In personal injury cases, the defense bar has long employed the use of covert video surveillance of plaintiffs engaged in daily activities to challenge claims of damages. These videos are used not only to impeach the credibility of the plaintiff, but also as substantive proof to rebut the plaintiff’s claims of physical limitations and severity of injury. The use of covert surveillance footage at trial has become increasingly effective due to significant improvements in technology. Small high-definition cameras are now readily available at low cost, making quality equipment easily obtainable and easily concealable. Moreover, in this age of electronics where nearly every cell phone is also a video camera, the ease with which video surveillance can occur is unprecedented.
For years, courts have admitted this proof as a means of preventing fraud, accepting the standard argument advanced by defense counsel that if the plaintiff is telling the truth about her injuries, then she should have nothing to hide. By contrast, if the plaintiff is telling less than the truth, then the video shall serve as a powerful means to expose the lie. More recently, with the advent of small and reliable video cameras, plaintiffs have used surveillance footage of so-called “independent medical examinations” (IMEs) to challenge at trial statements made by the defendant’s physicians. This has created a parity amongst the litigants in personal injury cases, effectively permitting defense counsel to use covert video surveillance to challenge the plaintiff’s testimony at trial regarding the extent and severity of her injuries, while allowing the plaintiff to utilize the same means to challenge the testimony of the defendant’s doctor on the same issue by exposing the thoroughness (or lack thereof) of the doctor’s examination of the plaintiff.
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