C.A. Dissenter Protests Exclusion of Video Depicting Plaintiff Executing Daily Tasks
Poochigian Says Jury That Awarded $10 Million Was Deprived of ‘Crucial, Probative’ Evidence
By a MetNews Staff Writer
A member of the Fifth District Court of Appeal has expressed dismay, in a dissent, that a jury was not allowed to view secretly recorded videos of the plaintiff, who was suing over injuries sustained in a traffic accident, engaged in daily activities with no sign of difficulty or discomfort.
Liability was not dispute in the case. The plaintiff, Laurence Mitchell Little, and his wife, Susan Little, were awarded a total of $10 million—$7 million to him in past and future noneconomic damages and $3 million to her also based on noneconomic damages.
Kern Superior Court Judge Thomas S. Clark barred introduction of the video footage as impeachment evidence under Elections Code §352 which authorizes exclusion where the prejudicial value of evidence exceeds the probative value. Affirmance of the judgment came in an opinion by Justice M. Bruce Smith, joined in by Justice Jennifer R.S. Detjen.
Acting Presiding Justice Charles Poochigian was the dissenter. He asserted:
“The problem here is simple: this trial was not fair. The resulting verdict should not stand.”
“Here, the probative value, for impeachment purposes, of the sub rosa video clips of Little doing everyday tasks, was limited in light of the state of the record….[T]here was no dispute that Little could perform everyday tasks. Indeed, both Little’s counsel and Susan Little’s counsel made that clear in their respective closing arguments.”
He said there was “no abuse of discretion in the trial court’s determination that admission of the sub rosa video clips would mislead the jury, and further concluding that the probative value of the video clips was substantially outweighed by the risk they would mislead the jury.”
The justice added:
“[E]ven were we to assume the court erred in excluding the surveillance video clips, given the limited probative value of the clips, defendants have not shown the error was prejudicial, in that exclusion of these clips does not undermine our confidence in the outcome.”
In his dissent, Poochigian said:
“Sub rosa surveillance is not uncommon in personal injury cases where the primary issue in dispute is damages. Such surveillance was undertaken here. Surveillance clips offered by the defense showed Little shopping, cleaning his car, running errands, moving chairs, and doing chores with apparent ease. He was often alone and showed no visible indication of limitation, pain or anxiety. Yet, the jury saw none of this video. None. It heard from Little, his family, and some medical experts, and then awarded plaintiffs $10 million. An eight-figure sum in a case where the injured plaintiff himself said he could still do everything he did before the accident, just not as well. This trial was a lopsided presentation of evidence, and the verdict reflects it.”
He specified in a footnote:
“No one disputes Little is entitled to damages. He suffered serious consequences from the tortious conduct of the defendants and deserves to be made whole. But those damages must be calculated by a fully-informed jury – not one from which crucial, probative information has been withheld.”
Smith and Poochigian had varying interpretations of testimony by Mitchell Little’s granddaughter. Smith set forth: “Defendants make much of Allyson Jones’s testimony that Little was weak and fragile, and she did not have him help her bring in the groceries. However, Jones did not testify Little was incapable of lifting bags; rather, she said he offered to help with the bags but she declined.”
“The majority said Jones did not testify Little was incapable of lifting bags, but only that she declined his offer to help with the bags….There is not as much difference between these two things as the majority suggests. Its observation only begs the question, why did Jones decline Little’s offer to help? Well, because he was so ‘very—very, very weak’ and ‘very fragile.’ In other words, because Jones thought Little could not or should not lift grocery bags in his physical state. Surveillance video showing Little shopping on his own without any visible struggle is certainly probative to impeach the inference this evidence was offered to support.”
Contradicting Smith’s pronouncement that there was “no abuse of discretion in the trial court’s determination that admission of the sub rosa video clips would mislead the jury,” Poochigian wrote:
“There is little reason to believe the surveillance video would mislead the jury. It is rather straightforward evidence: video of Little doing things. Nothing more, nothing less.
“It speaks to his theoretical ability to perform the tasks depicted. It does not conclusively establish his level of pain while doing them, nor how happy or sad he is, nor how often he undertakes the tasks depicted. The jury would have to decide for itself how much the video would factor into its decision, and there is no reason to believe that would have been a uniquely difficult task.”
Addressing the matter of prejudice, he said:
“Prejudice is rather obvious here because a damages award of anything less than $10 million would have been a result more favorable to the defense. It cannot be denied that it is reasonably possible the jury may have awarded less than $10 million if it had viewed the excluded surveillance.”
The case is Little v. Singh, F083989.
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