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As a personal injury law firm, we have growing concern that many people do not realize that their privacy settings are not properly set in Facebook and that anyone can see their posts, comments, and private photographs. In our experience, most of the people that claim that only their “friends” can see their Facebook page are incorrect. Do you think it’s a good idea to give everyone on the web unfettered access to every photograph posted of you on Facebook? Do you want open access to every photograph of your children or your spouse?

In the context of personal injury litigation or insurance claims, defense lawyers and insurance adjusters regularly snoop Facebook for information about a claimant. They are looking for information that they will try to use against you in your claim or other information that will lead to additional questions in your deposition.  They may spend hours going over every photograph or comment.  If your privacy settings are not properly set, you may be unwillingly exposing your entire life to everyone on the web, including lawyers and claims adjusters that are bent on trying to discredit you in litigation. You may also be unknowingly exposing yourself and your family to increased risk of identity theft or other crimes from criminals around the world with web access. Don’t open yourself up to these problems.

Even if you think your account is secure, it’s important that you check it today. We recommend that you log out of Facebook and do a search for your name. If you can see your entire Facebook page even when you are logged out of Facebook, so can everyone else on the web. Change your settings so that only “friends” can see your page. In this day of internet snoops, prowling defense lawyers looking for information about you, and cyber criminals, it’s important that you protect yourself today.

In a recent opinion by federal judge Ronald B. Leighton, Foss Maritime Company was ordered to pay for a spinal cord stimulator for an injured tug worker represented by Kraft Davies Olsson PLLC.  Foss had refused to pay for the procedure for its injured employee, claiming that the procedure did not improve the seaman’s condition and was designed only to reduce pain.  Rejecting Foss Maritime Company’s attempt to avoid responsibility for the injured worker’s medical treatment and holding that pain reduction was a valid purpose of medical cure, Judge Leighton ordered Foss to pay for a trial spinal cord stimulator to see if it would improve the worker’s pain and function.  In ruling in favor of the injured worker, Judge Leighton recognized the maritime rule that medical opinions terminating medical cure must be unequivocal and that any medical dispute about whether a medical treatment would assist the injured worker must be resolved in favor of the worker.  Key portions of Judge Leighton’s opinion are quoted below:

Seamen injured in service of the ship are entitled to maintenance and cure. Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 132-33, 80 S. Ct. 247, 4 L. Ed. 2d 191 (1959). The duty of the shipowner is non-delegable and independent of fault. Dise v. Express Marine, Inc., 476 Fed. Appx. 514, 520, 2011 AMC 2972 (4th Cir. 2011), cert. denied, 132 S. Ct. 2393 (2012).

Maintenance is a per diem living allowance, paid so long as the seaman is outside the hospital and has not reached the point of “maximum cure.” Cure involves the payment of therapeutic, medical, and hospital expenses not otherwise furnished to the seaman, again, until the point of “maximum cure.”

Unlike shore-side workers’ compensation schemes, a seaman may be entitled to recover maintenance and cure for a cancer diagnosis as long as the symptoms of the cancer manifest or were aggravated while in the service of the vessel. Courts have long recognized that: “ . . the shipowner’s liability for maintenance and cure [is] among ‘the most pervasive’ of all and [it is] not to be defeated by restrictive distinctions nor ‘narrowly confined.’ When there are ambiguities or doubts, they are resolved in favor of the seaman.” Vaughan v. Atkinson, 369 U.S. 527, 532, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962) (citations omitted, emphasis supplied); accord, Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 735, 63 S. Ct. 930, 87 L. Ed. 1107 (1943). The U.S. Supreme Court explained:

It has been the merit of the seaman’s right to maintenance and cure that it is so inclusive as to be relatively simple, and can be understood and administered without technical considerations. It has few exceptions or conditions to stir contentions, cause delays, and invite litigations.

Farrell v. United States, 336 U.S. 511, 516, 69 S. Ct. 707, L. Ed. 850 (1949). In Messier v. Bouchard Transp., the court described the doctrine:

According to the U.S. Coast Guard, a fisherman was rescued from the fishing vessel JACKPOT about 20 miles west of Gray’s Harbor, Washington on Saturday, August 24, 2013. The crew member was injured when a block came apart and struck the crew member in the head. After being struck in the head, the crew member reportedly stopped breathing and a federal marine observer performed CPR on the vessel. The crew member began breathing again after CPR was administered but remained unconscious. A U.S. Coast Guard Jayhawk helicopter crew evacuated the fisherman off the vessel and he was transported by air to Legacy Emanuel Medical Center in Portland, Oregon for emergency evaluation and treatment.

Members of fishing vessel crews are covered by the federal Jones Act and general maritime law for injuries at work. Under general maritime law, the failure of a piece of the vessel’s equipment can render a vessel unseaworthy. Similarly, under the federal Jones Act, it may be negligence to use improper or defective equipment. Here, the U.S. Coast Guard reported that the block came apart and struck the crew member. The reported details are sparse. However, if the block came apart because it was defective, broken, or otherwise failed because it was overloaded, that would likely render the block unseaworthy and/or the employer negligent. The crew member may be able to collect damages for lost wages, pain, disability, and loss of enjoyment of life caused by the incident. Head injuries can have serous life-long consequences. Because of the serious nature of these types of injuries, it is important that an early investigation is undertaken to determine the cause of the incident and preserve any important evidence, including physical evidence involved in the injury and the testimony of witnesses on deck when the incident occurred.

We posted earlier about the role of Facebook and other social media in maritime personal injury litigation, and are now following up with some dos and don’ts of social media.  This list is only a general outline and does not by any means cover all aspects of social media.  The biggest piece of advice we can give you, is use common sense.  If something feels personal and you would feel violated if the other side got to see it, Facebook probably isn’t the place to talk about it.

1.    DO beef up your privacy settings.  As discussed in our earlier post, the other side will likely be able to get a copy of your Facebook or other social media account after a lawsuit has been filed.  However, they have to specifically ask for it and are not entitled to it prior to the formal discovery process.  A huge portion of cases are settled prior to ever filing a lawsuit, and in those cases the other side would never be entitled to dig into your personal life via your social media account.  Furthermore, even where a lawsuit has been filed, strict privacy settings would prevent the other side from looking at your social media account without your knowledge, or looking at portions of your accounts that are not discoverable.  We recommend having the strictest privacy settings available.

2.    DON’T post pictures of yourself or allow others to post pictures of you doing activities that relate to or might aggravate your injury.  For example, if you have a back injury, it is probably not a good idea to post pictures of yourself showing off how much you can lift.  As an aside, you shouldn’t be engaging in these activities anyway.  Even if a photo was taken prior to your injury, if it is posted after you were injured, you may run into a real headache having to prove when it was taken.  Don’t post any pictures related to what happened.  If you think something is relevant to your case, it doesn’t belong on Facebook.

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Social media is progressively playing a larger role in our culture today, and coincidentally in litigation.  Many times, our maritime personal injury clients are surprised that after a lawsuit has been filed, the defense often requests a copy of the client’s entire Facebook account.  Clients wonder: Why is a Jones Act employer or a cruise line entitled to see a person’s private social media account?

Similarly, access to social media by employers is an issue that legislators are currently grappling with.  A bill currently before the Washington State Legislature has been in the news recently because of a controversial proposed amendment that would allow employers to obtain employees’ personal Facebook and other social media passwords as part of company investigations.  The bill, sponsored by Senator Steve Hobbs, D-Lake Stevens, is intended to safeguard the passwords of workers and job applicants in Washington, but the proposed amendment chips away at these protections. 

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