DiMichel v. South Buffalo Ry. Co.

• Decision Date: 20 October 1992
• Citation: 604 N.E.2d 63,590 N.Y.S.2d 1,80 N.Y.2d 184
• Parties: , 604 N.E.2d 63, 61 USLW 2255 Anthony J. DiMICHEL, Respondent, v. SOUTH BUFFALO RAILWAY COMPANY, Appellant. David L. POOLE, Respondent, v. CONSOLIDATED RAIL CORPORATION, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 1

590 N.Y.S.2d 1

80 N.Y.2d 184, 604 N.E.2d 63, 61 USLW 2255

Anthony J. DiMICHEL, Respondent, v. SOUTH BUFFALO RAILWAY COMPANY, Appellant.

David L. POOLE, Respondent, v. CONSOLIDATED RAIL CORPORATION, Appellant.

Court of Appeals of New York.

Oct. 20, 1992.

[80 N.Y.2d 186] [604 N.E.2d 64] Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo (Kevin A. Szanyi, of counsel), for appellant in the first above-entitled action.

[80 N.Y.2d 187] Paul William Beltz, P.C., Buffalo, and Catherine M. Beltz, for respondent in the first above-entitled action.

Bauman & Kunkis, P.C., New York City (Bert Bauman, of counsel), and Lucinda M. Finley, Buffalo, for the New York State Trial Lawyers' Ass'n, amicus curiae in the first above-entitled action.

[80 N.Y.2d 188] O'Shea, Reynolds, Napier, Cummings & Kirby, Buffalo (Kevin J. Bauer, of counsel), for the Defense Trial Lawyers of Western New York, Inc., and others, amici curiae in the first and second above-entitled actions.

Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo (Richard F. Griffin, of counsel), and Nixon Hargrave, Devans & Doyle, (Susan C. Roney and Laurie Styka Bloom, of counsel), for appellant in the second above-entitled action.

[80 N.Y.2d 189] Paul William Beltz, P.C., Buffalo, for respondent in the second above-entitled action.

OPINION OF THE COURT

WACHTLER, Chief Judge.

On these two appeals, we consider whether surveillance films prepared by a defendant in a personal injury action are discoverable by the plaintiff before trial. Surveillance films can serve a uniquely compelling function in a personal injury trial. They are designed to undermine, in a potentially sensational manner, a plaintiff's claim that he or she was seriously injured. At the same time, however, visual images are easily manipulated and can, as the result of skillful editing or crafty camera work, give a false depiction of a plaintiff's condition. Defense counsel argues that only by permitting a defendant to spring these films on the plaintiff at trial will the truth-seeking function of cross-examination be safeguarded. Plaintiffs' counsel, on the other hand, argues that because films are so easily manipulated, they must be disclosed before trial in order to permit counsel to verify the accuracy of the images portrayed.

At its most basic, this controversy requires us to fashion a rule that respects a defendant's qualified right to keep videotapes prepared in anticipation of litigation private, but that at the same time advances the policy of liberal disclosure underlying CPLR article 31. The Appellate Division held in both of these cases that the defendants would be obligated to disclose only those tapes which they planned to use at trial. Under the facts present here, we find this balance to be an appropriate one. Accordingly, in DiMichel v. South Buffalo Railway Company, we affirm. In Poole v. Consolidated Rail Corporation, however, because of trial errors we will discuss below, we reverse and remit for a new trial on both liability and damages.

I. DiMichel v. South Buffalo Railway Company

Plaintiff Anthony DiMichel commenced this action against South Buffalo Railway Company (South Buffalo) in Supreme Court, Erie County, by service of summons and complaint dated January 16, 1986. Plaintiff alleged that on June 6, 1984, while employed by South Buffalo, he sustained injuries in a fall. DiMichel charged South Buffalo with violations of the Federal Employers' Liability Act, the Safety Appliance Act and the Boiler Inspection Act and asked for $500,000 in damages.

In the course of pretrial discovery, plaintiff asked for disclosure of all videotapes or surveillance films that defendant may have taken of plaintiff. Without conceding that it in fact possessed surveillance materials, South Buffalo contended that any such material was not discoverable. Plaintiff then moved to compel disclosure. The trial court denied this motion.

Plaintiff moved to reargue the motion to compel after the Appellate Division, First Department, held such films to be discoverable in Marte v. Hickok Mfg. Co., 154 A.D.2d 173, 552 N.Y.S.2d 297. Upon reargument the motion to compel disclosure was granted and defendant was ordered "to turn over to plaintiff for inspection and copying any and all videotapes and/or surveillance films of the plaintiff," but stayed this order pending appeal to the Appellate Division. The Appellate Division modified, with two Justices dissenting, holding that the defendant was obligated to turn over those surveillance materials it intended to use at trial, and that the defendant would be precluded from using any surveillance material it did not supply to plaintiff within 60 days of its order. The Appellate Division stated that the surveillance material constituted material prepared for litigation, "discoverable upon a showing that the party seeking discovery has a substantial need of the materials in preparation of the case and is unable without undue hardship to obtain their substantial equivalent by other means" (178 A.D.2d 914, 915, 579 N.Y.S.2d 788, citing CPLR 3101[d][2]. The two dissenters would have held that plaintiff had failed to show factually that he had a substantial need for the material or that he was unable without undue hardship to obtain its equivalent. Defendant moved the Appellate Division for leave to appeal to this Court, and the Appellate Division certified the following question: "Was the order of this Court entered December 26, 1991 properly made?"

II. Poole v. Consolidated Rail Corporation

Plaintiff David Poole commenced this action in Supreme Court, Erie County, against his employer, Consolidated Rail Corporation (Conrail), charging that he had been seriously injured as the result of an August 22, 1985 fall from an allegedly defective ladder. In his verified complaint dated August 21, 1986, Poole alleged that Conrail had failed to provide plaintiff with a safe place to work and had failed to ensure that there were proper safety features on the job. Plaintiff asked for $1 million in damages, but in an amended complaint dated April 10, 1990, plaintiff increased the amount of damages sought to $5 million.

In the course of pretrial discovery, plaintiff served a notice to produce dated November 20, 1989, which directed Conrail to turn over "all surveillance films, photographs, videotapes and related materials concerning * * * surveillance." Defendant moved for a protective order, but this motion was denied, and in an order dated June 8, 1990, plaintiff's request to view all surveillance films produced by defendant was granted.

At trial, plaintiff produced medical evidence to support his claims that he had sustained permanent and serious injury to his back as a result of the accident. Further, plaintiff introduced evidence to establish that the accident had rendered him impotent. Defendant did not enter any surveillance material into evidence. The jury found in favor of plaintiff and awarded him $4,152,000 in damages.

Conrail appealed to the Appellate Division, which affirmed with two Justices dissenting. The Appellate Division, citing DiMichel, which was decided at the same time, held that the lower court ruling that plaintiff was entitled to all surveillance material was too broad and should have been confined to that surveillance material which defendant had intended to use at trial. The Court deemed this error to be harmless, however, "because the evidence of defendant's liability and plaintiff's damages was overwhelming and because defendant suffered no prejudice by the court's ruling" (178 A.D.2d 941, 942, 579 N.Y.S.2d 772). The dissenting Justices would have held that the award deviated materially from what was reasonable compensation (CPLR 5501[c] and would have awarded defendant a new trial on damages. The defendant appealed to this Court as of right (CPLR 5601[a].

III.

As a preliminary matter, we note that, because of the procedural posture of each of these cases, the question before us is a rather narrow one. In each case, as noted above, the Appellate Division held that defendants had to turn over only those surveillance tapes that they intended to use at trial. Defendants appealed from this decision in both cases. Because any broadening of the scope of discovery authorized by the Appellate Division would, in effect, grant affirmative relief to plaintiffs, who are not appellants here (Hecht v. City of New York, 60 N.Y.2d 57, 63, 467 N.Y.S.2d 187, 454 N.E.2d 527), we cannot consider plaintiffs' arguments that they are entitled to view every surveillance film that defendants may have taken, regardless of whether defendants intend to use the films at trial.

Having acknowledged this procedural constraint, we now turn to the unique problems posed by surveillance films. Personal injury defendants secure surveillance materials in order to verify the extent of a plaintiff's purported injuries and introduce them because they are powerful and immediate images that cast doubt upon the plaintiff's claims. And indeed, if accurate and authentic, a surveillance film that undercuts a plaintiff's claims of injury may be devastatingly probative. At the same time, however, film and videotape are extraordinarily manipulable media. Artful splicing and deceptive lighting are but two ways that an image can be skewed and perception altered. As one court has noted, "[t]he camera may be an instrument of deception. It can be misused. Distances may be minimized or exaggerated. Lighting, focal lengths, and camera angles all make a difference. Action may be slowed down or speeded up. The editing and splicing of films may change the chronology of events. An emergency situation may be made to appear commonplace. That which has occurred once, can be described as an example of an event which recurs frequently * * * Thus, that which purports to be a means to reach the truth may be distorted, misleading, and false" (Snead v. American Export-Isbrandtsen Lines, 59...