It’s All About the Timing...A Guide to Producing Surveillance Evidence of the Plaintiff in Personal Injury Cases

By Laurianne Falcone, Esq.*

Aside from the thorny question of whether to even conduct surveillance on the plaintiff in a personal injury case, there is the question of when to produce the surveillance you obtained to opposing counsel. Pennsylvania’s case law indicates that this production should occur early enough before trial so that your opponent has an opportunity to review the evidence and prepare for cross-examination. However, all cases are fact-specific, and the trial judge has latitude to admit or exclude surveillance evidence based on very specific circumstances.

In Mietelski v. Banks, 854 A.2d 579, 581 (Pa.Super. 2004), the Pennsylvania Superior Court affirmed the trial court’s decision to exclude the defendant’s surveillance video of one of the two plaintiffs, as well as the defense medical expert’s testimony regarding that video, because the video was not made available to plaintiffs’ counsel until three days before the expert was deposed. The Superior Court noted that defense counsel had possession of the footage more than one month prior to the expert’s deposition but did not disclose its existence until three days before the deposition and ten days before trial was set to commence.

In Dominick v. Hanson, et al., 753 A.2d 824 (Pa.Super. 2000), the Superior Court affirmed the trial court’s judgment in favor of the defendants. The jury returned a verdict for the defendants after viewing surveillance evidence of the plaintiff that was not produced to plaintiff’s counsel before trial. Defense counsel had indicated his intention to present the surveillance evidence of the plaintiff after plaintiff’s counsel completed his case-in-chief. The court noted that, although plaintiff’s counsel had served written discovery to the defendants requesting surveillance evidence, the defendants lodged objections to those discovery requests. Plaintiff’s counsel never challenged those objections, which rendered his objections at trial moot.

What’s the lesson for defense practitioners in Pennsylvania? First, ensure that you have served objections to any discovery requests involving surveillance, experts, reports, videos and/or photographs. If plaintiff’s counsel challenges those objections and prevails, you must abide by the court’s order. In that situation, ensure that you produce the surveillance evidence in accordance with the court order.

If plaintiff’s counsel does not serve discovery relating to surveillance, or if she fails to challenge your objections to such discovery, you have to make a judgment call. Do you wait until the plaintiff completes her case before announcing your intention to present surveillance evidence to the jury, as defense counsel did in Dominick, or do you produce the surveillance evidence to plaintiff’s counsel before trial, thus avoiding the risk that the trial judge will exclude the evidence based on unfair surprise and/or prejudice?

You should also consider what you want to achieve with the surveillance evidence. For example, your client may want to resolve the case before trial. If you produce your surveillance evidence before trial, or even before a settlement conference with the court, you may be in a better position to resolve the case.

Every situation is unique. Thus, you and your client must consider your endgame for the case, as well as how likely it is that the court will admit your surveillance evidence at trial.

*Laurie is a shareholder in our Philadelphia, Pennsylvania office who can be reached at 215.575.2715 or lafalcone@mdwcg.com.

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_{Defense Digest, Vol. 22, No. 3, September 2016. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}