National Oil Well Varco, LP and Kenneth Beauford v. Elmer Sanchez (No. 08-23-00096-CV; February 9, 2024) arose from a rear-end collision in which company truck rear-ended Plaintiff’s vehicle. After declining medical assistance at the scene, Plaintiff proceeded to a birthday dinner. The following day he reported soreness and tingling in his hand, but waited until two months after the accident to seek medical treatment. His treating physician recommended back surgery and ongoing treatment. In January 2018 Plaintiff filed suit against the employee driver and the employer, assserting negligence and seeking past and future economic and noneconomic damages. The parties agreed to and the court approved a discovery control order requiring them to file all discovery requests by January 7, 2022, and to be trial ready by February 25, 2022. The court set a trial date of January 23, 2023.
Just 27 days before trial, the employer served its second amended responses to discovery requests that—for the first time—disclosed the names and contact information of two persons knowledgeable about a surveillance video of Plaintiff record on September 21, 2022. The video purported to show Plaintiff performing work tasks that he claimed he could not longer perform without extreme pain. Plaintiff filed a motion to exclude the witnesses and the video as untimely disclosed under Texas Rule of Civil Procedure 193.6(a). For some reason, the employer did not serve a written response to the motion but waited until its cross-examination of Plaintiff at trial to try to get the video admitted to impeach Plaintiff’s testimony. Without viewing the video, the trial court denied the request and, when the employer tried to admit the video through its expert witness, denied it again. The jury found for Plaintiff and awarded more than $500,000 in damages, including $140,000 in past pain and anguish, $70,000 in past medical expenses, and $280,000 in future medical expenses. Defendants appealed, asserting that the trial court abused its discretion by excluding the surveillance video.
In an opinion by Chief Justice Alley, the court of appeals affirmed. The primary issue was whether the video and the names of the two witnesses who made it were timely produced. The court held that they were not, both because they were produced after the January 7 discovery deadline and less than 30 days before trial (under Rule 193.5, a response made less than 30 days before trial is presumed not to be made reasonably promptly). At this point, the inquiry shifts to whether good cause existed for the late disclosure or the failure to timely respond would unfairly surprise or prejudice the other parties. The problem was, however, that Defendants did not make any good cause or unfair surprise or prejudice arguments at the trial court, so the court of appeals could not consider those arguments on appeal. Assuming, then, that the trial court implicitly ruled on those issues in its order excluding the evidence, the court concluded did not abuse its discretion, stating that thefact that the employer claimed to have produced the video “by Dropbox” before the deadline (a claim Plaintiff’s counsel contradicted with email evidence) and then failed to provide the video to Plaintiff or the trial court even when it twice tried to admit the video hardly supported any good cause or unfair surprise or prejudice argument.
As to excluding the evidence for impeachment purposes, the court held that the version of Texas Rule of Civil Procedure 194 that existed before the 2021 amendments contained no exception from the requirement of production for evidence “to be used solely for impeachment,” as Federal Rule 26(a)(3) did (Rule 194 now tracks the federal rule). Similarly, with respect to Defendants’ argument that the trial court should have admitted the video as part of its expert’s testimony, the court held that since the video was not timely disclosed, it was no abuse of discretion to exclude it. The court noted further that even in its late disclosure of the video, Defendants neglgected to “mention the video surveillance as a basis for the doctor’s opinions or that he had reviewed it.” This problem undercut Defendants’ argument and, unfortunately for Defendants, raised the specter of gamesmanship and trial by ambush.
Finally, the court ruled that it made no difference whether the trial court viewed the video or not. While SCOTX held in Diamond Offshore Services Limited v. Williams, 542 S.W.3d 539 (Tex. 2018) that trial courts should in general view video evidence before ruling on its admissibility, that ruling was made under Texas Rule of Evidence 403, which requires a balancing of the evidence’s probative value against its risk of unfair prejudice. In this case, by contrast, the question was whether Defendants complied with the pertinent rules of procedure governing timely production of requested discovery. The Diamond case simply did not apply.
It appears to us that something happened behind the scenes in this case that the court of appeals didn’t like. There is no question that sitting on the video until the last minute—and then not producing it after claiming that you did—has a bad odor about it.
