Diamond Offshore Services Limited and Diamond Offshore Services Company v. Willie David Williams, 01-13-01068-CV

Background

Plaintiff Willie David Williams sued Diamond Offshore for personal-injury damages relating to a 2008 back injury; jury awarded about $9.6 million.
Defendant Diamond offered a post-accident surveillance video (about 1 hour, 6 minutes) showing Williams performing various physical activities months after the injury and surgery.
Trial court ruled the video admissible only for impeachment (reserve bank) and declined to view the tape or perform a full Rule 403 balancing; the video was excluded substantively at trial.
On appeal the majority affirmed the exclusion; Diamond moved for en banc reconsideration arguing the majority misapplied the Texas Rules of Evidence.
Appellants contend the trial court (and appellate majority) failed to (1) resolve threshold relevance under Rules 401–402, (2) view the visual evidence before a 403 balancing, and (3) apply the presumption favoring admissibility and the proper 403 factors.

Issues

Issue	Plaintiff's Argument (Williams)	Defendant's Argument (Diamond)	Held (Court of Appeals majority as characterized by appellants)
Relevance of surveillance video (substantive vs. impeachment)	Video is not relevant substantively; it may only serve impeachment if Williams denies what is depicted	Video is substantive and highly relevant to disputed extent of injury and earning-capacity	Majority treated the video as excludable; appellants argue majority failed to decide 401/402 threshold and accepted impeachment-only framing
Rule 403 balancing and viewing requirement	Trial court permissibly exercised discretion to exclude on prejudice grounds without viewing full video	Trial court must view the video and conduct a mandatory 403 balancing before exclusion; appellate court must review that balancing	Majority upheld exclusion without record showing the court viewed the tape or performed a 403 weighing; appellants urge that is error
Standard for "unfair prejudice" under Rule 403	Showing activities that undermine plaintiff’s disability claim is unfairly prejudicial and could mislead jury	Prejudice must be "unfair" and "substantial"; probative value presumptively outweighs prejudice and cross-examination/authentication minimize unfairness	Majority concluded video could create prejudicial impression (e.g., long activity without pain); appellants say majority ignored presumption favoring admission and 403 factors
Civil vs. criminal treatment of visual evidence; preservation/en banc review	Civil courts may permissibly exclude videos more readily; trial judge’s impeachment ruling and preservation issues justify exclusion	Visual evidence is equally admissible in civil cases; criminal precedents and Texas authority support admission; errors justify en banc review	Appellants argue the decision departs from criminal and other civil precedents and creates an improper schism; they request en banc review to clarify evidentiary framework

Key Cases Cited

Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231 (Tex. 2007) (prejudice alone does not make evidence inadmissible; "prejudice" must be unfair)
Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014) (visual evidence can be uniquely persuasive; "a picture is often worth a thousand words")
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (op. on reh’g) (appellate review must measure trial court Rule 403 rulings against required criteria; trial court must adequately exercise and record its discretion)
Gordon v. State, 784 S.W.2d 410 (Tex. Crim. App. 1990) (videos may require the trial court to view the evidence to assess probative weight under Rule 403)
Old Chief v. U.S., 519 U.S. 172 (U.S. 1997) (parties may insist on proving facts with evidence rather than accepting stipulations because some forms of proof are more persuasive)
Castro v. Sebesta, 808 S.W.2d 189 (Tex. App.—Houston [1st Dist.] 1991) (exclusion of photographs that uniquely aid jury understanding can be harmful error)
Parr v. U.S., 255 F.2d 86 (5th Cir. 1958) (a party need not accept an adversary’s judicial admission and may insist on proving facts with visual evidence)
State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005) (outlining Rule 403 factors: probative value; potential for irrational influence; time required; need for the evidence)