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A trial judge was right to refuse admission of a surveillance video in a medical malpractice trial because the defense counsel did not disclose it before trial, according to the Pennsylvania Superior Court in a case of first impression. As explained in the concurring opinion, a tape could be admitted in such circumstances if the defense attorney did not receive it until the eve of trial. But that was not the case in Bindschusz v. Phillips, where the defense obtained the tape six days before the trial began. “The failure to supplement their answers to interrogatories and include the videotape as a potential trial exhibit resulted in an unfair and prejudicial surprise to [plaintiff Robbie Bindschusz] midway through the trial, the precise evil which the discovery rules were drafted to foreclose,” Superior Court Judge Stephen McEwen said in the majority opinion. The defense tried to use a videotape showing the plaintiff performing physical activities to respond to claims that the plaintiff was unable to perform physical activities due to a nervous system condition his doctor failed to diagnose. INJURY AT WORK In 1992, Bindschusz injured his knee at work when he jumped from a tow truck. The next day an orthopedic surgeon, Dr. Herman P. Phillips, diagnosed him with a torn meniscus and later performed arthroscopic surgery. McEwen said the surgery was successful, but after he was discharged, Bindschusz complained of severe pain, persuading Phillips to order a venogram test to find out whether it was associated with a blood clot. The results were negative. Less than one week later, Bindschusz went to Paoli Memorial Hospital complaining of severe pain and swelling in his knee. He was admitted, under Phillips’ care, for additional testing and counseling. Bindschusz was eventually discharged with a leg brace, which was later replaced with a cast. When the cast was removed on June 5, 1992, Bindschusz began physical therapy. Phillips died on June 29. Six months later, Bindschusz was diagnosed with Reflex Sympathetic Dystrophy, a nervous system disturbance that causes severe pain and generally progresses to involve the skin and muscles. According to expert testimony presented at trial, the condition can develop into a permanent, disabling condition if it is not properly diagnosed and treated. Bindschusz accused Phillips of malpractice by failing to properly diagnose his condition and therefore causing him to suffer a permanent injury. The defense alleged Bindschusz did not have RSD and that even if he did, his symptoms did not develop until well after Phillips stopped treating him. A jury trial ended with a $1.26 million verdict for Bindschusz. Post-trial motions were denied. Phillips’ estate appealed to the Superior Court, alleging it was entitled to a new trial. The estate argued the trial court should have allowed them to play a videotape surveillance film of Bindschusz. The tape was not disclosed until after Bindschusz presented his case to the jury, despite several discovery requests. The 23-minute tape was filmed six days before the trial started and showed Bindschusz performing physical activities while doing his job at a carnival. Despite failure to supplement discovery requests, the defense counsel said the tape should have been allowed into evidence because Bindschusz did not disclose a change in residence, obstructing attempts by defense investigators to find him. The defense also complained that Bindschusz delayed in telling them he was employed. The defense alleged it did not fully intend to use the tape until it heard Bindschusz’s testimony about his difficulty performing physical activities. FIRST IMPRESSION McEwen said the court could not find any Pennsylvania appellate cases directly on point, although a 1973 U.S. District Court case from the Eastern District, Snead v. American Export-Isbrandtsen Lines Inc., did discuss the issue in detail. The Snead opinion expressed concern about the possible tampering of videotapes. In order to protect both the plaintiff’s and defense’s interests, the only solution was to require “the defense to disclose the existence of surveillance films or be barred from showing them at trial,” the Snead opinion said. The Snead court said the defense should be given the chance to depose the plaintiff as to his or her injuries, their effect and any present disabilities. “Once his [or her] testimony is memorialized in deposition, any variation he may make at trial to conform to the surveillance films can be used to impeach his credibility, and his knowledge at deposition that the films may exist should have a salutary effect on any tendency to be expansive,” the Snead opinion said. “At the same time, if the plaintiff believes that the films seem to give a false impression, he can then obtain the necessary data to serve as a basis for cross-examination.” The Superior Court adopted that reasoning, finding that the trial judge had made the right decision in excluding the tape. In a concurring opinion, Judge James Cavanaugh said there are times when supplemental answers are not necessary to introduce a videotape, such as when counsel did not have the tape until the eve of trial. However, Cavanaugh said that did not apply to Bindschusz’s case because the defense counsel had the tapes days before the trial began, and because Bindschusz’s testimony was consistent with his deposition testimony, any argument of surprise at trial was negated.

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