TO THE HONORABLE JUDGE OF SAID COURT:
Defendant Union Carbide Corporation has filed a motion to exclude the “day in the life” videotape of Plaintiff Napoleon McGary. The videotape is admissible as relevant and probative evidence of Mr. McGary’s physical and mental condition, and its value is not substantially outweighed by the danger of unfair prejudice. Plaintiffs file this Response and would respectfully show the Court as follows:
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FACTUAL BACKGROUND
Napoleon McGary’s claim against various manufacturers and distributors of asbestos-containing products was originally filed on March 15, 2001. Plaintiffs added Union Carbide as a defendant in their Third Amended Petition, which was served on counsel for Union Carbide on February 14, 2002. Union Carbide is represented by DeHay & Elliston, the same law firm that represented other defendants in the case. Plaintiffs delivered Mr. McGary’s Day-In-The-Life videotape to DeHay & Elliston on May 23, 2002, only three months after Union Carbide was made a defendant.
Union Carbide claims in its motion that it repeatedly requested this videotape. But Union Carbide never requested the videotape. Union Carbide’s allegation relies on requests made by Certainteed – who is no longer a party to this case. The motion misleads the Court by implying that Plaintiffs ignored Union Carbide’s discovery requests, when there were no such requests. Union Carbide served Requests for Disclosures on April 25, 2002, but those Requests did not ask for “day in the life” videotapes.
Even if Union Carbide had requested the videotape, however, it would not have been due until May 25. Although Union Carbide never requested the videotape, Plaintiffs provided Mr. McGary’s videotape to Union Carbide on May 23, 2002. So Union Carbide cannot complain about the timeliness of Plaintiffs’ early and unrequested production of the videotape. Moreover, Union Carbide can show no harm caused by the admission of the videotape at trial.
THE VIDEOTAPE’S PROBATIVE VALUE IS NOT OUTWEIGHED BY DANGER OF PREJUDICE.
Delivery of videotape less than 30 days before trial does not warrant exclusion.
Union Carbide argues that the videotape should be excluded because it was produced less than 30 days before trial. Again, Union Carbide never requested the videotape, so Plaintiffs were not required to produce it. See Tex.R.Civ.P. 193.1.
Even if Union Carbide had requested the videotape, the Rules of Civil Procedure do not automatically exclude evidence produced less than 30 days before trial, however, where the delay “will not unfairly surprise or unfairly prejudice the other parties.” Tex.R.Civ.P. 193.6(a). Union Carbide will not be unfairly surprised or prejudiced by the admission of the videotape at trial, so its production within 30 days before trial does not require exclusion.
The videotape’s probative value is not substantially outweighed by danger of unfair prejudice.
The “day in the life” tape is relevant to Mr. McGary’s claim for damages. Relevant evidence may not be excluded unless its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. The fact that the tapes may depict scenes that are somewhat prejudicial does not warrant their exclusion. See Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 772 (Tex. App.–Corpus Christi 1999, writ denied). Instead, the movant – Union Carbide– must show that the evidence would be “unfairly prejudicial.” Id.; see John Deere Co. v. May, 773 S.W.2d 369, 374 (Tex. App.–Waco 1989, writ denied). Union Carbide has not met this burden.
Instead, Union Carbide merely complains that the tape would play upon the passions and sympathies of the jury. This complaint, without any factual or legal support, does not warrant the exclusion of the videotape. Engendering the jury’s sympathy is not grounds for exclusion.
In Pittsburgh Corning Corp. v. Walters, a Texas appellate court expressly approved the admission of a “day in the life” videotape offered in an asbestos trial. 1 S.W.3d 759, 772 (Tex.App. – Corpus Christi 1999, pet. denied). The plaintiff offered a videotape showing Walters describe the pain he was enduring, the difficulties he was having, and the sensations he was feeling during the time that the tape was recorded. Id. The court recognized that the tape may have aroused “the sympathy of the jury for Walters’ plight, but the trial court did not err in concluding that this tape had sufficient probative value to overcome whatever prejudice it created. Douglas Walters’ condition at or near the time of his death was a necessary part of his wife’s case. The videotape used at trial was an effective means of presenting that condition in its unexpurgated form.” Id.
Similarly, the videotape Plaintiffs plan to show at trial is direct evidence of Mr. McGary’s physical condition and state of mind, which is relevant to Plaintiffs’ claims for pain and suffering and mental anguish. The video presentation of Mr. McGary’s daily life truly demonstrates the devastation of his illness and provides material and direct evidence of Mr. McGary’s physical condition and state of mind at the time it was taken — shortly before his death of asbestos-related mesothelioma. His physical and mental condition are directly relevant to Plaintiffs’ claims for Mr. McGary’s pain and suffering. Because Plaintiffs will offer the videotape to show Mr. McGary’s mental, emotional, and physical condition, it is admissible under Tex. R. Civ. Evid. 803(3): “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health)” is not excluded by the hearsay rule.
To bolster its argument, Union Carbide ignores the applicable asbestos case and mistakenly relies upon Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998). In Miles, the plaintiffs offered a videotape of automobile “sled tests” to demonstrate how a passenger was injured in a collision. Id. at 388. The sled tests had been conducted years before the collision, and were not conducted under conditions similar to the collision. Id. at 388-389. The appellate court held that the tapes should not have been admitted as evidence of how the injury occurred. Id. But Miles does not compel the exclusion of any videotape that may contain emotionally charged scenes.
CONCLUSION
Because the videotape is relevant to issues that will be litigated at trial and because the videotape will not unfairly prejudice Union Carbide, Plaintiffs ask that this Court to deny Union Carbide’s Motion to Strike Plaintiff Napoleon McGary’s Day-in-the-Life Video and allow its use at trial.
Respectfully Submitted