Kelly on Malpractice

A day-in-the-life video is a unique opportunity to observe a situation which is otherwise impossible to describe or imagine. If your client is severely disabled, a recorded presentation offers an effective frame of reference for the testimony of health care providers and the family members to show the jury the daily difficulties encountered by your client. Doctors and hospitals try to exclude these videos as prejudicial under Rule 403. Therefore, you should have a memorandum of law ready to file before trial so that you can get this vital evidence to the jury.

There is a legion of cases that allow this evidence as relevant to damages. In Colon ex rel. Molina v. BIC USA, Inc., 199 F.Supp.2d 53 (S.D.N.Y.2001), a day-in-the-life video of a child’s hospital stay was admissible in a products liability action so that a jury could observe the child’s condition after the accident, observe the way treatment was administered, and to view child’s progress. The video depicted the child’s mother beside him. In Walls v. Armour Pharmaceutical Co. 832 F.Supp. 1505 (M.D.Fla.1993), the court recognized that while the subject-matter of the videotape was of necessity emotional, it was not sensationalized. Courts usually admit dramatized “day-in-the-life” videotapes under the rationale that they are “certainly admissible as a matter of discretion by the trial judge, if not as a matter of right.”). In Trapp v. Cayson, 471 So.2d 375, 380 (Miss.1985), after determining the video had probative value and would be of assistance to the jury, the trial judge allowed a one hour and twenty minute video to be viewed by the jury. The film depicted various activities of Cayson, such as waking up and moving from bed to wheelchair, attaching a catheter apparatus for urination, bowel evacuation procedures in the bathroom, taking a shower, dressing, eating breakfast, brushing teeth and shaving, exercising in a ‘stand-up’, opening mail with his teeth, moving about the house and kitchen, driving a van, emptying a bag of urine, getting undressed, and going to bed. The narration of the film by Cayson consisted of explaining what he was doing in the film. In Jesco, Inc. v. Shannon, 451 So.2d 694, 702 (Miss.1984), the jury was allowed to watch a film of burn treatment procedures. These videos are particularly helpful in burn cases by showing the jury how difficult and time-consuming physical therapy can be. In Grimes v. Employers Mutual Liability Ins. Co., 73 F.R.D. 607 (D.Alaska 1977), Mr. Grimes, who was injured in an industrial accident, attempted to admit a film depicting himself performing several daily activities and conducting clinical tests. The film also contained scenes of Grimes at home with his daughter and quadriplegic brother, who were not parties to the lawsuit. The defendant objected to the admissibility of the tape on several grounds including the tape was irrelevant, unduly prejudicial, and cumulative. The court held that the videotaped evidence “illustrated better than words, the impact the injury had on the plaintiff’s life in terms of pain and suffering and loss of enjoyment of life.”

There is no substitute for showing the jury what your client endures. Seeing is believing. You should keep the video as brief as possible depending upon the impairment. Have a professional videographer record the events, and do it tastefully. Invite the Defendant’s counsel to the session. This will defuse any argument by the defendant that the process was unfair.