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When Robin Hairston, a cleaner for the Metro-North Commuter Railroad, filed a claim against the railroad alleging that she injured her back on the job, Metro-North followed a common defense tactic: It hired a private investigator to videotape her daily activities. The railroad hoped, of course, that she would show no sign of injury. Instead, the investigator brought back footage of Hairston going to her doctor’s office, getting into a car with assistance from a nurse and, according to her attorney, using a walker “like your grandmother would.” Metro-North decided not to show the tape to the jury. But nothing stopped Hairston’s attorney from doing so. After learning of the tape during discovery, solo practitioner Philip J. Dinhofer opted to use it to impeach a defense witness. Metro-North objected on several grounds, but Manhattan Supreme Court Justice Richard F. Braun found for the plaintiff. “Defendant was hoisted by its own petard in videotaping plaintiff,” wrote the judge, paraphrasing “Hamlet.” A jury subsequently issued a verdict for the plaintiff for $242,000. Because the jury found Hairston 50 percent culpable, the award was reduced to $121,000. Hairston v. Metro-North Commuter Railroad, 400659/98. With videotaping on the rise, defense attorneys are increasingly in danger of hoisting themselves a la Hairston. Ten percent to 15 percent of personal injury defendants hire investigators to tape plaintiffs, estimated Robert Vilensky, a plaintiffs attorney with Ronemus and Vilensky. “It’s so easy to do these days. Everyone’s got a video camera,” he said. “It doesn’t take that much effort. Clearly, it’s being used more and more.” Plaintiffs attorneys therefore make a habit during discovery of including a request for all such tapes. Among tort suits, cases alleging back injuries invite videotaping more than others. “If someone loses their leg, you can surveil until the cows come home, and the leg is still not there,” said Christopher McGrath, a personal injury and medical malpractice expert with Sullivan, Papain, Block, McGrath & Cannavo. Thus the rarity of videos in medical malpractice cases, he said. Insurance companies see back injuries, which are difficult to prove or disprove, as perhaps the most common source of fraud. In perhaps one-fourth of videotapes, the defense is damaged by its own videotape, according to McGrath. “It goes both ways,” he said. “You’re obligated to turn over all videotape surveillance material. When the doctor says the person can walk, it’s all fair game.” ACCIDENT LEAVING TRAIN Hairston’s injuries occurred in the early hours of Jan. 29, 1997, after she cleaned a train car at the North White Plains Station. When exiting, she slipped and fell, injuring her back. She suffered a herniated cervical disc for which she underwent fusion surgery, according to Dinhofer. She also experienced post-operative spurring of the vertebrae above and below the fusion, resulting in severe degenerative arthritic conditions, he said. Hairston sued seeking $2 million under the Federal Employees Liability Act, which provides negligence protection to railroad employees (not just federal employees, as the name seems to imply). Metro-North hired an investigator to tape Hairston, according to Dinhofer. “Defendant did not offer the tape into evidence during the nine day trial before this court and a jury,” wrote Justice Braun in a summary of his ruling. “Presumably, that was because the tape showed plaintiff going through her life’s activities using a walker.” When Dinhofer sought to admit the tape into evidence, Metro-North objected on several grounds. It argued, among other things, that the videotape was hearsay and that its prejudicial content outweighed its probative value. Braun disagreed. “The videotape had no sound other than static. Plaintiff did not commit any nonverbal acts that constituted hearsay,” wrote Braun. “Thus, the hearsay objection was overruled.” The judge added that the proper standard in judging evidence entails “not prejudice but undue prejudice,” citing People v. Buie, 86 NY 2d 501. “Here, the videotape was not unduly prejudicial to defendant but rather was probative of plaintiff’s damages claim.” Both sides orally moved to set aside the jury’s verdict; Justice Braun dismissed the motions. Dinhofer, who called the finding of 50 percent contributory negligence on the part of the plaintiff “ridiculous,” intends to file a written motion to set aside the verdict by Wednesday, he said. Jose Rios, Metro-North’s attorney, did not return phone calls seeking comment.

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