Social media used as evidence against injured workers: cases

@grathom (thanks!) kindly pointed out that Professor Eric Goldman has been keeping a list of cases in which a person’s social media has been used as evidence against them, or, as he puts it, when litigants say “one thing in court and another when talking to their friends online.”

In the latest case, a workers comp claimant, who says he is in excruciating pain after a refrigerator fell on him, put pictures on Facebook and MySpace that show him drinking and partying. To try to get the photos excluded from evidence, the claimant attempted to seize the moral high ground, arguing that the use of the pictures in litigation was “a disgrace to the dignity of the workers’ compensation proceedings and the legal system.”

Nice try.

The court allowed the evidence.

Confronted with this case, Goldman offers the following:

Now that Facebook can do facial recognition, it should next develop a tool to automatically detect photos depicting alcoholic drinks and give users a way to automatically opt-out of those photos!

Goldman’s quite a guy, huh? Instead of trying to grab some quick cash by applying for a software/business-method patent on this, he’s offered it up as a public service. Someone note this down so that Goldman’s post can be used as prior art to block patent-hungry Facebook if and when they apply for a patent on “Method of Shielding Workers Comp Claimants from Impeaching Photos of Boozing”.

Injured workers beware of using social media!

Here’s the full list of social-media-evidence-gotcha cases Professor Goldman has collected:

Social Media Photos Foil Yet Another Litigant–Clement v. Johnson’s Warehouse

Clement v. Johnson’s Warehouse Showroom, Inc., 2012 Ark. App. 17 (Jan. 4, 2012)

In my long-running series of litigants saying one thing in court and another when talking to their friends online, consider this from a worker’s comp case after a refrigerator fell on Clement:

The first issue Clement raises in his brief is whether pictures of him that appeared on Facebook and MySpace should have been admitted into evidence. He complains that the pictures “are a disgrace to the dignity of the workers’ compensation proceedings and the legal system” and have nothing to do with his medical treatment….

We find no abuse of discretion in the allowance of the photographs. Clement contended that he was in excruciating pain, but these pictures show him drinking and partying. Certainly these pictures could have a bearing on Clement’s credibility, albeit a negative effect that Clement might not wish to be demonstrated to the ALJ or the Commission. We hold that there was not an abuse of discretion in allowing the photographs.

Now that Facebook can do facial recognition, it should next develop a tool to automatically detect photos depicting alcoholic drinks and give users a way to automatically opt-out of those photos!

YouTube Video Impeaches Witness’ Credibility–Ensign Yacht v. Arrigoni

Ensign Yachts, Inc. v. Arrigoni, 2011 WL 5325174 (D. Conn. Nov. 2, 2011)

Another entry in the annals of social media evidence undercutting a litigant’s testimony. This time, a YouTube video becomes the “gotcha”:

Ross Sr.’s credibility was severely impeached at trial, most notably through the introduction of a YouTube video of Ross Sr. and Fabrice Fontanez on a yacht in the South of France directly contradicting Ross Sr.’s sworn testimony that he had only seen Fontanez on one occasion, at the Norwalk Cove Marina in Connecticut, since the dealings regarding the sale of the yacht and that he had no business relationship with Fontanez. Contrary to this testimony, the YouTube video, a promotional video for NuMarine, displayed Ross Sr. with one of his yacht dealers on a yacht in St. Tropez with Fabrice Fontanez in 2010, establishing that he had not only seen Fontanez on at least one additional occasion, but also that he had a business relationship with Fontanez. Further, when presented with this video on cross-examination, Ross Sr. was at best evasive in answering questions concerning the identities of the people shown in the video.

Facebook Entries Negate Car Crash Victims’ Physical Injury Claims

On the ever-popular subject of social media posts that belie the statements litigants make in court, consider Boudwin v. General Ins. Co. of America, 2011 WL 4433578 (La. App. Ct. Sept. 14, 2011). The litigation is the result of a serious car accident, and two of the injured victims (Jessi and Lee) believed the insurance company shorted them. In a jury trial, the jury didn’t award anything to the litigants for loss of enjoyment of life or physical disability. The court recounts the situation:

At trial, both Jessi and Lee were specifically asked about how their lives had changed following the accident, and both of them gave very similar responses. Jessi, who at the time of the accident had just graduated from high school, testified that before the accident, she studied all the time. Following the accident, she stated she still studied, but it was painful. She said the only thing she could not do following the accident was sit ups and study for long periods of time. At the time of trial, Jessi was a senior at Nicholls State University maintaining a 4.0 grade point average.

Jessi was also questioned regarding some of her routine physical activities, especially in regard to entries she made on her Facebook page. She acknowledged that she runs, or rather jogs, regularly to stay in shape, and even attempted to do an exercise program called P9OX with a friend, which she described as being “really tough.”…

Lee likewise testified that his lifestyle before and after the accident were pretty much the same. He still participated in all the same activities and maintained his military commitment, including successfully completing physical aptitude tests required by the Army twice a year. Still, Lee testified that before the accident, he always stayed active and played a lot of sports, and following the accident, while he continued to stay active, it was “not as much, because I find that after activity that it’s a lot more pain than usual.”

On cross examination, however, Lee acknowledged several entries from his Facebook page where he reported frequently “working out” and also playing sports such as basketball, tennis, “ultimate Frisbee,” and softball, sometimes engaging in multiple sessions of sporting activities in a single day. He further acknowledged that he wrote on his Facebook page that he had participated in a softball tournament in the month before trial, which happened to be two days before his final visit with. Dr. Cenac. When asked if he had informed Dr. Cenac of any of injuries he had sustained while playing sports, he stated that he told Dr. Cenac that he stayed “active,” but that he was “not inclined” to tell Dr. Cenac that he was playing on softball teams.

Considering the testimony and medical evidence presented, we cannot say that the jury was manifestly erroneous in refusing to award any damages for physical disability or loss of enjoyment of life. The record clearly shows that neither Jessi nor Lee have experienced any significant limitations or impairments as a result of the injuries they sustained in the May 31, 2008 accident.

Contrary MySpace Evidence Strikes A Litigant Again–HAC, Inc. v. Box

HAC, Inc. v. Box, 2010 OK 89 (Okla. Dec. 14, 2010)

I’ve repeatedly blogged on social networking sites providing evidence that undercuts a litigant’s position. Today’s example involves a minor working in a grocery store. A co-worker throws a roll of toilet paper at the minor. The minor responds to the provocation by going to the co-worker and yelling at him. They scuffle, tangle their feet, and fall down. The fall permanently injures the minor’s arms.

The minor seeks workers’ comp. The store responds that he was engaged in “horseplay” and therefore isn’t entitled to compensation. The Oklahoma Supreme Court provides a detailed definition of compensable vs. non-compensable “horseplay” for workers’ comp purposes, and voluntary horseplay isn’t compensable. The court then further concludes that the minor had, in fact, engaged in voluntary horseplay. In support of this conclusion, the court cites (among other things) this part of the minor’s deposition:

“At page 26, Box testified:

Q. And isn’t it true that on your MySpace page and on their MySpace page, however that works, you told some of your friends that this accident happened when you were roughhousing and wrestling. Correct?

A. Yes.”

Workers’ comp claim denied.

I do love the technological savvy of the grocery store’s lawyer in discussing MySpace: “however that works.” Sounds like counsel was well-prepped for the deposition. Then again, I confess that I don’t really understand MySpace either…!

MySpace Postings Foil Another Litigant–Sedie v. U.S.

Sedie v. U.S., 2010 WL 1644252 (N.D. Cal. April 21, 2010)

I’ve previously blogged about online postings exposing litigant duplicity, i.e., arguing one thing in court but saying something contrary online.  This case is typical of the trend I’m seeing. The plaintiff was on the losing side of a 2006 bicycle-meets-postal truck collision. Seeking recompense in court, the judge found the plaintiff was not entirely credible due to juxtapositions like this (citations omitted):

“Plaintiff testified that he spends much of his time lying down, and there are times that he does not leave his room because he is depressed about his overall situation. However, the Court finds this testimony is only partially accurate, and is exaggerated given the other evidence of his actual activities and his pattern of exaggeration. For example, Plaintiff’s online writings show that his life was not constantly “hell on earth” as he claimed. Plaintiff maintained his pages on MySpace and Facebook since the accident , and as of January 12, 2010, his MySpace page listed various activities and hobbies, and friends of Plaintiff. Plaintiff wrote entries on his MySpace page, including one on June 3, 2007, in which he described painting as a frustrating activity when his arm hairs would get caught in paint. Yet painting was on the list of activities that Plaintiff claims were adversely affected by the accident. Plaintiff also testified that he had not done any painting since the accident, but the MySpace entry was written in the present tense at a time just prior to his microdiscectomy. Plaintiff testified that the MySpace entry was a joke, but the Court did not find the testimony credible.”

Funny joke. Why does it always seem to be MySpace in these duplicity cases…?

Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case–Embry v. State

Embry v. State, 2010 WL 768755 (Ind. App. Ct. March 8, 2010)

I’ve blogged before about the use of postings to MySpace or other social networking sites as a new source of impeaching evidence. In this case, an ex-husband was accused of beating his ex-wife. He unsuccessfully argued self-defense. The court quotes the following testimony about the wife’s attitudes towards her husband:
____

“On cross-examination, the defense questioned her about a number of derogatory statements she had posted about Embry on her MySpace blog prior to the incident in question:

BY [DEFENSE]: … Prior to Au-April 22nd, 2008 had you ever expressed or communicated in any way that you wanted your ex to die a slow painful death?

A I believe you’re referring to my “My Space” …

Q I’m not-I-no, I’m not referring to anything. I’m just asking you a simple question: if you’d ever expressed or communicated in any way that you wanted your ex-husband, Mr. Embry, to die a slow painful death?

A I see it right there on your desk.

Q Okay.

A It’s my “My Space” blog.

Q Okay, did you say it?

A I typed it.

Q Okay. But the answer is, did you say it? I mean is that your communication.

A I typed it.

Q Okay. And did you ever express um, or communicate in any way that you wanted to be present and dance the cha-cha around his slow painful death?

A It’s all there in the blog.

Q Okay. The answer’s a simple yes or no. You said it; you’ve communicated it some way, did you?

A If you want to put that blog there, I …

Q I’m just asking you a simple question.

BY COURT: Ma‘am, will ya just answer the question yes or no?

A Yes, I did.

Q Did you ever refer to Mr. Embry or communicate in any way that he was a worthless bag of monkey shit?

A Yes.

Q Did you ever refer to him as dog piss?

A Yes.

Q Did you ever refer to him as a worm puke stale crusty moldy inhuman horrible human oxygen sucking moron?

A Yes.

Q Did you ever communicate the desire, that because he’s older and more stupid than you, he will die way before you do?

A I believe I said please assure me that it was possible that he would pass before me.”
___

The state’s attorney redirects with this understated summary:

“BY [STATE]: Ms. Embry, is it fair-fair to say that you’re not very fond of your former husband?

A No, I am not fond of him at all.”

Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony–People v. Franco

I have Westlaw alerts set up to notify me when court opinions discuss the major social networking sites. As a result, I am now seeing a steady stream of cases where Facebook or MySpace postings are being used to contradict a litigant’s or witness’ testimony in a court case. I think the following excerpt from People v. Franco, 2009 WL 3165840 (Cal. App. Ct. Oct. 5, 2009), where a jury convicted the defendant Franco of vehicular manslaughter with gross negligence, exemplifies what I’m seeing:

At about 10:30 a.m. on June 6, 2006, Franco and Henry Chavez were seen racing each other in their Mustang vehicles on the Ventura Freeway, each reaching speeds of approximately 100 miles per hour. Franco applied her brakes while Chavez was directly behind her, causing him to lose control of his vehicle. The vehicle travelled to the other side of the freeway, flipped, and landed in a strawberry field. Chavez was killed. Franco did not stop.

Franco testified that she was driving approximately 75 miles an hour on the freeway when Chavez began tailgating her. When she changed lanes, he followed her. Noticing that her speed had increased, she tapped on her brakes to slow down. Chavez veered to avoid hitting her, then lost control of his vehicle. She saw a plume of dust but kept driving as her boyfriend advised when she called him on her cell phone. The day before the accident, however, Franco had written on her MySpace page, “If you find me on the freeway and you can keep up I have a really bad habit of racing random people.”

I know most of us already know this lesson, but this case reminds us that our statements on social networking sites can and will be used against us. It also reminds us how hard it’s becoming to maintain multiple persona–in this case, the in-court persona of being a safe and courteous driver while simultaneously maintaining an alternative persona as a “secret” street racer.

[Source: http://bloglawblog.com/]