Facebook: A Multi-Purpose Tool in Litigation
The majority of cases involving the discoverability of Facebook posts relate to damages or impeachment evidence in personal injury cases, as we have outlined in a previous post. However, in a unique situation, a Facebook post served as an important piece of evidence that the plaintiff’s cause of action for damages from a defective medical device had prescribed.
In Landry v. Nuvasive, Inc., 16-0192 (W.D. La. 3/14/18), 2018 U.S.Dist. LEXIS 42212, the defendant filed a summary judgment regarding prescription. In May 2014, the plaintiff had surgery to install a “spinal fixation system” to fuse several levels of his spine. In November 2014, the plaintiff began hearing squeaking-type noises coming from his back. The plaintiff’s primary care physician heard the squeaking sound without a stethoscope and immediately contacted the surgeon who installed the device. The surgeon’s nurse practitioner examined the plaintiff on December 24, 2014, and scheduled an appointment for plaintiff to see the surgeon on January 12, 2015. At this appointment, the surgeon explored a second surgery and had the proper pre-surgery forms signed. The plaintiff filed suit against the surgeon and Nuvasive, the manufacturer of the original spinal fixture system implanted in his back, on February 10, 2016. Nuvasive claimed that the plaintiff’s claims prescribed on January 12, 2016. The Court agreed and dismissed the action.
The court considered a Facebook post by the plaintiff on January 12, 2015, in which the plaintiff stated that he was having surgery to “replace two rods in my back. My back has been squeaking for a while, as if I were a rocking chair and has been getting worse.” The court found that this Facebook post, together with other evidence, demonstrated that the plaintiff was on notice as of January 12, 2015, that the “spinal fixation system” was the cause of his pain and the need for the second surgery.
Undoubtedly, Facebook and other social media sites will continue to become increasingly important in litigation.