Straight Track #124

A few days later, the railroad’s doctor reports that he does not find any physical irregularities. The doctor tells the railroad that the injury is healed and the railroader is fit for work. The railroader again consults his treating doctor who diagnoses, for example, a lumbar strain and contusion, and indicates that his patient is to stop certain physical activities.

At this point, the railroad often decides to hire private investigators to conduct daily surveillance at regular intervals over a period of a few weeks or even a few years. Why does the railroad go through the expense of investigating its employees? According to the railroads, the surveillance videos often reveal that the injured railroader can perform normal activities all the while he continues to complain of significant functional limitations to his employer. From the point of view of others, railroads simply don’t trust their employees.

If Relevant, Video Evidence Is Admissible

But the question is often asked – and as lawyers we then battle the railroads over the issue – is such video evidence admissible at trial? More often than not, when deciding whether to admit evidence obtained through covert surveillance, courts will apply tests that balance the employee’s right to challenge such evidence against the employer’s right to investigate suspected wrongdoing.

Railroads often try to get surveillance evidence into the record by offering it as “impeachment” evidence, i.e. evidence that shows that the injured railroader has not been truthful about his level of injury. Some railroads have argued that the Federal Rules of Evidence do not require the production before trial of impeachment evidence, and by extension videotapes. However, that provision of the federal rules which the railroads often rely on only applies to automatic disclosure and does not affect a defendant’s obligation to respond to a request. Nevertheless, the railroads continue to try to get in undisclosed videotape under this argument. 

Courts have ruled that video evidence, however, raises the danger of medical speculation by a jury. Many courts have ruled that surveillance videos and photographs must be accompanied by an expert who has viewed the videotapes and is able to testify regarding the complex physical dynamics involved of the railroader’s activities on the tape. If the expert indicates that there is nothing in the tape that is inconsistent with the railroader’s inability to perform the railroad job, then the injured railroader can argue that the video should not be admitted. The tapes must, above all, be relevant and show a clear connection between the railroader's ability to perform his job on the railroad and the problems he experienced when he did the job. If they do not show this, the tapes have no relevance and should not be admitted. 

Furthermore, where claims raised by the tapes involve technical or scientific inquiry which is beyond the knowledge of the average juror, many courts hold that expert testimony is also required to show that these tapes somehow contradicted the railroader’s claims of his inability to do his job. 

If the railroad fails to produce any surveillance films before trial, the railroad most likely will be barred from introducing any films or such evidence at trial. The rationale for this rule is that to allow undisclosed evidence to be admitted at trial for what is called “impeachment purposes” without allowing a plaintiff sufficient time to view it before hand and to ascertain the facts surrounding the making of the tapes would be unduly prejudicial to the plaintiff’s case. 

Of course, such clear logic is not always followed by the railroad. Some courts have ruled that surveillance tapes can be withheld until after a plaintiff’s deposition. The rationale is that if the injured plaintiff sees the videotapes before his deposition, he can change his deposition testimony. 

The main advantage of having discoverable videotape is the videotape can then be attacked on relevancy grounds or under cross examination. Videotapes produced by the railroad will inevitably show only the injured railroader’s good days, while the days of bed-rest and rehabilitation will be edited by the surveillance firm. There will be no videotape of the plaintiff taking pain medication, participating in physical therapy or sleeping on the sofa because the pain prevents him from walking up the stairs to the bedroom. The railroad welcomes the opportunity to argue at trial that the injured railroaded was "caught" in the act, but the danger is that the jury will only see the injured employee doing a physical activity that supports the railroad's argument that the employee is not as injured as he claims to be.

However, there are ways to attack this type of evidence to get it excluded or to limit its impact on a jury. For example, a video that showed a client delivering milk, shoveling snow and doing other inconsequential work can be attacked as showing only light work, which does not equate with the job duties required of a railroad worker. The tape, we would argue, is confusing and misleading and its probative value is substantially outweighed by the danger of unfair prejudice, and therefore it should be excluded.

How do we as union designated lawyers fight against the surveillance investigations launched by the railroads against their own employees? First, we make the railroads produce the videotape before trial in order to build a case to discredit it. Then we fight to have the video barred from evidence – and prevent it from being seen by the jury – on relevancy grounds. 

Despite the success we have had with these techniques, video surveillance remains a powerful tool in the hands of a railroad, and they will continue to spend significant resources to conduct these investigations. All railroaders should remember that if injured on the job – the railroad’s eye in all likelihood will be watching their every move.

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