though the witness had personally appeared befoi:c you and testified from the witness stand.

Tht> plaintiff, Willie David Williams, a seaman, is

You must consider e~ch of these claims se=paratt>ly. The plaintiff is not rc1.1uircd to prnve both of thes~ clC\ims. He may rec.over if he proves either one of them. However, he may only recover those damages or benefits that the law provides fur th!;! particular claims that he proves; he may not recover the exact same damages or benefits more than once.

Not every mJury tht:1t follows an accident necessarily results from it. The acciJcnt must be the cause of the injury.

In determining causi:ition, different rules apply lo the Jones Act Claim anJ to the unseaworthiness daim.

Under the Jones Act, f<..lr both the employer's negligence and the plaintiff's contributory negligence, an inju.ry or damage is considered caused by an acl1 or failure to act, if the act or omission brought about or actu

In an unseawortlun~ss claim, the plaintiff must show, not mer~ly th~t the

234 unseaWQrthy condition was a cause of the injury but that such condition was a proximare cause of it. This means that the plaintiff must show that the condition in question wc,ts a substantial factor in bringing about or actually causing his injury, and th.at the injury was either a direct or reas.onably probable consequence of the condition.

235 Qut:!stion 1 JONES ACT - NEGLIGENCE

Under the Jones Act, the plaintiff, Willie David Willi().ms, must prove that his employer, Diamond Offshore, was negligent. NegUgence is the doing of an act that a reasonably prudent person would not do, or the failure lo do something that a reason'1bly prudent person WL1uld do, under the same or similar circum!\tanc€s. The occurrence of an accident, 5tan\iing alone, does not mean anyone's neghgenc<.> mused the acdd~nt.

(n <:1 Jones Act claim, the word 0 negligencc 11 is given a liberal int<~rpretation. It includes any breach of duty that an employer owes to his employees who are seamen, including the duty of providing for the safety of the crew.

Under the Jones Act, if Diamond Offshorc 1s negligent act or ().Cts caused the plaintiff's injury_, in whole or 1n pcirt, then you must find that the ~n1ployer is liable unJer tht' Jones Act.

N~gligence under the Jones Act may consist of a failure to comply with a duty requireJ. by law. Employers ot seamen have a duty to provide their employees with a reasonobly safe place to WOl'k. If you find that th~ plaintiff was injured because the defendants failed to furnish him with a reasonably safe place to work, and that the plaintiff's working comlitions could have been nlad12 safe through th~ exl!rcise of reasor1able care, then you must find that the defendants were negligent.

The fact that Dmmond Offshort..> conducted its operations !n a mannl!r similar to that of oth~r companies is not conclusive as to whether the defendants were n~gligent or not.

You must determine 1f the operation in questio.n was reasonably safe under the circumst~nces. The fact that a certain practice has been continued for a lm1g period of time does not necessarily mean that it is reasonably safe under all circumstances. A lnnp, a..:cepted practice may be «n unsafe practice. HowL'Ver, a practice is not ncccsstirily unsafe er unreasonable merely because it injures someone.

A seaman's employer is legally responsible for the i1egligence of one ol his employ~t:!s while that ~mployce is acting withiH th~ course and sc.·,)pe of his employment.

236 Do you find that Diamond Offshore was negli~ent and that such negligence was a c.:iuse, in whole or in part, of Willie David Williams' injuries?

Answer "Yes" or '1 No":

237 Question 2 UNSEAWORTHINESS

The plaintiff, WUlie David Williams, seeks onm.ages for personal injury that he claims wns caused by tht> unseaworthiness of thL' defendant's vesst>l, the OCEAN LEXINGTON.

A ve8sd owner owes to (!Very member of tht.• crew employed on its vessel the absolute duty to keep and maintain the vcs!:id, cmct afl deck and passag~ways, applianr~s, gear, tools, parts and equipment of the vessel in a seaworthy condition at all times.

A seaworthy vessel is one that is reasonably fit for its intended use. The duty to provide a SC.:lworthy vessel is absolute because the ownt>r may not delegate that duty to anyone. Liability for an unseaworthy condition doc::. not in any wny dept.>nd upon negUg..mc~ or fault or blame. Jf an owner does not provide a seaworthy v~s~el- a v~s.sd that i!i reasonably fit for it:; intended use-no amount of care of prudence excuses the owner.

The duty to provide a seaworthy vessel includes a duty to supply '11'\ adequate and C(.)rnpetent crew.

Hm·...-ever, the owner of a vessel is not required to furnish an accident free ship. He nel;!d only fo.nush a vessel and its appurtenances that are rea..c;onably fit for their int0111.J~d use and a crew that is reasonably adequate for their assigned lasks.

The vessel owner is not required to provide the best appliances and equipment, or the finest of crews, on his vessel. He is only required to provide a g(~ar that is reasonably proper and suitable for its intended u:::;e, and a crew that is reasonably adcg1.1ate.

In summary, if you find that the owner of the vessel, Diamond Offshore, diu not provide r jf you find that the vessel was in any mannt>r unfit in accordance with the law as t havt! just explained it to you and that this was proximate cau:;e of the injury, a term I will explain to you, then you may find that the ve~sel was unseaworthy and the ship owner liable, without considering any negligence <>n the part of the defendant or any of its employees.

However, if you find thJt the owner had a capable crew and appliances and gear that were safe and suitable for their intended USL', th

238 and the defendant is not liable to the plaintiff on the claim of unseaworthiness.

Do you find that Diamond Offshore failed to furnish a seaworthy vessel and that the unseaworthy condition of the vessel played a substantial pa.rt in bringing about Willie David Williams' injuries?

Answer "Y~s" or ''No": ~~S_·-

239 If you answered "Yes" to Questions 1or2, then answer Question 3. lf not, you should not answer any other Questions.

Question3 CONTRIBUTOl{Y NEGLIGENCE

The Defendants cont~nd that th~ Plaintiff, Willie David Williams, was negligent, and that the Plaintiff's negligence, caused or contributed to causing his injury. This is ihe defense of "contributory neglicf\nce'', Defendants have the burden of proving that Willie Dovid Williams, was contributorily n~gligent. It Plaintiff's ncgligenc(' contributed to his injury, he nevertheless may recover if he shows thnt Defendants wt>re also negligent and liable. However, the omount of his recovery will ht: reduced by the extent of hi~ contributory negligence.

A seamnn is obligated under the Jones Act t

If you find that the Defendants were n~gligent or that the vessel was unseaworthy and the n~gligence or un~c.tworthiness W'15 the proximate

:::>o you find that Willie Dnvid Willi3ms w

Answer ''Yes" or "No":

240 For each party that you found liable in a.nswer to Questions 1, 2, or 3, what p~rcentage o.f the negligence and/ or unst>aworthiness do you attribute to each person or entity na.med below?

Your total should cqual 100%, and you should answer in whole numbers only. If you do not find a party to be at fault, enter a zero (0) in the column next to the appropriiltc name.

Question4

Diamond Offshore .~3_0_% OCEAN LEXINGTON (the vessel) ~(p~O_% Willie David WiHiams ~10 . _%

lO

241 Question Nu. 5 DAMAGES

If you find that a defendant is liabk, you must award the amount you find by a prep1mderance of the evidt>nc~ as full and just compensation for all of the plaintiff's dJm~ges. Compensatory damages are not aHow~d as a punishment against a party. Such damages cannot be bc:ised on speculation, for it is only actual damages ·what the l"w calls compensatory damages - that are recoverable. However, Mmpen~atory dama~es are not restricted to actua! loss of time or money; tht?y include bMh th~ men.ta! and physical aspects of injury, tangible and intangible. They are an attempt to make the pkiintiff whole, or to n:istorc him to the position he would have been in if the accident had not happened.

You should consider tht> following elements of damages, to the ext~n.t you find that the plaintiff has established such damages by ii preponderance of the evidence; phy..-ical yain and suffering including physic411 disability, impairment, ;md incoiw

Some of the damagt...'S, ~uch as mental or physical pain and suffering, are intangibk things about whkh no evidence c{ valu0 is rel_{uired.. In awarding these damage~. you are not determining value, but you should award an amount that will fairly compensate the pl.aintitf for his injuries.

Any award you makt! to the plaintiff is nat subject to income tax; neither the state nor the federal government will tax it. Therefor\'.', you should determinl'.' the amount that plaintiff is entitled to rcc:ei\'e tvithout considcrine the effect of taxes upon it.

You may not £lWatd <.lumages for any injury or condition from which the pl,:iintiffs may have suff~red, or may now be suffering. unless it has been proved by a preponch.•n:ince of thQ cvidNl.CC' that the accident pro:

If you find that the plah1tiff is entitled to an oward of damages fol' loss of future earnings, there are two particular factors you must consider. First, you should consider Ioss aftl'r income taxes; th;,t i!', you should dderm.ine the actua.1 or net ilKOml' that

tI

242 pl

Second, an amount to cover a future loss of ~arnings is more valuable to the plaintiff if he received the arnount today than if he received the same omount in the future. Therefore, if you t.iedde to award plaintiff an amount for lost future c~rnings, you must discount it to present value by considering what return would be rc<'llih(.'d on a rel a ti vel y risk free irw~.stmli!l'lt.

You may award damages for any bodily injury that the plaintiff sustained and any pain and suffering, di:<'lability, disfigurement, mental anguish, and/ or loss of ca parity for enjoyment of lifo that the plaintiff experienced in the past or will experience in the future as a result of llw bodily injury. No evidence of the valul.' of intangible things, such ns mental or physical pain and suffering. h:u• been or need be introdure. You arc not trying to det~rrninc vaht~, but an amount th~t wlil fairiy compensate the plaintiff for th(' damages he b"s suffered. There is no exact standard for fixing the compi:-a~ation to be awardell for these elements of d:lmage. Any award that you 1m1kc shoulJ be fair in the light of the evidence.

You may award damages for aggravation ()f ~m existing disease or physical defect retiulting from physical injury to the plultc-d from the aggravatio11, ~nd make alfow.ance in your verdict lmly for the aggravation.

Future medical exp~ti.ses include the reasonable value of the t:!xpense of hospitalization, medicat and nllrsing care and treatment that the plaintiff will require in the future because of his it1juries which were caui;ed by the defendants' wrongful comlur.t.

A person wbl) cltlims dilm•1ges resulting fnJm the wrongful act of Jnother has "'

It you. find the defendanl is liable and the plaintiff has suffered damitgc-s, the plaintiff may not recov~r for any item of damages which he could have avoided through reasoruiblc effort. If you find by a prepomleranre of the evidence the plaintiff unren~Onably failed to take udvantage of an oppol'tunity to kssen his damages, you should deny him recovery i<:>r those damages which he would have <.'IV('lidcd had he

243 taken advantage of the opportunity.

You are the sole judge of whether the plaintiff acted reasonably in avoiding or minimizing his damages. An injured plaintiff m~y not sit idly by when presented with an opportunity to reduce his damages. However, he is not required to exercise unreasonable efforts or incur unreasonable expenses in mitigating the damages. The defendant has a burden of proving the damage which the plaintiff could have mitigated. ln deciding whether to reduce the plaintiff's damages because of his failure to mitigate, you must weigh all the evidence in light of the particular circumstances of the case, using sound discretion in deciding whether the d~fondant has satisfied his burden of proving that the plaintiff's conduct was nol reasonable.

State the amou:it of damages, if an~-, y1)u award Plain6ff Will~e David Williams for each of the items:

Answer separately, in dollars and cents, for damages, if any.

a. Physical pain and mental anguish sustained in the past.

Answer:~ .50D\Ol.JO.oo ~~ b. Physkal pain and mental anguish that, in reasonable' probability, David Williams will sustain in the future.

Answer: S 3 ~ <..l µ.\. \ \ ~, VV\ c. Loss of earning capacity sustained in the pa3t.

/\.nswcr: $

d. Lo~s of €arning capacity that, in rcosonable probabmly, David WilHams will sustain in the future. I) ; I ."\ '7 5 c• ~~ ...i_.~-\ C:... Answer: d S-i • d -

c. Physical impairment sustained in the pa...,t.

Answer:.~ d '5 0 ~ 000

244 £. Physical impairment that, in reasonable probability, David Williams will sustain in the future.

Ans..,ver: S \ ~ t'\A..l \\ lWl g. Disfigurement sustained in the past.

Answer: _$.._Q_ !:>-o 1 OO O ~ \ '\.'\.~ ~ h. Disfigurement that, in reasonable probability, David Williams will sustain .in the future.

Answer;_$

i. Medical care expenses that, in reasonable probability, will be incurred in the future.

Answt~r: $ -<.\ l\ '{) l 000 ~\~~~

245 INSTRUCTIONS ON DELIBERATION

After you retire to the jury room1 you will select your own presiding juror and conduct y-our deliberations upon your answers to the questions asked.

It is the J.uty of the presiding juror: 1. k" preside during your deliberntionsi 2. to set: thnt your deHbemtions an'! conducted in an ordedy maf'lner and in accordance with the instructions in this charge; 3. to write out anJ hand to the bailiff any communications concerning the case that you want to have delivered to me at any time, who will bring your written message to me. f will then respond as promptly as possible either in writing or by meeting with you in the courtroom; 4. to conduct a vote on the question.c;; 5. to write your answers to the questions in the ~paces provid~d; and. 6. to certify your unanimous verdict in the space provided for the presidiog juror 1s signatur

You ~hould. not discuss the case with anyone, not ewn with other members of the jury, t:mle~s nH of you are present nnd assembled in the jury room. Should anyone attempt to talk to you about the case before the verdict is returned, whether at the courthouse, nt ynur h0me, or elsewhere, pka~c inform me of this fatet. You must ncve>r disclose to ..inyone, not even to me, yi.)Ur numerical division oa any question. Unless J Jirect yt)U (•thcrwise, do not revecJl your .:inswcrs until such Hm1: a5 you are discharged.

When you have answered all the questions you are required to an.o;wrr under my instructions and your presiding jurnr has placed your

You may now retire to tl~e jury room to conduct v

A LEX ANDRA SMOOTS. DJSTRICT JUDGE

246 CERTIFICATE

We, the jury, have an.9wercd the above and foregoing questions as indicated

herein, and herewith return same into Court as our verdict.

(To bE~ signed b ·~~i::i.·~u.ror, ONLY, if unanimous.) ·- -?

PTU:SfDI

(I'o be signed by tho.se rendering the verdict if not unanimous.)

·- - - -- - - - ----- --·-- - - -

- - - - - -- -- - -

- - -----

247 Tab C Trial Court Judgment (CR 258-61) F.ILED Chris Danfel Dl•trlc:t Clerk

OCT 11 2013

Cause No. 2011-31922

WILLIE DAVID WILLIAMS § IN THE DISTRICT COURT OF § Pfotntiff, § § v. § HARRIS COUNTY, TEXAS § § DIAMOND OFFSHORE SERVICES LIMITED § and § DIAMOND OFFSHORE SBRVICF.S § 164'" JUDICIAL DJSfRICT CO.f\.fPANY § Defendants. §

FINAL JUDGMENT

On September 16, 2013~ this case ct1me on lo b'ial. Plaintiff Willie David WWJruns

appeared In pe1·son and by and th.rough his attomeys of -reco1·d and a.tu\ow1c:ed ready for

trJaJ. Defendants Diamond Offsho1·e Setvices Limited and Dhur101ld Offshore Servkes Company appeared through theh· col'pomte represenmtive and by and tlvough U1efr

attomeys of record and announced ready for b'lnJ. A jwy of twelve qualified jw'Ors was

thereafter duly selected Md emptU1eleCl and swo1•n to by the cMe.

111e Pin.inti.ff rested on September 18, 2013, and the DefeudMis rested on Septembe1•

19, 2013. TJJe cause was submitted to the jmy by written Chntge on September 20, 2013,

On Scph:!mber 20, 2013, the Jury l'eturned hl ope1\ Coul.'t witl1 its verdict. The Cow·t

accepted its verdict, ordered it filed ru1d eute1'E?d of record, and discharged the Jury. The

Charge of the Coutt, indudi.ng the jury questions and the ve1'dict of the jury, are

lncorpo1·nted in th.ls Judgment by l'eference for nil purposes.

"\JC) I

258 1,,1 Bru.;ed 011 the }Ury's verdict, the Cou1't finds that Plointiff Willie Dnvld Williiuns Is

the successful nnd pmvalling party, 1uld U\ftt judgmeut should be rendernd on the verdict

in favor of Plainti!( Willie David Williams and against Defendants Diamond Offshore

Se1vices Lhnitcd and Diamond Offsho1·e Se1vlces Company, johltly and sevemlly.

Accordingly, it isi

ORDERED, ADJUDGED, AND DECREED that Plaintiff Willie Dnvid Williams

l'Ccover from Defendants Diamond Offsho1·e Servicea Limited and Dian1ond Offsho1·e

Services Compru1y, jointly nnd severally, the t<>lal sum of $8,512,068 as actual damages

(which .represents the total recove1y Jess the ten percent (10%) of fault nttdbuted to Willie

David Williams by the ju1y, then less an offset of $197,29.3 reduction for the net advances

paid by Defendants); and

IT IS FURTHBR ORDERED, ADJUDGED, AND DECREED t1mt PJftintiff Willie

Dttvid Williams recover from Defendant Diamond OffshGre Services Co111pany, owne1• of

the vessel OCEAN LEXINGTON, prejudgment intel'est totaling $2~5,381 coverh1g the

pe1'iod from J1muruy 7, 2008, tlU'ough Octobe1• 11, 201~, (which represents $1,557,793 It'

pnst dnmages les9 an offset of $197,293 for the net Advances p1·eviously paid by

Defendant, leaving past losses nftet• reduction Cor advances of $1,360,500, then 1·educed

to the 60% of fault determined by the ju1y to be due to the unseaworthiness of Diamond

Offshol'e Se1·vices Compru1y's vessel, thereby totftllng $816,300, then calculated at five

perceJ\t (5.0%) simple interest). The amount of the actual damages ns awarded by the

jury, logethe1· with the prejudgment intel'est as cakulnted above thl'Ough Octobe1· 11,

2013, is $8,747,4.49. In the event that the Judgment Is not signed on October 11, 2013,

259 there shall be ._ctditionnl prejudgment lntc1·

beyond that dnte ending on the day the Judgment ls actually signed.

JT JS FURTHER ORDERBD, ADJUDGED, AND DECREED Utat Plaintiff Willie

David WillJnms ndditfonally recovet•, jointly fUld severnlly, from Defendants DJamond

Offshore Services Limited and Diamond Offshore Sel'Vices Company post~judgment

interest compounded annually at the rate of five percent (5.0%) on the actual damages,

nfte1• offset nnd including prejudgment interest, of $8,747,449 from the date of this

Judgntent w1til pnid, together with taxable costs of Court;

TI\Is judgment is final. It disposes of nll claims and nll pnrties, Md ts appealable.

AU w1•its Alld processes for the enfo1·cernent nn.d coUection of th1s judgment 01· Uw

costs of court mny issue as necess1uy.

AU othe1· relief not expressly granted ltl this judgment is DENlED.

T. ntrkk Bnynhnm Steven K. Best Two Lakewny Center, Suite 950 3850 N. Causeway Boulcvnrd MetaJrle, LA 70002 COUNSEL POR DEFENDANTS

260 •

MICHABLPATRICKD YLB state Bnt No. 06695650 OneHoualon Cenler 1221 Md

261 Tab D Court of Appeals Majority Opinion Opinion issued July 21, 2015.

In The

Court of ~peal~ For The

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

OPINION

In this Jones Act case, Willie David Williams sued Diamond Offshore

Services Limited and Diamond Offshore Services Company (collectively,

"Diamond Offshore") for negligence and unseaworthiness arising out of an incident in which Williams allegedly injured his back while trying to repair a piece

of machinery on board an offshore oil rig owned and operated by Diamond

Offshore. The trial court rendered judgment on the verdict in favor of Williams,

awarding Williams, once all applicable credits and offsets had been applied,

approximately $8.5 million in compensatory damages, $235,381 in pre-judgment

interest, and post-judgment interest. In three issues, Diamond Offshore contends

that (1) the trial court erroneously excluded a post-incident surveillance video

depicting Williams performing various outdoor activities; (2) the trial court

erroneously excluded evidence that Diamond Offshore paid Williams 85% of his

pre-incident salary for three years before trial; and (3) the jury's damages awards

for past and future disfigurement, future medical expenses, loss of future earning

capacity, future pain and mental anguish, and future physical impairment were

excessive.

We affirm.

Background

Diamond Offshore owned and operated the Ocean Lexington, a drilling rig

located off the coast of Egypt in 2007-08. Williams, who had worked for

Diamond Offshore on two different occasions and in various capacities for

approximately a decade, was a mechanic on the rig. He worked on the rig in

2 alternating "hitches": twenty-eight days on the rig, followed by twenty-eight days

off.

On the afternoon of January 7, 2008, the day before Williams was scheduled

to return to the United States, one of the drillers informed him that a set of

elevators on the rig had failed and that he needed to repair it. 1 Specifically, the

driller told Williams that the rig was "going down" unless Williams repaired the

elevators. Williams testified that, to him, this directive meant, "By any means

necessary, fix it."

Williams worked on the elevators for about thirty to forty minutes. Williams

bent over at the waist to maneuver the elevators, which weighed several hundred

pounds, into his work area. Williams did not lift the elevators; instead, he

"scoot[ ed]" them around on the floor of the shop. While he worked on the

elevators, Williams felt a "sharp pain in [his] lower back after a few minutes."

After he finished working, Williams saw the doctor onboard the rig, who advised

him to rest. The next morning, Williams bent over while sitting on his bed and felt

discomfort in his back.

Because his back continued to hurt after he arrived home, Williams saw Dr.

Patrick Barrett, an orthopedic surgeon, ten days after the incident. Although he is

an independent physician and not a company doctor, Dr. Barrett has "seen patients

An "elevator" is a piece of machinery that lowers pipes into the drilling hole on a ng. 3 off and on over the years for" Diamond Offshore, and Diamond Offshore referred

Williams to Dr. Barrett after his injury in this case. Williams reported that he had

leg pain in addition to back pain. Williams also told Dr. Barrett that he had injured

his back on a rig in 2006, approximately two years before the incident at issue

here. Williams acknowledged at trial that he had had ongoing back pain since the

first incident, but that pain had "never stopped [him] from doing [his] job." 2

Upon seeing Williams, Dr. Barrett ordered an MRI of Williams's lumbar

spine. The MRI revealed a "small central herniation" at the L4-L5 vertebrae,

"degenerative changes at multiple levels," and a "very small central bulge" at the

L5-S 1 vertebrae. Dr. Barrett saw Williams again in March 2008 after

approximately six weeks of physical therapy. Williams had "rather significant pain

in the mid to lower lumbar area," and another MRI revealed a herniation at L 1-L2,

a central disc protrusion at L4-L5, and another disc protrusion at L5-S 1. In April

2008, Dr. Barrett performed a micro discectomy at L5-Sl to relieve Williams's

lingering leg pain. Dr. Barrett testified that this surgery alleviated Williams 's leg

pain, but Williams's back pain remained unchanged and "continue[d] to be a major

problem." Dr. Barrett's notes reflected that Williams was "simply unable to bend

2 The trial court also admitted MRI records dated December 5, 2005, before either of Williams's two onboard back injuries had occurred, which revealed "[ d]egenerative dis[ c] disease of the lumbar spine." 4 or stoop or lift more than about 20 pounds without his back bothering him quite a

bit."

In an attempt to relieve Williams's back pain, Dr. Barrett performed a fusion

surgery in February 2009. This surgery involved inserting screws and rods into

Williams's back. Dr. Barrett, who testified via video deposition taken in April

2012, nearly a year and a half before trial, stated that he had seen Williams one

month prior to his deposition and that Williams still had problems with the nerve

located next to the L5 vertebrae, which caused Williams's foot to drop and resulted

in Williams' s inability to raise his toes. Dr. Barrett testified that, in his opinion,

further surgery would probably not help relieve Williams's lingering back pain.

Dr. Barrett acknowledged Williams's pre-existing degenerative changes in his

back but testified that the incident at issue caused all of Williams's current medical

problems. Dr. Barrett stated that he would not release Williams to return to his

former career on an offshore rig, and he opined that Williams "would have a hard

time maintaining any kind of gainful employment due to his chronic pain, his

chronic neurological findings; and I would professionally consider him totally

disabled at this point." He further opined that, as a result of his chronic pain,

Williams would likely "have a hard time even sustaining sedentary type work

where he had to sit."

5 Dr. Jose Rodriguez, another orthopedic surgeon, testified that he reviewed

Williams's medical records but did not treat Williams. Dr. Rodriguez stated that, in

his opinion, "[t]he repetitive work that [Vvilliarns] was doing with some type of

lifting associated with it caused his ruptured disc." Dr. Rodriguez testified that,

after the fusion surgery, even if Williams was pain free, he would still restrict

Williams to lifting not more than thirty pounds regularly and fifty pounds

infrequently to avoid damaging the fusion. Dr. Rodriguez would also place

restrictions on standing, sitting, and walking for long periods of time, as all of

these actions place stress on the lumbar spine. Dr. Rodriguez agreed with Dr.

Barrett that Williams could not return to his pre-incident offshore work. He stated

that Williams could "do light-duty work if the tolerance to his [pain] allows him to

function through a whole day of work."

Dr. Rodriguez testified that Williams could potentially undergo another

surgery in the future to remove the screws and rods currently implanted in his

back, which would hopefully improve his pain by at least fifty percent. He

estimated that this procedure could cost up to $100,000. Dr. Rodriguez also

testified that, even if Williams undergoes this "hardware removal" surgery, he

would still have the same functional restrictions as before. He stated that Williams

will need pain medications and some kind of physical exercise regimen daily for

6 the remainder of his life, which could range in cost from $5,000 to $10,000 per

year.

Dr. Kenneth McCoin testified as Williams's economics expert. He testified

that he calculated Williams's past lost earning capacity, measured from the date of

the incident to the trial date, at $557, 793 and his future lost earning capacity at

$2,254,275. Dr. McCoin based his calculations on Williams's pre-incident annual

salary of $134,000, the growth rate in wages, the fringe benefits, such as health

insurance, the fact that Williams had received as a result of being employed, and

Williams's work-life expectancy. Dr. McCoin stated on cross-examination that the

"implicit assumption" in his calculations was that Williams would never return to

any kind of work. He acknowledged that if Williams did return to work, his

calculations would need to be reduced by the amount of Williams's new salary.

Williams no longer had tingling and numbness in his right leg after the first

surgery in April 2008, but he testified that his back pain had never gone away. He

stated that he had also developed a "foot drop problem," where one of his feet

drags and he can no longer walk straight even on carpeted floors. Williams

testified that, since the incident, he had tried to "live [his] life and do things," but

that he had not "held a job where [he] receive[s] a check from anyone."

In July 2011, Williams underwent a "Functional Capacity Evaluation" that

concluded that Williams could perform "medium level work." Diamond

7 Offshore's counsel asked Williams about this evaluation and about Dr.

Rodriguez's testimony that Williams could "lift 30 pounds on a frequent basis and

50 pounds on an occasional basis" ai1d whether Williams had attempted to find a

job within those particular restrictions. Williams responded that he had not and

further testified:

[I've] been going through back surgery, two back surgeries. I get injections all the time. My back hurts constantly. I just saw the doctor three weeks ago. He wants to do exploratory surgery on my back. It's not just my back. Over the last year the-they have the documentation to show you this-the nerves between my back and my foot are not communicating anymore; and I can't move my toes, just my big toe. My toes are curling up under me. It's letting my foot drop down, and it's progressively getting worse and worse. So, I've just been talking to the doctors. They-I'm really not wanting to have any more surgery. They can't really promise me it's going to do me any good, but that's where we're at at this time.

Williams also testified that he can bend over, sit for a long period of time, stand for

a long period of time, and work on cars, but that it hurts him to do all of these

things.

Williams further stated that he tries to work on his property with an

excavator that he owns. He testified that, for the most part, working with the

excavator is stable and that he uses it for about thirty minutes at a time. He stated:

I never said I couldn't work at all. That was the doctors or those other people. I've never stated I couldn't work at all. Anytime I said anything about that, I just said it hurts. I still do these things, all of these things. It just hurts me.

8 Williams testified that this type of work is not strenuous and that there is minimal

vibration with the excavator, although his back will start to hurt if he sits in the

excavator's seat for long periods of time.

Diamond Offshore's counsel asked Williams what kind of work he thought

he could do after the incident. Williams responded:

I don't know. If you're talking about me getting a job, I don't know how I would get a job. I take pain medication and muscle relaxers, and nobody's going to give you a job with that. I have bolts and rods in my back, and it hurts me. I don't know why anybody would hire me.

Williams testified that he "feel[s] terrible" and that he cannot enjoy life the way he

used to because he cannot do things like ride motorcycles and race cars and boats

and jet skis the way he did before the incident.

Several of Williams's friends and family members testified concerning the

impact that the incident had had on Williams. Williams presented testimony from

multiple witnesses that he had formerly been very active outdoors and with his

fourteen-year-old daughter, who often wants to do things that Williams can no

longer do, such as waterskiing and attending softball games. These witnesses

testified that there is "a lot of stress" on Williams's family after the incident. The

witnesses agreed that Williams tries to engage in the same activities that he used to

enjoy, but that he cannot participate for very long, and that he often looks

"defeated."

9 Williams's wife testified that since the incident Williams had been angry and

depressed "a lot" and "[r]eal agitated," that they argue, and that Williams "feels

like he's not worth what he used to be w01ih" because he can no longer provide for

the family or do the things he used to enjoy doing. She also testified that Williams

"still is miserable" and that Williams's injuries have affected his sleep schedule.

Now, Williams hardly ever sleeps at night and instead sleeps "all day."

Thomas Meunier, a vocational rehabilitation counselor, testified that he met

with Williams, performed several tests and evaluations of Williams, and reviewed

Williams's medical records, including the July 2011 functional capacity

evaluation, in arriving at a conclusion concerning whether Williams would be able

to return to work. Meunier testified that Williams's past work history involved

semi-skilled to skilled mechanic work, but that Williams did not have any

transferrable skills given the postural and other work restrictions now in place on

him after the incident. Meunier stated:

I don't think [Williams] has a residual capacity to maintain employment even at a lower-exertional level because of chronic pain of the medicals that I read from his treating physician. He, I believe, is motivated. I think he would be working if he could, but I don't think he's going to be able to successfully compete for employment. And I think the bigger problem he would have, even ifhe were able to secure some type of employment, would be able to maintain the employment, show up every day. So, I-I think that he has lost access to the competitive labor market, and he has a corresponding loss of earning capacity.

10 Meunier disagreed with the conclusion reached in the functional capacity

evaluation that Williams could do "medium level" work, pointing out that

Williams's ability to "stand and walk, bend, [and] stoop, are limited to an

occasional basis." Meunier also did not agree that Williams could return to

performing any skilled work, such as heavy equipment operation or mechanics, on

a stable and consistent basis. Furthermore, Meunier discounted the functional

capacity evaluation on the basis that it was two years old at the time of trial and

medical testimony indicated that Williams's condition had worsened since that

evaluation had been performed.

Bruce Brawner testified as Diamond Offshore's vocational rehabilitation

counselor. Brawner relied upon the functional capacity evaluation and opined that

Williams could likely seek employment as a dispatcher, a job involving light

mechanic work, or perhaps car sales or customer service. He researched the

median pay in Mississippi, where Williams lives, for these professions and

concluded that, if Williams found one of these jobs, Williams could potentially

make around $38,600 per year. Brawner testified that each of these jobs is

consistent with the physical restrictions that Dr. Rodriguez testified needed to be

applied to any of Williams's future jobs.

Dr. Kenneth Boudreaux, an economist, testified for Diamond Offshore

concerning potential economic loss sustained by Williams. Dr. Boudreaux testified

11 that he calculated Williams's past lost earning capacity as $504,045. With respect

to loss of future earning capacity, Dr. Boudreaux stated that Diamond Offshore's

counsel asked him to assume that Williams could earn roughly $3 8,600 per year in

the future. He calculated Williams's lost future earning capacity at $760,435. 3 Dr.

Boudreaux clarified that the figure for past plus future lost earning capacity

equaled $1.264 million.

Dr. Christopher Cenac, an orthopedic surgeon in Louisiana, testified as

Diamond Offshore's medical expert. Dr. Cenac reviewed Williams's medical

records and evaluated him in person in February 2012. Dr. Cenac agreed that

further relief from Williams's symptoms was not likely, even if he did undergo a

hardware-removal surgery in the future, and that Williams had reached maximum

medical improvement. Dr. Cenac noted that Williams has "post-surgical

scarring ... in the midline [of Williams's back] near the incision." Dr. Cenac also

testified, however, that based on the July 2011 functional capacity evaluation and

Williams's responses on the Oswestry pain questionnaire, which were consistent

with "patients that are either bed bound or exaggerating their symptoms," Williams

was employable in the future. He ultimately concluded that "hardware removal"

would be appropriate and that Williams "was employable with a medium level of

Dr. Boudreaux stated that the $760,000 figure represents the midpoint of a "reasonable" range of lost future earning capacity figures, with $668,000 at the lower end and $853,000 at the upper end. 12 physical activity based upon the findings noted on the [functional capacity

evaluation], subsequent to extensive vocational rehabilitative efforts."

At a pre-trial hearing and in written objections, Williams objected to the

admissibility of two pieces of evidence offered by Diamond Offshore. Williams

first objected to evidence that Diamond Offshore had, "during the first couple of

years of [Williams's] disability," paid Williams approximately eighty-five percent

of his former salary, totaling over $260,000. Williams argued that these payments

were part of a Diamond Offshore procedure "whereby the employee is paid a

portion of his salary as an 'advance' against any future settlement

agreement ... and then given the remaining 15% to 'make him whole' when he

recovers from his disability and returns to work." Williams argued that evidence of

these payments was inadmissible pursuant to Texas Rule of Evidence 408.

Williams stated that he would be willing to stipulate that Diamond Offshore was

entitled to a "post-verdict credit or offset of these payments."

Diamond Offshore argued that the payments did not constitute a settlement,

that it did not make the payments in attempt to persuade Williams to release any

claims against it, and that these payments were part of its standard procedure

whenever an employee suffered an injury. Diamond Offshore's counsel stated that

the company would "advance wages on [the employee's] salary to the point that

they receive 85 percent of whatever they were making before they got hurt."

13 Diamond Offshore argued that these payments were not classified as a settlement,

but rather as earnings upon which Williams paid taxes.

The trial court ruled that the evidence was inadmissible. The court agreed to

give Diamond Offshore a corresponding offset in the judgment, if the jury found in

favor of Williams, but it refused to let Diamond Offshore present evidence that it

had made these payments to Williams.

Williams also sought to exclude a post-incident surveillance video of him

taken in 2012, nearly five years after his injury occurred, by an investigator hired

by Diamond Offshore. Williams stated:

Along with showing him driving and walking in several locations, these surveillance videos contain views of the plaintiff engaged in various activities near and around his residence, including performing various repairs on his four-wheeler vehicle, operating his mini- excavator to clear some debris near his home, and certain activities involving some bending and lifting, activities which he has never denied, under oath or otherwise, that he has attempted and was able to perform (nor are inconsistent with his medical limitations).

He argued that the video has no impeachment value because he has never asserted

that he cannot do any of the activities depicted in the video. Williams further

argued that the prejudicial effect of the video far outweighed any probative value

that it might have and that the video could not serve as substantive evidence "since

such a minimal and random view of plaintiff's life cannot possibly be a fair

representation of his disabilities or abilities since his injury."

14 Diamond Offshore argued that the video consisted of surveillance footage

taken on three consecutive days in December 2012 and depicted Williams "with

evident ease to be seen 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." In the video, Williams

operates machinery "for an extended period of time" and repairs vehicles.

Diamond Offshore argued that the video was admissible for both impeachment

purposes and as substantive evidence relating to Williams's post-incident physical

condition.

The trial court ruled that Diamond Offshore "can 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." Diamond Offshore requested that the trial court revisit this

ruling on several occasions throughout the proceedings, including during Dr.

Rodriguez's testimony and after cross-examination of Williams, both of which,

Diamond Offshore's counsel argued, contradicted the contents of the video. The

trial court refused to admit the surveillance video.

The jury found that both Diamond Offshore and Williams were negligent

and that Diamond Offshore failed to furnish a seaworthy vessel. The jury

apportioned 30% fault to Diamond Offshore, 60% fault to the vessel Ocean

Lexington, and 10% fault to Williams. The jury awarded Williams $500,000 in

15 past physical pain and mental anguish, $3 .4 million in future physical pain and

mental anguish, $557,793 in loss of past earning capacity, $2,254,275 in loss of

future earning capacity, $250,000 in past physical impairment, $1.7 million in

future physical impairment, $250,000 in past disfigurement, $325,000 in future

disfigurement, and $440,000 in future medical care expenses.

The trial court entered judgment on the verdict in favor of Williams. The

final judgment stated:

Plaintiff Willie David Williams recover from Defendants Diamond Offshore Services Limited and Diamond Offshore Services Company, jointly and severally, the total sum of $8,512,068 as actual damages (which represents the total recovery less the ten percent (10%) of fault attributed to Willie David Williams by the jury, then less an offset of $197,293 reduction for the net advances paid by Defendants) ....

The trial court also awarded Williams pre- and post-judgment interest. This appeal

followed.

Exclusion of Evidence

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

excluded a post-incident surveillance video taken by an investigator hired by

Diamond Offshore that depicted Williams performing various outdoor activities

over the course of three days in December 2012. In its second issue, Diamond

Offshore contends that the trial court erroneously excluded evidence that, for

several years before trial, it paid Williams 85% of his pre-incident salary.

16 A. Standard ofReview

The admission or exclusion of evidence "is committed to the trial court's

sound discretion." Tex. Dep't ofTransp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).

A trial court abuses its discretion when it acts without reference to any guiding

rules or principles. U-Haul Int'!, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex.

2012); City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995). 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., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). We uphold a trial court's

evidentiary ruling "if there is any ground for doing so, even if the trial court did not

rely upon the proper ground and even if the defendant did not assert a proper

ground for excluding the evidence." K.J. v. USA Water Polo, Inc., 383 S. W.3d

593, 610 (Tex. App.-Houston [14th Dist.] 2012, pet. denied); see also State Bar

of Tex. v. Evans, 774 S.W.2d 656, 658 n.5 ("[E]ven where the trial court errs in

sustaining a specific untenable objection, an appellate court should uphold the

ruling ifthere is any other ground for doing so, even though not urged below.").

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

party must demonstrate (I) that the trial court committed error, and (2) that the

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

improper judgment. Hahn v. Love, 394 S.W.3d 14, 34 (Tex. App.- Houston [lst

17 Dist] 2012, pet. denied). "[A] successful challenge to evidentiary rulings 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. We generally do not

reverse a judgment based on an erroneous ruling on evidence 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, we review the entire record. Id.;

Hahn, 394 S.W.3d at 35.

B. Exclusion of Surveillance Video

Diamond Offshore first challenges the trial court's decision to exclude its

proffered post-incident surveillance video, an eighty-minute video that depicted

Williams performing various outdoor tasks, such as using his excavator to haul

debris and working on a vehicle, over the course of three days in December 2012.

It argues that the trial court erroneously determined that the surveillance video

could be used solely for impeachment purposes and that, instead, the video was

admissible as both substantive evidence relevant to the extent of Williams's

injuries and as impeachment evidence. Williams, however, contends that the

prejudicial effect of the "heavily edited" video substantially outweighs any

probative value, and it is, therefore, inadmissible under Rule 403. He also argues

that Diamond Offshore did not establish the authenticity of the video, as required

18 by Texas Rule of Evidence 901(a). See TEX. R. Evm. 901(a) ("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."). Finally, he argues that this evidence was cumulative. See

TEX. R. Evm. 403.

Texas courts have admitted post-accident surveillance videos depicting the

activities of injured plaintiffs in personal injury cases, but no Texas case addresses,

as a specific point on appeal, the admissibility and propriety of this evidence. 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; appellant plaintiff did not challenge

admissibility of video on appeal); Nat'! 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; appellant

did not challenge trial court's admission of remainder of video); Dunn v. Bank-Tee

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

whether surveillance video had been properly authenticated and stating that

appellants 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.- E l Paso 2002, no pet.) (considering surveillance video in factual

19 sufficiency review; plaintiff did not challenge admissibility of video). Both

Diamond Offshore and Williams thus rely on case law from other jurisdictions to

support their contentions.

In Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993), the

Fifth Circuit 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 therefore

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. The court concluded that evidence that ''would tend

to prove or disprove such losses" should be considered "substantive" evidence. Id.

The court also noted that Chiasson had testified at trial that she is able to engage in

her usual daily activities, but that she cannot do so "for too long of a period of

time" before she starts to feel pain. Id. The court doubted whether the surveillance

video at issue "discredits her testimony at all," but still ultimately held that, not

20 only did the video constitute substantive evidence, instead of merely impeachment

evidence, but that the importance of the video was "obvious."4

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

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

his accident, 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," and Baker argued, among other things, that the video "informed jurors

that he engaged in activities many people consider immoral." Id. The Fifth Circuit

held, 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 details regarding the

allegedly severe post-accident limitations Baker face[d]." Id. The court ultimately

concluded that the probative value of the video that contradicted Baker's witnesses

"weighs heavily against a hypothetical juror's moral aversion to gambling." Id

4 The precise issue in Chiasson was whether the trial court erred in admitting the surveillance video solely as impeachment evidence when, pursuant to Federal Rule of Civil Procedure 26(b)(1 ), which allows the "non-disclosure of evidence to be used solely for impeachment," Zapata had not disclosed the existence of the video to Chiasson pre-trial. 988 F.2d 513, 514 (5th Cir. 1993). Because the surveillance video at issue constituted substantive evidence, instead of simply impeachment evidence, the Fifth Circuit held that the trial abused its discretion "by allowing non-disclosure and admitting the tape into evidence." Id. at 518. 21 The court held that the trial court did not abuse its discretion by admitting the

surveillance video. Id.

In James v. Carawan, 995 So.2d 69 (Miss. 2008), the Mississippi Supreme

Court 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. In concluding that the trial court did

abuse 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 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.

22 Id. at 77-78; see also 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.l. 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).

Williams, in contrast, cites cases from other jurisdictions holding that the

trial court did not abuse its discretion in excluding post-accident surveillance

videos. In one line of cases from Illinois, the appellate court, in concluding that

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

videos, focused on the facts that the videotapes were edited and only showed the

plaintiff outside, "giv[ing] the impression that [the] plaintiffs activity is constant"

and that the plaintiff "can sustain labor-intensive activities over a period of time

without rest or without experiencing pain." See Carroll v. Preston Trucking Co.,

812 N.E.2d 431, 435-36 (Ill. Ct. App. 2004); see also Donnellan v. First Student,

Inc., 891 N.E.2d 463, 478 (Ill. Ct. App. 2008) (relying on Carroll to affirm

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

23 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, 1098

(La. Ct. App. 2000), for the proposition that the trial court properly excludes a

post-accident surveillance video when the injured plaintiff testifies that she can

perform the activities depicted in the video and when the video does "not fairly

indicate whether [the plaintiff] did experience pain after engaging in these

activities." See also Orgeron v. Tri State Road Boring, Inc., 434 So. 2d 65, 68-69

(La. 1983) (noting, in holding that workers' compensation carrier had "no

reasonable basis for terminating benefits" even though videotape existed of

claimant performing physical labor at construction sites after injury, that "evidence

in the form of moving pictures or videotapes must be approached with great

caution because they show only intervals of the activities of the subject, they do

not show rest periods, and do not reflect whether the subject is suffering pain

during or after the activity").

Here, Diamond Offshore offered a surveillance video that depicts Williams

performing various activities outside his house, including using his excavator to

haul away scrap materials and repairing a vehicle. The hour-long video contains

footage obtained over three consecutive days in December 2012. The video only

reflects Williams's outside activities and does not reflect what he did when he was

not outside or whether he was in pain as a result of his activities. During his

24 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's friends and family members

testified to essentially the same facts.

A trial court's evidentiary rulings are committed to the court's "sound

discretion," and we must uphold the court's ruling ifthere is any basis for doing so.

See Able, 35 S.W.3d at 617; USA Water Polo, 383 S.W.3d at 610. Here, the trial

court did not state a reason for its ruling; instead, it merely stated at the pre-trial

hearing that Diamond Offshore could "keep [the surveillance video] in your

reserve bank for impeachment" and that, if Williams "opens the door, then we'll

take a look at it." When Diamond Offshore offered the video after Dr. Rodriguez's

testimony, the court stated, "Ruling stands the same," and when Diamond Offshore

offered the video after cross-examination of Williams, the court stated, ''No, not

admitting," without providing a rationale. No Texas case squarely addresses the

issue present here-the admissibility of post-accident surveillance videotapes as

either substantive or impeachment evidence-and cases from other jurisdictions

have emphasized the trial court's discretion in ruling on the admissibility of such

evidence, upholding trial courts' rulings admitting post-accident surveillance

videos and upholding rulings excluding this evidence. In the absence of authority

25 binding on this Court, we cannot conclude that the trial court abused its discretion

in excluding the post-accident surveillance video offered by Diamond Offshore.

The trial court could have reasonably determined that the proffered video, which

contained clips from three different days of surveillance edited together into one

continuous hour-long video and depicted Williams performing activities that he

admitted that he could do, albeit with pain later, created an impression that

Williams could engage in physical activity for long periods of time without

needing rest and without apparent pain and thus that the prejudicial effect of the

video outweighed the video's probative value. See Donnellan, 891 N.E.2d at 478;

Carroll, 812 N.E.2d at 435-36; Quinn, 774 So. 2d at 1098; see also USA Water

Polo, 383 S.W.3d at 610 (stating that we uphold trial court's evidentiary rulings "if

there is any ground for doing so, even if the trial court did not rely upon the proper

ground and even if the defendant did not assert a proper ground for excluding the

evidence"). We therefore hold that the trial court did not abuse its discretion in

excluding the surveillance video proffered by Diamond Offshore.

We overrule Diamond Offshore's first issue.

C. Exclusion of Salary Payments

Diamond Offshore also challenges the trial court's exclusion of evidence

that, for several years pre-trial, Diamond Offshore paid Williams 85% of his pre-

incident salary, totaling over $260,000. Diamond Offshore argues on appeai that

26 excluding this evidence left the erroneous impression with the jury that Williams

had no income to provide for his family during the years between the incident and

the trial, that Diamond Offshore "left [Williams] high and dry during his

recovery," and that Diamond Offshore did not care about its employees, which

caused the jury to use the compensatory damages awards to punish Diamond

Offshore. The trial court excluded the evidence but noted on the record that, if the

jury returned a verdict in Williams's favor, the court would offset the damages

award by the amount that Diamond Offshore had previously paid to Williams. The

trial court ultimately discounted the award to Williams by $197,253 as a result of

"net advances" paid to Williams by Diamond Offshore.

Assuming, without deciding, that the trial court erred when it excluded

evidence that Diamond Offshore had paid Williams 85% of his pre-incident salary,

Diamond Offshore has not demonstrated that this exclusion constitutes reversible

error. See Able, 35 S.W.3d at 617 (holding that successful challenge to evidentiary

ruling generally requires complaining party to show judgment turned on excluded

evidence); Hahn, 394 S.W.3d at 34 (stating that, to be reversible, error must be

reasonably calculated to, and probably did, cause rendition of improper judgment).

As Diamond Offshore acknowledges, the trial court offset the ultimate damage

award in the final judgment to account for the amounts paid to Williams.

27 Diamond Offshore's arguments of harm as it relates to the exclusion of these

payments are, however, entirely speculative. There is no indication in the record

that the jury inflated one of the damages awards in an attempt to punish Diamond

Offshore for a misperception that Diamond Offshore abandoned Williams and left

him in a precarious financial situation prior to trial. Instead, the record reflects that

Williams underwent two surgeries as a result of the incident, that he suffers from

"constant" back pain and likely will for the rest of his life, that he suffers from

progressive "foot drop," that he can no longer engage in outdoor activities and

activities with his daughter due to his chronic pain, and that he will likely be

unable to work even in "light" or sedentary jobs in the future due to his pain, all of

which, as we explain further below, justifies the jury's damages awards. We

conclude that Diamond Offshore has not demonstrated that the trial court's

exclusion of evidence that Diamond Offshore paid Williams 85% of his pre-

incident salary "was reasonably calculated to, and probably did, cause rendition of

an improper judgment." Hahn, 394 S.W.3d at 34. We hold that the trial court did

not commit reversible error by excluding this evidence.

We overrule Diamond Offshore's second issue.

Sufficiency of the Evidence of Damages

In its third issue, Diamond Offshore challenges the sufficiency of the

evidence to support the jury's awards for past and future disfigurement, future

28 medical care expenses, loss of future earning capacity, future physical pain and

mental anguish, and future physical impairment. 5

Texas courts of appeals have the power to review the excessiveness of

damage awards and to order remittitur in Jones Act cases. Maritime Overseas

Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). We must make our own

"detailed appraisal of the evidence bearing on damages." Id.

The standard of review for an excessive-damages complaint in a Jones Act

case is factual sufficiency of the evidence. Id. In reviewing a challenge to the

factual sufficiency of the evidence, we "must consider and weigh all of the

evidence and should set aside the judgment only if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust." Arias v.

Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.-Houston [1st Dist.] 2007, pet.

denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam)); see

also Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (same). The

fact-finder is the sole judge of the witnesses' credibility, and it may choose to

believe one witness over another, and a reviewing court may not impose its own

opinion to the contrary. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.

2005); Arias, 265 S.W.3d at 468; see also Lanier v. E. Founds., Inc., 401 S.W.3d

5 We note that Diamond Offshore does not challenge on appeal the sufficiency of the evidence to support the jury's finding that Diamond Offshore was negligent and that its negligence "was a cause, in whole or in part," of Williams's injuries. 29 445, 455 (Tex. App.-Dallas 2013, no pet.) ("When we review the evidence, we

may not reweigh it and set aside the verdict merely because we feel a different

result is more reasonable."). Because it is the fact-finder's province to resolve

conflicts in the evidence, we assume that it resolved all such conflicts in favor of

the verdict if reasonable people could do so. City of Keller, 168 S.W.3d at 819;

Arias, 265 S.W.3d at 468.

The jury generally has great discretion in considering the evidence relevant

to the issue of damages. See Lanier, 401 S.W.3d at 455 (citing McGalliard v.

Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986)); Tagle v. Galvan, 155 S.W.3d 510,

518 (Tex. App.-San Antonio 2004, no pet.) ("In assessing personal injury

damages, the jury has wide latitude in determining the amount of the award.").

"The process of awarding damages for amorphous, discretionary injuries such as

pain and suffering is inherently difficult because the alleged injury is a subjective,

unliquidated, nonpecuniary loss." Id. The element of pain and suffering is "not

subject to precise mathematical calculations or objective analysis and is

particularly within the province of the jury to resolve and to determine appropriate

amounts." Id. "Once the existence of some pain, mental anguish and

disfigurement has been established, there is no objective way to measure the

adequacy of the amount awarded as compensation, which is generally left to the

discretion of the fact finder." Figueroa v. Davis, 3i8 S.W.3d 53, 62 (Tex. App.-

30 Houston [1st Dist.] 2010, no pet.) (quoting Pentes Design, Inc. v. Perez, 840

S.W.2d 75, 80 (Tex. App.-Corpus Christi 1992, writ denied)).

Issues such as physical impairment are necessarily speculative, "and it is

particularly within the jury's province to resolve these matters and determine the

amounts attributable thereto." Lanier, 401 S.W.3d at 455; Figueroa, 318 S.W.3d

at 62 ("The amount of damages awarded for pain and suffering and disfigurement

are necessarily speculative and each case must be judged on its own facts."). To

recover damages for physical impairment, "the effect of any physical impairment

must be substantial and extend beyond any pain, suffering, mental anguish, lost

wages or diminished earning capacity." Doctor v. Pardue, 186 S.W.3d 4, 18 (Tex.

App.-Houston [1st Dist.] 2005, pet. denied) (quoting Golden Eagle Archery, Inc.

v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003)). The jury may consider "loss of

enjoyment of life" as a factor in assessing damages for physical impairment. Id.

Courts have defined disfigurement as "that which impairs the appearance of

a person, or that which renders unsightly, misshapen or imperfect, or deforms in

some manner." Figueroa, 318 S.W.3d at 64 (quoting Pardue, 186 S.W.3d at 18).

The fact that the disfigurement, such as a scar, is located underneath clothing and

may not generally be visible, does not render disfigurement non-compensable. See

Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 673 (Tex. App.-Texarkana

1999, pet. denied) (holding that "small" surgical scar located on plaintiffs lower

31 back and hip that was covered by clothing was compensable). Future

disfigurement is "necessarily speculative," and "there is no mathematical yardstick

by which one can measure damages for it." Figueroa, 318 S.W.3d at 64 (quoting

Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 494 (Tex. App.-Houston • [14th Dist.] 1989, no writ)). Proof of additional scarring or deforming is not

required to recover damages for future disfigurement, although it may be

considered as a factor in determining damages. Hopkins Cnty. Hosp. Dist. v. Allen,

760 S.W.2d 341, 344 (Tex. App.-Texarkana 1988, no writ). Recovery for future

disfigurement includes recovery for future embarrassment caused by the

disfigurement. Id.

The Texas Supreme Court has defined "mental anguish" as a "relatively high

degree of mental pain and distress" that is "more than mere disappointment, anger,

resentment or embarrassment." Parkway Co. v. Woodruff, 901 S.W.2d 434, 444

(Tex. 1995). To survive a sufficiency challenge, the plaintiff must have introduced

direct evidence of the nature, duration, and severity of his mental anguish,

establishing a substantial disruption in his daily routine. Id.; Finley v. P. G., 428

S.W.3d 229, 235 (Tex. App.-Houston [1st Dist.] 2014, no pet.) ("[A]n award of

mental anguish damages may be supported by some evidence of 'a high degree of

mental pain and distress' that is 'more than mere worry, anxiety, vexation,

embarrassment, or anger."'). If compensabie mentai anguish has been estabiished,

32 fixing the exact amount of damages is "generally left to the discretion of the fact

finder," although the amount must be "fair and reasonable compensation." Finley,

428 S.W.3d at 235 (quoting Figueroa, 318 S.W.3d at 62). The injured party can

establish mental anguish through his own testimony explaining how he felt and

how the injury disrupted his life. Tagle, 155 S.W.3d at 519.

Loss of future earning capacity is the plaintiffs diminished capacity to earn

a living after trial. Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 35 (Tex.

App.-Tyler 2003, pet. denied). Proof of lost earning capacity is always uncertain

and is left largely to the jury's discretion. Rigdon Marine Corp. v. Roberts, 270

S.W.3d 220, 232 (Tex. App.-Texarkana 2008, pet. denied). To support an award

of damages for loss of future earning capacity, the plaintiff must introduce

evidence sufficient to allow the jury to reasonably measure earning capacity in

monetary terms. Tagle, 155 S.W.3d at 519. The plaintiff can introduce evidence

of past earnings; his stamina, efficiency, and ability to work with pain; the

weaknesses and degenerative changes that will naturally result from the plaintiffs

injury; and the plaintiffs work-life expectancy. Id. The plaintiff must introduce

some evidence that he had the capacity to work prior to the injury and that his

capacity was impaired as a result of the injury. Id.

Similarly, courts have held that the award of future medical expenses rests

within the jury's sound discretion. Rosenboom Mach. & Tool, Inc. v. Machala,

33 995 S.W.2d 817, 828 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). The jury

can make its determination of the amount of future medical expenses based on the

injuries suffered, the medical care rendered before trial, the progress toward

recovery under the treatment received, and the condition of the injured party at the

time of trial. Id. To sustain an award of future medical expenses, the plaintiff must

present evidence establishing that, in all reasonable probability, future medical care

will be required and the reasonable cost of that care. Id.; see Nat 'l Freight, Inc. v.

Snyder, 191S.W.3d416, 422 (Tex. App.-Eastland 2006, no pet.). The plaintiff is

not required to establish such costs through expert testimony. See Snyder, 191

S.W.3d at 426. Because '"an award of future medical expenses ... lies largely

within the factfinder's discretion,' appellate courts are especially hesitant to disturb

a fact-finder's conclusion in this regard." Finley, 428 S.W.3d at 234; Antonov v.

Walters, 168 S.W.3d 901, 908 (Tex. App.-Fort Worth 2005, pet. denied)

("Because issues such as life expectancy, medical advances, and the future costs of

products and services are, by their very nature, uncertain, appellate courts are

particularly reluctant to disturb a jury's award of these damages.").

A. Disfigurement

Diamond Offshore contends that legally insufficient evidence supports the

jury's award of $575,000 for past and future disfigurement, or, in the alternative,

34 that the award is excessive. Diamond Offshore contends that no witness testified

about any external scarring and thus no evidence supports the disfigurement award.

As Williams points out, however, Diamond Offshore's own medical expert,

Dr. Cenac, testified that, as a result of his two back surgeries, Williams has some

"post-surgical scarring" near the incision on his back. The fact that this scar is in a

location of the body that is usually covered up by clothing does not preclude a

disfigurement award. See Tinsley, 998 S.W.2d at 673 (holding that evidence of

"small" surgical scar located on plaintiffs back and hip constituted compensable

disfigurement award).

Furthermore, "disfigurement" is not limited to scarrmg, but instead

constitutes anything that "impairs the appearance of a person, or that which renders

unsightly, misshapen or imperfect, or deforms in some manner." Figueroa, 318

S.W.3d at 64 (quoting Pardue, 186 S.W.3d at 18). Multiple witnesses, including

Williams himself, testified that he now suffers from "foot drop" due to nerve

damage from the injury, which has impaired his ability to extend several of his toes

and raise his right foot when he walks. As a result, his foot "drags" when he

walks, and he walks with a noticeable limp. Dr. Barrett testified that Williams's

"foot drop" problem is "progressive." We conclude that this testimony supports the

jury's decision to award damages for past and future disfigurement. See USX Corp.

v. Salinas, 818 S.W.2d 473, 489 (Tex. App.-San Antonio 1991, writ denied)

35 (holding that sufficient evidence supports disfigurement award when plaintiff

presented evidence that he "cannot stand straight" and, due to injury, walks "with a

flat-foot stiff gait").

Diamond Offshore also cites three cases for the proposition that the

disfigurement award in this case was "too high by an order of magnitude," but, in

each of the three cases Diamond Offshore cited, the appellate court simply

affirmed the damages award. See Allen, 760 S.W.2d at 344 (affirming $50,000

future-disfigurement award); Nw. Mall, Inc. v. Lubri-lon Int'/, Inc., 681 S.W.2d

797, 804 (Tex. App.-Houston [14th Dist.] 1984, writ ref d n.r.e.) (affirming

$25,000 past-disfigurement award and $30,000 future-disfigurement award);

Pedernales Elec. Co-op., Inc. v. Schulz, 583 S.W.2d 882, 886 (Tex. Civ. App.-

Waco 1979, writ ref d n.r.e.) (affirming $4,000 disfigurement award). The fact

that the appellate courts in each of these cases did not find a smaller disfigurement

awards to be excessive does not support the conclusion that the disfigurement

awards in this case-$250,000 in past disfigurement and $325,000 in future

disfigurement-are excessive. Awarding damages for future disfigurement is

"necessarily speculative," and "there is no mathematical yardstick by which one

can measure damages for it." Figueroa, 318 S.W.3d at 64. Due to the speculative

nature of a disfigurement damages award, courts generally leave the adequacy of

the amount of tht: award to the discretion of the jury. See id. at 62. We conciude

36 that the evidence supporting past and future disfigurement is not so weak as to

render the disfigurement awards excessive or manifestly unjust.

B. Future Medical Expenses

Diamond Offshore next contends that the jury's award of $440,000 for

future medical expenses is excessive because evidence of future medical expenses

that Williams "could or might incur is no evidence of recoverable expenses that he

'will require in the future."'

Dr. Barrett, Williams's treating physician, testified that he does not have any

future surgeries scheduled for Williams, and Williams testified that he is "really

not wanting to have any more surgery" because none of his doctors can promise

him that another surgery will help him. However, Dr. Rodriguez testified that

Williams was a candidate for further surgery to remove the screws and rods in his

back, and Dr. Cenac, Diamond Offshore's medical expert, testified that this

hardware-removal surgery ''would be appropriate." Dr. Rodriguez testified that

medical bills for this surgery could range from $80,000 to $100,000. Williams

testified that he saw his doctor three weeks before trial and that his doctor wanted

to perform exploratory surgery on his back, although he had not committed to

having any additional surgeries. Dr. Rodriguez also testified that Williams will

need daily pain medication and physical therapy for the rest of his life, and he

estimated that costs for this care would range from $5,000 to $10,000 per year.

37 The jury thus had evidence before it that, even though Williams' s preference

at the time of trial was not to have another surgery, a hardware-removal surgery

was medically indicated and ''-would be appropriate." Williams was not required to

establish his future medical expenses with absolute certainty; instead, he needed to

present evidence "that in all reasonable probability, future medical care will be

required and the reasonable cost of that care." See Machala, 995 S.W.2d at 828.

The jury, in its sound discretion to award damages for future medical expenses,

could have reasonably concluded that, given the degenerative nature of Williams's

conditions, Williams, "in all reasonable probability" will require pain medication

and physical therapy for the remainder of his life and may elect to undergo further

surgery to alleviate his pain. See id. (holding that award of future medical

expenses "rests within the sound discretion of the jury"). We hold that the jury's

award of $440,000 in future medical expenses was not excessive.

C. Lost Future Earning Capacity

Diamond Offshore next contends that the jury's award of $2,254,275 for lost

future earning capacity is excessive because it rests on the assumption that

Williams will never be able to work again, and factually insufficient evidence

supports that assumption.

Dr. Kenneth McCain, Williams's economic expert, testified that he arrived

at his calculation of $2,254,475 for Wiiliams's ioss of future earning capacity

38 based on the assumption that Williams will not return to work in the future . Dr.

Barrett testified unequivocally that Williams could not return to his pre-incident

offshore work, a conclusion with which all of the other experts agreed. Dr. Barrett

further testified that, as a result of his chronic pain, Williams likely would not be

able to maintain any type of gainful employment, even sedentary-type work, and

he also stated that he considered Williams to be "totally disabled." Dr. Rodriguez

testified that Williams might be able to perform "light duty" work, but he also

provided the caveat that this was true only if "the tolerance to [Williams's pain]

allows him to function through a whole day of work." Thomas Meunier, a

vocational rehabilitation counselor, testified that even if Williams could secure

employment, he likely would not be able to maintain it given his chronic pain. In

reaching his conclusion, Meunier considered the functional capacity evaluation

that Williams had undergone, which indicated that Williams could perform

"medium" level work, but he ultimately discounted it because it was two years old

and evidence indicated that Williams's condition had worsened since that

evaluation. Williams himself testified that he tries to do work around his property,

including using his excavator and repairing vehicle, and he can engage in these

activities to an extent, but it hurts him to do so, and he doubted his ability to

perform a full day of work every day. He did not believe that any employer would

39 hire him given his pain levels and the pain medication and muscle relaxers that he

must take.

To suppOii its contention that factually insufficient evidence supported the

assumption that Williams could not return to work, Diamond Offshore focuses on

the functional capacity evaluation, Williams' s testimony that he could still work

but that it hurt him to do so, and Williams's testimony concerning activities that he

undertakes even after the incident. As stated, however, Williams presented the

testimony of three expert witnesses-two doctors and a vocational rehabilitation

counselor-that Williams would probably not be able to sustain employment at

even a light or sedentary level due to his chronic pain problems. We conclude that

factually sufficient evidence supports the assumption that Williams will not be able

to return to the workforce and thus supports Dr. McCoin's calculation of

$2,254,475 in loss of future earning capacity damages. See Rigdon Marine Corp.,

270 S.W.3d at 232 (holding that loss of future earning capacity is "always

uncertain" and is "left largely to the jury's discretion").

D. Future Pain and Mental Anguish

Diamond Offshore also challenges the jury's award of $3.4 million in

damages for future pain and mental anguish, focusing primarily on the fact that the

jury was instructed that it could only award damages for the "portion of the

plaintiffs condition resuited from the aggravation" of a pre-existing condition, and

40 the medical evidence indicated that Williams, at the time of the incident, already

had a "diseased" back.

Diamond Offshore is correct that the record includes evidence that Williams

had injured his back prior to the incident at issue in this case and that the MRI

Williams underwent when he first saw Dr. Barrett after the incident in January

2008 revealed degenerative problems with the discs in his back. However, Dr.

Barrett testified that the January 2008 incident on the Ocean Lexington caused all

of Williams's current medical problems, including his foot drop and ongoing back

pain, and necessitated both of the surgeries that Williams has needed since the

incident. Specifically, Dr. Barrett testified:

I think all of [Williams' current medical conditions] are caused by the injury that [Williams] described to me occurring 10 days or so before I first saw him. He certainly undeniably had preexisting degenerative changes but, also, in my opinion, undeniably there was a significant damage that led to the evaluations which led to the micro discectomy which led to basically a disruption of his back mechanics which led to our decision to try to improve those with the fusion. And all of this, in my opinion, relates back to this [in ljury.

Williams testified that he gets pain injections "all the time," that his back "hurts

constantly," and that his foot drop is "progressively getting worse and worse."

Both Dr. Barrett and Meunier characterized Williams's pain as "chronic." Several

of Williams's friends and family members testified about seeing Williams in pain

after the incident. Multiple witnesses, including Williams' s wife, testified that he

is "depressed" and "miserable" since the incident, that he has experienced a loss of 41 self-worth, and that Williams hardly ever sleeps through the night and instead

sleeps "all day."

As it did in attacking the disfigurement award, Diamond Offshore compares

the future pain and mental anguish award in this case to the award in other personal

injury cases and argues that "[i]n light of other verdicts," the award in this case is

"plainly excessive." Diamond Offshore contends that when an award of future

pain and mental anguish exceeds $1 million, "the injury is usually catastrophic."

Once again, however, in all of these cases, the appellate courts found the damage

awards to be within the jury's wide discretion in awarding damages and affirmed

the awards. Diamond Offshore cites no cases in which an appellate court found the

future pain and mental anguish award to be excessive. Simply because an

appellate court affirmed a $1 million future pain and mental anguish award as not

excessive in a "catastrophic" injury case does not mean that the jury's award in this

case is excessive or falls outside the jury's wide discretion in awarding damages.

See, e.g., Rentech Steel, L.L.C. v. Teel, 299 S.W.3d 155, 165-67 (Tex. App.-

Eastland 2009, pet. dism'd) (affirming, among other awards, award of $1 million

for future pain and suffering and award of $300,000 for future mental anguish in

case in which sixteen-year-old boy's hands were "degloved" following accident

with steel roller machine).

42 Here, Williams presented evidence that he is in constant pam, that his

condition, particularly his "foot drop," is getting worse, that he is likely to be in

pain for the rest of his life, that he suffers from depression and a loss of self worth

following the incident, and that he can no longer engage in the activities he used to

enjoy to the extent and with the frequency that he used to engage in them before

the incident. We conclude that the jury's award of $3.4 million for future pain and

mental anguish is not excessive. See Figueroa, 318 S.W.3d at 62 (noting that

damages for pain and suffering are "necessarily speculative" and that each case

should be judged on own facts); Tagle, 155 S.W.3d at 518 (stating that pain and

suffering is "not subject to precise mathematical calculations or objective analysis

and is particularly within the province of the jury to resolve and to determine

appropriate amounts").

E. Future Physical Impairment

Finally, Diamond Offshore challenges the jury's $1.7 million award for

future physical impairment as excessive.

One of the primary considerations in awarding damages for future physical

impairment is the plaintiffs loss of enjoyment of life. See Pardue, 186 S.W.3d at

18. Here, Williams explicitly testified:

I am, in fact, hurt real bad. I hurt on a daily [basis]. . . . I know I feel terrible. Just doing the little things I do hurts me. I can't enjoy life like I used to. I mean, I was always active. I've had motorcycles and race cars and boats and jet skis. I was [into] everything. You know, a 43 lot of that is-I still-still do those things-or some· of those things but not-not at the extent I used to.

Williams testified that he tries to keep up with his favorite activities, such as

working with his excavator, repairing vehicles, hunting, being outdoors with his

daughter, and going to his daughter's softball games, but that it causes him pain to

engage in these activities and that he can no longer do these activities like he used

to do. Several of his friends and family members testified and related specific

examples, and they also testified concerning the changes in Williams's personality

as a result of being unable to participate in and enjoy life the way he used to do.

Williams also presented medical testimony that his condition is likely to get

progressively worse as he ages, further limiting his ability to be active.

Testimony at trial indicated that Williams, who was forty-four at the time of

trial, was expected to live another thirty-four to thirty-five years. Diamond

Offshore has again cited case law in which plaintiffs with "debilitating injuries"

did not receive as high an award for future physical impairment as Williams did,

but, again, these cases do not support the proposition that the jury's award in this

case was excessive. We conclude that, in this case in which there is clear evidence

that Williams cannot live his life the way that he used to, the jury's award of $1.7

in damages for future physical impairment is not excessive.

We overrule Diamond Offshore's third issue.

44 Conclusion

We affirm the judgment of the trial court.

Sherry Radack Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Justice Keyes, dissenting.

45 Tab E Court of Appeals Dissenting Opinion Opinion issued July 21, 2015

Court of appeals For The

jfirst l!istritt of tiexas

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 pennanent 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 l 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.

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 rv1RI performed in December 2005 as part of pre-employment screening

had indicated I.hat Wiiiiams had bujging discs and ''l d Jegenerative disc d is~ase 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 mm1-

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 plaintiffs 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 eould "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 Otlshore 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 m

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. Ev10. 402, 61

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

'"TEX. R. Evm. 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. Evm. 40L 61 TEX. BJ. 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

Effective April L 2015, the Texas Supreme Court adopted amendments ttJ the Texas Rules of Evidence. 78 TEX. BJ. 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 mles, 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.

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

(hereinafter, "TEX. R. Evm. 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 refd n.r.e.).

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

balancing test '1o 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]estirnony 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. A--JcShane, 239 S.W.3d 231, 234 (Tex. 2007_) (per curiarn).

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 1 an emotional one.'' Cook v. Sabio Oil & Gas, Inc .• 972

S. W.2d 106, l 11 (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 ofTransp. 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. Set! Hahn v. Love, 394 S.W.3d 14, 34 (Tex. App.-Houston

[1st Dist] 2012, pet. denied). ·'[A J 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. ld.; 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. Sec Huston

v. United Parcel Scrv., inc., 434 S.W.3d 630, 642 (Tex. App.-Houston [1st DistJ

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'/ 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-Tee 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, howe.ver, 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. Admissibili"ty of sun•eil/ance videos as substantive, probative evidence

Williams argues that the surveillance video was not admissible because it

was not substantive evide.nc~, lacked impeachment value. and was more prejudicial

than probative. I disagroee with all of these obje.ctions. I would follow the courts in

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

vis~a-vis its probative value. in order to determine its admissibility under Rule 403.

lO 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.'' ld 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 obs~rved 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 2 Chiasson. Id.

The Fifth Circuit affirmed its Chiasson reasonmg 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

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 lvfarine Corp., 988 F.2d 513, 515 (5th Cir. 1993). The question before the Fifth Circuit was whethe-r 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 !he 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 plaintiffi 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 necessiry 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 :tacts.

Here, Williams sought da1nages 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 .3 d

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 [hisJ 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 l l L 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 Jvlembership 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; thal the video is clearly admissible, relevant evidence under Rule 402, and

lh~ triai coun erred in exciuding it. See TEX. K. t:VID. 402 (''All relevant evidence

16 is admissible, except as other'Nise provided by Constitution, by statute, by these

rules, or by other rules prescribed pursuant to statutory authority."); TEX. R. Ev10.

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.

] 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, l 64 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 c-ase from Illinois, the appellate court focused on the

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

outside, thus, in its view, «giv[ing] the impression that [the] plaintiffs 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 C'o., 812 N.E.2d 431, 435-36 (Ill. App.

Ct. 2004); see also Donnellan v. First Student. Inc., 891N.E.2d463, 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 plaintiffs]

testimony." Id.

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

"'heavily edited" video substantially outweighs any probative vulue, 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

videographer, 1fhe 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 SoutiHo,

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

Williams would have had the opportunity to cross-examine Souti11o concerning the

circurmstances under which the video was made. Moreover, the video plainly 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 Fi~h 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 .Jd 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; TC"'A 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 o[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 ciaims.:' See TEX. R. EvID. 9Ul{a), 61 TEX. BJ. 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."). ln 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 [l1J. 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 ( l) 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,.' 1 thus "effectively supply[ing] the predicate

for the video's admission by revealing that its content was an accurnte 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. Evrn. 90l(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. Evrn. 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

24 [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 KY., 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 lre

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

a video recording of WilJiams 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

25 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 tum to whether the

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

pam 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 iong-time offshore rig worker who had a history of degenerative ch(lnges in his

26 back 1 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, 1 would hold

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

from evidence. 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 toi 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 Otfshore'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.