Avoid Social Media During a Personal Injury Claim
Posted By The McClellan Law Firm || Aug 18, 2014
Social media sites like Facebook, Twitter and Instagram have taken an increasingly important place in the lives of many Americans: young, old, and in all walks of life. As such, it is not surprising that it is also beginning to impact criminal cases and civil lawsuits. Social media sites can directly impact personal injury litigation and are playing an increasingly important role in these matters. Facebook posts have influenced the outcome of civil and criminal matters, such as a 2010 incident where a plaintiff was found to have exaggerated his injuries using evidence from photographs posted on his Facebook page. In 2014, an $80,000 settlement was thrown out of court after the daughter of a plaintiff violated confidentiality terms and posted about the matter on Facebook.
Any person who is currently involved in personal injury litigation or a lawsuit of any kind should carefully consider any comments, photographs or statements posted on any social media sites. Some attorneys recommend that their clients refrain from social media sites entirely during a claim or lawsuit. Even with "privacy settings" in place, this does not necessarily mean that your posts are confidential and will be kept from influencing your case. A seemingly innocent photograph could be used by the defense to show that your injuries are not as limiting as you claim. A comment could be seen as a breach of confidentiality that results in your hard-won settlement being thrown out entirely.
Even "Private" Information May Be Accessed
A few years ago, a plaintiff in a personal injury lawsuit saw his Facebook and MySpace accounts accessed after the defense discovered posts on the public portion of his Facebook account that indicated his accounts could contain information applicable to his case. The case, Bill R. McMillen, Sr. v. Hummingbird Speedway, Inc., Case No. 113-2010 CD, Court of Common Pleas of Jefferson County, Pennsylvania Civil Division (2010), involved claims that the plaintiff had sustained substantial injuries when rear-ended after a stock car race. Upon reviewing the public portion of McMillen's Facebook profile, the defendants discovered photographs they believed showed his injuries were exaggerated.
The defendants then pursued and secured access to the plaintiff's profiles two social media sites, Facebook and MySpace, on the grounds that information on these sites would be pertinent to the case. In issuing an opinion on the defendants' motion to receive this information, the court stated:
Facebook, MySpace, and their ilk are social network computer sites people utilize to connect with friends and meet new people. That is, in fact, their purpose, and they do not bill themselves as anything else. Thus, while it is conceivable that a person could use them as forums to divulge and seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential.
Violating the Terms of a Settlement
Take a story involving a family that was due to receive a settlement for a personal injury action. In the case Gulliver Schools, Inc. v. Patrick Snay, the plaintiff lost an $80,000 settlement after his college-age daughter bragged on Facebook about the matter. The defendant refused to pay the settlement on the grounds that the daughter had violated the confidentiality agreement, posting to about 1,200 Facebook friends: "won the case…Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT." The defendant also alleged that the plaintiff had violated the agreement himself by telling his daughter in the first place. The court found that the defendant did not have to pay the settlement.
Even if you have already resolved your claim, your settlement may include a non-disclosure agreement. This would limit all involved parties from discussing the case and the terms of the settlement. If you have such an agreement, be careful that you do not post anything on Facebook, Instagram, Twitter, or other social media websites that could result in a breach and therefore void your settlement award. You will also need to watch what family members and loved ones post, as this could also affect your case.
Posting Incriminating Evidence
"Hell on earth" was how California computer animator Eric Sedie described his life following an accident with a United States Postal Service truck in 2006. In his personal injury lawsuit, Sedie sought $2.5 million, claiming that he could no longer take part in activities he used to enjoy, such as painting or certain outdoor activities.
Issuing her ruling on Sedie's case last week, US Magistrate Judge Elizabeth D. Laporte voiced doubt in regards to Sedie's disability claims. One of the things she cited was a post from Sedie's MySpace page in which he complained about his arm hairs being caught in paint while painting. This was posted in June 2007, well after Sedie was involved in an accident with the USPS truck.
It seems like a minor point. However, since Sedie claimed that he could no longer enjoy things such as painting, the post more or less sunk his claim. Though he claimed the post had been a joke, the court failed to see the humor and awarded him just under $300,000—less than 20% of the amount he had asked for.
What's the lesson here?
In short, be careful what you post online—especially if you are involved in a personal injury lawsuit or any other sort of case where certain information could be used against you. One major hazard associated with social media use involves posting incriminating videos, photos, or statements. It may be tempting to post about your latest adventures or activities, but you should consider what image these may portray of your physical and/or mental wellbeing. Photos and videos of you engaging in certain physical activities could be used by the other party to show that your injuries are not as dramatic or impactful as you claim.
Take a case involving a hairstylist whose tweets ended up reducing her car accident jury award by nearly $100,000. In her lawsuit after a car accident, the hairstylist claimed that her injuries made it impossible for her to continue her work, but the defense used the woman's posts on Twitter to show that she had been partying in New Orleans, enjoying the beach, and carrying a purse on her allegedly disabled arm. Upon seeing this evidence, the jury reduced her award from $237,000 to $142,000. Before you post anything that could give the wrong impression about your physical abilities or psychological wellbeing, consider who may be able to see this and whether it could negatively impact your case.
Threats & Negative Communication
Finally, it is important to avoid threats or negative communication directed toward the other party. Particularly if you are going up against a large corporation in your personal injury case, it may be tempting to blast them on social media. Although you certainly have the right to speak your mind, remember that making threats or negative comments about the other party could make it more difficult to reach a negotiated settlement. Particularly aggressive comments could even be seen as criminal threats in some cases.
If you have a personal injury lawsuit pending or have reached a settlement that includes a non-disclosure agreement, remember this when you use your social media accounts. This includes blogs or other communication that may be viewed online. If you want to protect your right to compensation, do not say, do or post anything that could harm your case.