992 SURVEILLANCE CAN BACKFIRE

Video of Hurt Worker Shows

Mark Fass
New York Law Journal
12-09-2004

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