Swabbing the Decks of Admissibility, by Joshua Gilliland, Esq., Bow Tie Law’s Blog
Working as a deckhand can be extremely dangerous. There are plenty of reality TV shows with fishermen, tugboats, and salvage crews to highlight the risks professional mariners face daily.
What is also risky in litigation is posting on social media information that could hurt your case.
In Newill v. Campbell Transp. Co., a former deckhand brought motions in limine to limit social media evidence and other testimony in what apparently was a trial over a shipboard injury.
Red Skies in the Morning
The Plaintiff attempted to preclude the Defendant from introducing Facebook posts that showed the Plaintiff could engage in physical activities, despite his claimed injury. Newill v. Campbell Transp. Co., 2015 U.S. Dist. LEXIS 4350, 1-2 (W.D. Pa. Jan. 14, 2015).
The Defendant sought to introduce Facebook posts that the Plaintiff engaged in ‘painting, landscaping, flooring, going to the gym, undercoating a truck, and going physical.’ Newill, at *2. The Plaintiff further offered his skills as a handyman on social media. Id.
The Court held that the Facebook posts that reflected physical capabilities that were inconsistent with his claimed injury would be allowed at trial. Id. However, if during the trial the Plaintiff felt a social media exhibit was overly embarrassing, the Plaintiff could challenge that specific post under Federal Rule of Evidence 403 at that time. Newill, at *3.
Red Skies at Night
The Defendant had a witness [presumably an expert] who was to testify that the Plaintiff’s Facebook posts ‘probably [were] not giving the employers a good impression,’ was simply speculation and thus not admissible. Newill, at *4. This might have been different if there was some evidence that the connected the Plaintiff’s employment status to his social media posting, but none was offered. Id.
Bow Tie Thoughts
I am an Evidence geek. Love it as much as the Rules of Civil Procedure. The difference is Evidence goes to the heart of a trial: What is admissible? . . . .