Rule 403 of the Federal Rules of Evidence states that “although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403 (Emphasis added). The application of this rule has been hotly contested in current insurance litigation, with specific regard to the admissibility of videos documenting Hurricane Katrina conditions in a different geographic location from where the property damage at issue in the case occurred.
A foundational issue in Hurricane Katrina cases centers on the contentions of the parties regarding the wind damage and/or water damage impacting a particular Plaintiff’s property. Given the size of the storm, its path and its land entry point(s), the cause(s) of damage to Katrina-affected properties differs greatly depending on location: certain geographical areas suffered extreme water damage, while others sustained none at all. The distinction between wind and tidal damage is paramount in a Katrina case, and therefore must be carefully presented to the jury in order to ensure its accurate comprehension.
Completely decimated houses with only a slab remaining will look similar to the jury, regardless of the cause of damage. Therefore, there is a genuine danger that showing a video from another location with different damage patterns, but that appears similar to the properties in question–only a foundation slab– will confuse the jury. For instance, a video’s depiction of properties destroyed by tidal surges in Biloxi might appear similar to post-storm Bay St. Louis properties, where tornadoes and significant wind damage commonly destroyed properties. The introduction of such a video at trial would likely mislead a jury to make the assumption that if the storm is the same and the post-storm property appearance is the same, then the cause of damage for Plaintiff’s tornado-ravaged Bay St. Louis property must be similar to those in the Biloxi area. Thus, that video’s prejudicial value would greatly outweigh any probative value it may have, and it is more likely to confuse the jury than assist it.
Federal Courts have recognized that Rule 403 is triggered by videos displaying a similar event with different circumstances. In Melberg v. Plains Marketing, L.P., the District Court held that the evidentiary value of displaying National Highway Traffic Safety Administration (NHTSA) frontal crash test videos was substantially outweighed by danger of unfair prejudice, confusion of issues, and misleading of jury, since events depicted in motion pictures of dummies were different than events of collision at issue in instant personal injury litigation.” Melberg v. Plains Marketing, L.P., 332 F.Supp.2d 1253 (D.N.D. 2004), (“NHTSA crash tests were frontal collisions with no offset, whereas collision in instant case involved offset of 30 degrees from direction of roadway, dummies were restrained by occupant restraint system whereas motorist was unbelted and unrestrained, and significant skid marks before collision indicated that motorist reacted to imminent collision, but anthropomorphic dummies did not react to outside stimuli.”) Additionally, in Hairston v. Washington Metropolitan Area Transit Authority, in holding that the probative value of an EEOC letter was outweighed by its prejudicial effect, the District Court found that because a letter itself discussed no facts about the case at bar, but rather provided a legal conclusion, it had little probative value. Hairston v. Washington Metropolitan Area Transit Authority, (1997 WL 411946 , not reported in Fed. Supp., (D.D.C., 1997.)) Further, the Hairston Court recognized that if the letter were to be offered into evidence, it would be likely that additional time at trial would be spent “attempting to explain what this..[letter]..means to the jury.” Id. In the same way, the Katrina video discussed above did not portray facts about the property in question, but rather drew a conclusion based on a set of dissimilar circumstances. Moreover, a sizable amount of time would be necessary to explain the proper significance, weight and scope of the video, if it were introduced.
The introduction of these videos has been attempted to explain general wind and tidal conditions created by Hurricane Katrina and the potential effect on a Plaintiff’s home. However, if the wind and tidal conditions offered in the video are dissimilar to those conditions near Plaintiff’s home, than any such “potential effect” would likely be misplaced. Additionally, if the video is only offered in support of expert testimony and not as substantive evidence itself, then other support could be easily generated of a more traditional nature which would not confuse the jury. Thus, the prejudicial effect of the certain resulting confusion, additional evidence and testimony necessary to address these unclear issues, and the potentially misplaced weight that the jury could assign to this video, greatly outweighs any probative value that the video possesses.
On June 27, 2007, an Order was entered in a case in the Southern District of Mississippi, Eleuterius v. State Farm & Casualty Company, Case 1:06-cv-00647–LTS–RHW, in which the Court held that this kind of video should “be excluded because ‘its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, [and] by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ Fed.R.Evid. 403.” State Farm’s subsequent response was to claim that Eleuterius is dissimilar to other Katrina cases, because there the video was initiated later in the case. However, the Court’s Order was not based on procedural concerns; rather, the Court made a substantive finding that the video’s prejudicial effect would substantially outweigh its probative value, because of “unfair prejudice, confusion of the issues, or misleading the jury….”. Because of its violation of Rule 403, the video was properly held to be inadmissible. This ruling recognizes the danger of jury confusion that could result from a video’s introduction of dissimilar Katrina conditions, and will likely provide applicable precedent for similar exclusions in the future.
For information on how to enforce claims for property damages caused by Hurricane Katrina on the Mississippi Gulf Coast, call Thornhill & Collings, (985) 641-5010.