Be cautious about social media posts if you have a personal injury claim
What you post may not project an accurate representation of the reality of your life after your injury.
Increasingly, insurance companies, injury defense lawyers and their investigators monitor social media platforms like Facebook, YouTube, Instagram, Tik Tok, Twitter, LinkedIn and others for evidence they might use against injured plaintiffs. Insurers have long used these tactics in fighting disability insurance claims and even governmental agencies have viewed the posts of recipients of public disability benefits to sniff out claimants whose public personas may suggest that they are not as impaired as they claim.
This online surveillance can also be problematic for injured people seeking through lawsuits to recover financial compensation from defendants who may have harmed them through negligent or reckless behavior. Personal injury suits seek damages for injuries from incidents like motor vehicle or boating accidents, through medical negligence, because of hazardous conditions on the property of others, from dangerous products or in the workplace.
What are defense tactics when using a plaintiff’s social media presence?
The defense may try to use an injured person’s social media posts – including text, images and video – to hurt the victim’s credibility by making claims of pain and medical limitations look inconsistent with pictures or film of them going about their life. Not only may the other side try to raise questions about the plaintiff’s truthfulness, but also poke holes in their claim.
Attributing inaccurate meaning to a picture or video
For example, a person may have severe PTSD, depression or anxiety from an accident, but the defense may use a posting of the injured person celebrating at a family gathering or going to the mall as evidence against their mental health claims. The defendant may try to assert that the victim does not look sad or anxious, or unable to participate in life, when actually their therapist may push them to socialize or perform errands as much as possible as part of therapeutic treatment – or if after the shopping trip, the plaintiff must sleep the rest of the day.
The defense may use this type of evidence to hurt the case in chief by trying to show that the victim was not harmed in the way or to the extent claimed. Even if the plaintiff is successful in establishing that the other side is responsible, the defendant can use social media to try to lessen the money damages necessary to make the plaintiff whole.
For example, if the victim is asking for damages for lost future wages or diminishment of earning capacity because they can no longer stand or sit long enough to meet the requirements of most jobs, the defense might argue that a picture of the plaintiff walking in the park shows that their physical limitation is exaggerated. While the plaintiff’s lawyer can raise the common-sense point that a short walk does not negate these limitations and that plaintiff’s doctor urges them to take walks as part of their conditioning, refraining from posting during this time might help to establish the truth more clearly.
Or, the injured person may seek damages for pain and suffering, which the defense may try to invalidate with postings of the plaintiff looking happy or pain-free, even if neither of those is true.
What do Florida courts say?
A Florida court may allow a personal injury defendant to discover (obtain) evidence from the plaintiff’s social media in preparation for trial if the request for social media evidence is relevant to the lawsuit and not privileged. Even if it appears to be inadmissible at trial, it is still discoverable if it is “reasonably calculated to lead to the discovery of admissible evidence.”
In Nucci v. Target Corp., a Florida appeals court wrote that when an injured plaintiff seeks “intangible” damages like pain and suffering, a time-limited look at social media can give information about the person’s quality of life before and after an injury. People who post on social media have no expectation of privacy (and therefore no right to privacy) in what they post. Even if they use privacy settings, someone granted access could share the content.
However, there must be relevancy parameters around the discovery request for social media – it cannot be an overbroad “fishing expedition” or request irrelevant material.
The attorneys at Walborsky Bradley & Fleming, PLLC, represent injured people throughout the state of Florida.