One year post accident, Plaintiff applied for Social Security disability. Although her claim was denied two times, she continued to appeal and eventually was granted total disability, with the onset of disability dating back to the accident.
At trial, liability was admitted. The insured driver had passed away in the intervening period so his two adult daughters attended the trial in his place. Plaintiff sought over $140,000 for medical expenses and lost wages, plus unspecified damages for future medical treatment and future loss of income.
There was substantial evidence in the medical records to show significant inconsistencies in Plaintiff’s reported symptoms from one medical provider to the next and there was also evidence that Plaintiff had a significant pre-accident history of multiple chronic conditions, such as migraines and chronic joint pain. The inconsistencies and pre-accident history were used effectively at trial to dispute Plaintiff’s claims. There was also evidence questioning Plaintiff’s work history. However, it was Plaintiff’s Facebook posts that grabbed the jury’s attention and ultimately swayed the jury. During the discovery process, the Defense requested information on Plaintiff’s use of social media and requested production of any social media posts related to the accident, Plaintiff’s alleged injuries, or her activities and impairments. Nothing was produced. Fortunately, in researching Facebook, we discovered not one, but two Facebook accounts belonging to the Plaintiff. One was under a pseudonym. More importantly, Plaintiff had failed to install any privacy settings, leaving her accounts open to the public. It turned out that Plaintiff was an avid user of Facebook, posting nearly everything about herself and what she did.
Opposing counsel had failed to ask about social media in the written discovery served on the Defendant. As a result, armed with the information from Facebook, we had to make a tactical decision on how best to use the materials at trial. We had the option to produce the materials and have Plaintiff verify the documents, pursue a Motion to Compel to make Plaintiff produce the materials with a verification, or hold the materials and surprise Plaintiff at trial.
Disclosing the existence of the materials in advance would have provided more options to ensure the admissibility of the materials at trial, but Plaintiff would have been prepared to explain the posts or modify her testimony to avoid contradictions. Holding back on disclosing the documents ensured Plaintiff would be surprised at trial, but increased the risk that the materials would be deemed inadmissible.
Having previously taken Plaintiff’s deposition, we were aware that she was making far-fetched claims as to the nature and extent of her injuries, disabilities and inability to perform activities. We also knew Plaintiff thought she was smarter than everyone else and when confronted, rather than denying events or claiming lack of memory, she seemed to have an answer for everything and liked to try and talk her way out of it. As a result, we decided to take a chance on surprising Plaintiff at trial and did not disclose or produce the Facebook materials in advance. We did, however, list “Social Media and Facebook Posts” on our exhibit list for trial. Fortunately, opposing counsel didn’t inquire further.
At trial, we needed to make sure Plaintiff’s testimony clearly and specifically contradicted the Facebook posts. Before introducing the Facebook posts, defense led Plaintiff to testify she was totally disabled as a result of the accident, and more specifically, that she couldn’t work, lift her arm over her head, turn her head more than 10 degrees, go hiking as she used to do, go to the lake, play with her child, go to the playground with her child, or even hold her child. She also testified that she had given up her art and clay sculpting and even riding in a car was painful.
Sitting on the counsel table were copies of Plaintiff’s Facebook posts over the last 7 years, including pictures showing her hiking, kayaking, swimming at the lake, flying in a small plane, turning her head with full range of motion, selling arts, crafts and clay sculptures she had made, playing with her child, at the playground, holding her child in her arms, and holding her arm up over her head as she took a selfie. We also had Facebook posts of her talking about her fibromyalgia, tietze syndrome, connective tissue disorder, stress headaches and a host of other conditions completely unrelated to the accident.
Once Plaintiff was fairly well pinned down, she was then asked about her social media use. She admitted to having a Facebook account but denied posting anything of significance relating to the accident, her injuries or her activities.
Plaintiff was presented with each of her Facebook posts one by one. Defense described each post in detail so the jury could hear what it was even if they couldn’t see it. Eventually Plaintiff admitted that she posted the photos and statements, on the dates and times indicated, and they were true and accurate copies of the posts.
If Plaintiff had denied that the posts were hers or denied they were authentic, the Defense may have been stuck with her answer and may not have been able to introduce them. However, the gamble paid off. Plaintiff was caught completely off-guard and instead of denying the Facebook posts were hers, she tried to accuse the Defense of “hacking” her Facebook account, which she apparently thought was “private”. That gave the Defense a chance to stand in front of the jury with a cell phone, bring up her Facebook account and scroll through her posts in front of the jury.
The jury was interested and entertained, both by the turn of events and Plaintiff’s obvious surprise and agitation at being confronted with her own Facebook posts.
The cross examination of Plaintiff concluded by confronting Plaintiff with evidence of a significant subsequent motor vehicle accident, which was discovered in our research of the Plaintiff, after she had denied being involved in any other accidents. We discovered the accident in our research of the Plaintiff. Plaintiff failed to disclose this accident in written discovery or in her deposition. Again, we chose not to disclose the information prior to trial and gambled that Plaintiff would try to explain it away instead of deny it. When confronted, she initially claimed that it wasn’t really an accident at all, but merely a mechanical breakdown, like a flat tire. The Defense pointed out, according to the police report, Plaintiff was travelling 55 mph on the highway when the rear axle of the vehicle broke free, the right rear wheel flew off, the car slammed down onto the pavement, went off the road and caught on fire. In response, she explained that it was “only a small fire”.
Following a 4 day trial, the jury deliberated 40 minutes before returning a defense verdict and awarding Plaintiff nothing.
The case is instructive regarding the increasing importance of social media in litigation. It reinforces the need to both diligently research the opposing party’s social media presence, and also to make sure your own client avoids the same pitfalls. More than ever, you need to know what your client may have published or distributed on the internet and inform your client about privacy settings and the dangers of oversharing.
The case is Shandy Rachel Garrison v. The Estate of Eugene Phillips, Superior Court of Polk County, North Carolina, 12 CVS 211.