Your Facebook page reveals otherwise

A few moons ago, I blogged about use of Facebook in civil litigation.  In the following years, the use of Facebook in litigation has grown exponentially with the dynamic growth of active Facebook users now exceeding  2.19 billion.  According to Statistica, 240 million of those users are in the United States as of April 2018.

People post every conceivable thing to social media.  Some good, some bad.   It comes as no surprise that social media posts by parties in civil litigation contradicting the claims made in their lawsuits make fertile grounds for impeachment.  Plaintiff claims in litigation that he can no longer lift anything over 25 pounds, but his Facebook page has posts showing him engaging in a power lifting competition.  Defendant driver claims perfect eyesight, but has Facebook posts asking for prayers as he is going to the eye doctor for a surgery to correct his vision.  Plaintiff wife files a loss of consortium claim alleging her husband’s injury damaged their marriage, but she has Facebook posts for two years leading up to the injury discussing her husband’s infidelity.  Defendant claims his dog that bit someone isn’t vicious, but has Facebook posts referencing having to pay vet bills because his dog killed a neighbor’s cat—-again.  The possibilities are endless.

A recent case from the Mississippi Court of Appeals highlights just how damning this evidence can be.    David McLaughlin contended that while making a left turn he was struck by an 18-wheeler that was attempting to pass him from behind.  McLaughlin claimed he suffered damages in the amount of $591,000, including medical expenses, lost wages, and pain and suffering.  Placing the claims of contributory negligence aside, Mr. McLaughlin had some serious evidentiary issues.

First, the trial court allowed the jury to hear evidence of Mr. McLaughlin’s alcohol use.  McLaughlin v. North Drew Freight, Inc.  NO. 2016-CA-01335-COA (Miss. Ct. App. 2018).  The Court of Appeals found no error given that “evidence of possible alcohol consumption just prior to the accident was highly relevant and probative” on the issue of his credibility, recollection and contributory negligence.  Id. (citing Abrams v. Marlin Firearms Company, 838 So. 2d 975 (Miss. 2003).

Next, McLaughlin claimed “that the admission of a Facebook video, which shows him
doing jumping jacks for his daughter, was irrelevant and damaged his credibility with the jury.”  McLaughlin, at paragraph 27.  Again the Court of Appeals disagreed:

The video showed McLaughlin being physically active contrary to his testimony
describing his alleged injuries. This certainly had the tendency to make the existence of this claim more probable or less probable than it would be absent the video. A reasonable juror could conclude that the Facebook video casts doubt on the severity of McLaughlin’s injuries.

Id. at paragraph 29.  The admission of alcohol use, impeachment by Facebook posts, and the comparative fault of the parties resulted in a jury verdict of $1,400.00 which the Court of Appeals affirmed.  As Mr. McLaughlin is now well aware, parties to litigation must be very careful in what they post to social media.

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