Civil Practice Last-Minute Revelation Precludes Entry of Videotaped Surveillance
Superior Court upheld evidence suppression but granted new trial on other grounds
By Shelby Schwartz
Special to the Law Weekly
The defendant's last minute disclosure of videotaped evidence showing a personal injury plaintiff shoveling snow outside his home did not amount to adequate discovery notice, the Superior Court has ruled.
Still, the ruling was a victory for the defense, as the court sent the case back to a Berks Country judge for a new trial in light of a jury instruction error.
According to the opinion in Mietelski v. Banks , PICS Case No. 04-1079 (Pa. Super. July 8, 2004) Bender, J. (10 pages), defense counsel obtained surreptitious video surveillance of plaintiff Ireneusz "Eric" Mietelski, who alleged that he was incapacitated after a car accident allegedly caused by defendant Kristen Janice Banks. On the tape, Mietelski was shown shoveling snow outside his home and cleaning snow off his car with a broom. The conclusions drawn from such activities would have greatly harmed Mietelski's case that his employment as a heavy laborer was effectively ended, the opinion notes.
Defense counsel alerted the plaintiff's attorney to the videotape late on a Friday afternoon, according to the opinion. Consequently, the plaintiff's counsel was not able to view it until immediately before a videotaped deposition of a defense expert witness on Monday morning.
Berks County Common Pleas Judge Forrest G. Schaeffer Jr. had found that the plaintiffs were not given adequate discovery notice, and the evidence was suppressed.
"This is certainly an unfair surprise," Schaeffer wrote in his opinion.
The case proceeded to trial, where the jury returned a $761,898.87 verdict in favor of Mietelski.
Defense attorney John Gerard Devlin of Philadelphia appealed the verdict, arguing that the exclusion of the videotaped surveillance evidence wrongly prevented the defendant's expert witness from commenting on the tape's contents, which greatly altered his testimony.
Finding no abuse of discretion, the Superior Court upheld Schaeffer's exclusion of this evidence in an opinion written by Judge John T. Bender and joined by Judge Seamus McCaffrey and Senior Judge Patrick R. Tamilia.
The court found that Schaeffer's granting of a motion in limine to suppress the tape and all references to it was proper given the defendant's failure to disclose the information to the plaintiffs in a timely fashion.
The judges also held that the defense expert's testimony on the videotape would have prejudiced the plaintiffs, who had not had time to prepare a meaningful cross-examination. Bender pointed to the lack of an explanation from the defense as to why it waited to reveal the videotape, as the taping had ended a month prior to the expert's deposition.
Despite the defendant's argument that the litigants in Duncan v. Mercy Catholic Medical Center , 813 A.2d 6 (Pa. Super. 2002), and Bindschusz v. Phillips , 771 A.2d 803 (Pa. Super. 2001), relied on tapes revealed during the course of the trial, the court ruled that revealing the videotape only immediately before the deposition effectively placed the tape's effect within the confines of the trial, at the start of the defendant's case.
"It's clearly the right decision," said plaintiff's attorney Kent Dixon Mikus of Philadelphia. "[The tape] was made, in part, the day of jury selection, and despite the fact that the counsel knew the tape was being made, when a prospective juror asked about it, he remained silent. All of this was done after our treating anesthesiologist testified via videotape. There was no way to go back and redo his deposition. ... Given the nature of my client's injuries, it was critical for my experts to be able to comment on the tape."
Devlin, who took over the case at the start of the appeal, said, "The defendants use surveillance tapes frequently, and they certainly have a place in a courtroom, but Pennsylvania law is very judicious in that they must be disclosed. And they should be disclosed. ... [This ruling is] instructive about what lawyers should do about surveillance tapes if they're going to use them. If a defense attorney decides to use a tape, he or she has to disclose it. No matter what."
Despite the court's ruling on the evidence suppression, the panel also held that the Berks County trial court erred in failing to explicitly charge the jury that it must consider whether the defendant's negligence was a substantial factor in producing the plaintiff's injuries. Accordingly, the case was remanded for a new trial.
Merely because the defendant concedes some injury does not mean that he admits to causing all injuries allegedly sustained, Bender explained. Thus, he wrote, the jury must be specifically instructed that the defendant is only liable for those injuries in which the jury determines his causation was a substantial factor.
The court ruled that the lack of such an instruction may have led the jury to believe that they were only responsible for assigning a dollar amount to the plaintiff's alleged injuries.
"We pulled a miracle by the handling of the appeal getting the court to grant a new trial on the case," Devlin said. "It's going back for a new trial unless the plaintiff appeals."
It is unclear whether the surveillance tape will be allowed into evidence in the new trial. Mikus said, "I don't know if they'll be allowed to use it in the new trial. If they are, we'll certainly have our expert witnesses review and comment on the tape."
Mietelski's suit originated from a motor vehicle accident in which Banks rear-ended his car while it was stopped at a red light on Shillington Road in Berks County, the opinion states. Mietelski allegedly suffered a slipped disk in his back, an injury to his sacroiliac joint, aggravation to a pre-existing neck injury and failed back syndrome. He claimed that he may never be able to return to his profession as a heavy laborer.
As printed in
Pennsylvania Law Weekly
, 7-19-2004
Available at
www.palawlibrary.com
News Archive
Copyright © 2004 , Jenkins Law Library/American Lawyer Media. All rights reserved.