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Straight
Track #3
If Injured Be Aware:
Surveillance Videos Can Destroy Your Case
Hoey & Farina
1-888-425-1212
info@hoeyfarina.com
When a railroad worker is
injured while at work due to the negligence of the railroad, The Federal Employers'
Liability Act ("FELA") allows the injured railroad worker to seek monetary
damages from the railroad for his injuries. If the claim is not settled, it will most
likely be tried before a jury. Prior to the jury trial, both the railroads' attorneys and
the plaintiff's attorneys will evaluate how a jury will perceive the plaintiff's
credibility, the witnesses' credibility and the weight of the evidence. The litigation
process is combative and credibility is important. The injured employee must understand
that the railroad will ask every question and investigate every issue as it attempts to
minimize its liability. The railroad will question whether it was at fault in causing your
injury, whether the injury happened on the job, the severity of the injury and whether the
injury prevents the injured person from working. The railroad lawyers know that perception
may be more important than the facts of an injury when the facts will be presented to a
jury. Accordingly, the railroad lawyers will take bits of information from the injured
plaintiff's life out of context and make these bits of information the cornerstone of
their defense of the case. Reality will be distorted to sway a jury and discredit the
plaintiff. This objective is accomplished through the use of videotaped surveillance. The
railroad's lawyers cannot be prevented from surveillance tapes making these arguments, but
the injured employee can do something about being videotaped and preserving his
credibility before the jury.
As you know, we live in a video society. That is, people watch a significant amount of
television, and the television is a familiar means of getting information. Studies have
shown that jurors like to be actively involved in the trial process. The studies also have
shown that jurors are receptive to information given to them over a television screen
since it is such a familiar source of information. At trial, the railroad will put into
question the legitimacy of an injury by having a doctor discuss the plaintiff's medical
condition. Typically, the jury is required to sit passively and listen to the presentation
of "boring, dry" evidence.
However, when the railroad shows the jury videotapes of the plaintiff doing some
activity the railroad claims is contrary to the injured person's medical condition, the
juror is asked to become a detective and engage in "hands-on" analysis of
evidence.
Surveillance can occur over a period of months and years. During this time, an
individual with an injury will have good and bad days during the healing process. However,
only the individual's good days will be filmed and edited by the surveillance firm to be
presented to the jury at trial. 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 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. Even if it is a one-time event and the employee
could not do the activity again, e.g., playing catch with his children or loading a
fishing boat on a trailer, the railroad will argue at trial that the plaintiff was
"caught" in the act and it is likely that this is an activity that is done
often.
Credibility is an issue at all times during the litigation process. If the jury
believes the surveillance tapes accurately depict the plaintiff's activities and that the
plaintiff has not been honest about his abilities and injury, not only will the monetary
recovery through negotiations or verdict be affected, but the trial result may be a
"not guilty" because the jury did not believe the plaintiff how the accident
happened. A videotape of the injured employee exceeding his medical restrictions gives the
railroad the opportunity to put the plaintiff on the defense at trial and force him to
explain why he did what he did. When a FELA case goes to trial, the railroad should be the
defendant - not the injured railroad worker.
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