Evidence Posted on Facebook Led to Dismissal of Claim

As we all know, social media can be utilized in a variety of ways, many of which are productive and useful tools. It even can serve as a resource for evidence in litigation – in all types of litigation. In Nicolaou v. Martin , No. 1286 EDA 2014, 2016 WL 7439586, — A.3d — (Pa. Super. Ct. Dec. 22, 2016), the Superior Court of Pennsylvania found certain Facebook posts significant in ruling that the statute of limitations had run and barred the plaintiffs’ malpractice claim.

In Nicolaou , Nancy and Nicholas Nicolaou filed a medical malpractice claim against various doctors, hospitals, and other medical care providers/facilities for their alleged failure to diagnose her Lyme disease. Nancy Nicolaou was bitten by a tick sometime in 2001 and, by August of that year, she had been receiving treatment for a number of maladies she associated with the tick bite. Each of the defendants treated Nancy Nicolaou at different times between 2001 and 2008. She was tested for a variety of conditions, including on four different occasions for Lyme disease, but was diagnosed as having Multiple Sclerosis (“MS”).

Sometime in 2007, Nancy Nicolaou suspected that she has been incorrectly diagnosed with MS and she had Lyme disease. In July 2009, Nancy Nicolaou started seeing Nurse Practitioner Rita Rhoads. Nurse Rhoads had concluded that Nancy Nicolaou “probably [had] Lyme [disease]” and she prescribed antibiotics to treat her Lyme disease. Nurse Rhoads also recommended that Nancy Nicolaou have a test administered by a company called IGeneX, Inc. to confirm whether she had Lyme disease and, on February 1, 2010, Nancy Nicolaou went for the test. On February 13, 2010, Nurse Rhoads advised Nancy Nicolaou in an email that the test confirmed she had Lyme disease. The day that Nancy Nicolaou received the test results, she posted a message on her Facebook page stating, “Today i [sic] got my blood test back from igenix [sic] labs to test for lyme [sic] disease and it came back positive!!!!!!!!!!!! i [sic] had been telling everyone for years i [sic] thought it was lyme [sic] and the doctors ignore [sic] me, thank you [G-]d you have answer[e]d my prayers!!!!!!!!! Now its [sic] in your hands!!!!!!!!!!!!!”

The Nicolaous filed their lawsuit on February 10, 2012, with amended complaints filed on April 19, 2012 and May 31, 2012. The second amended complaint included Nancy Nicolaou’s claim for medical malpractice against each of the defendants. The Nicolaous averred in the second amended complaint that, although it had been more than three years since Nancy Nicolaou had seen any of the defendants, the statute of limitations did not bar their claim because, under the discovery rule, reasonable people in the Nicolaous’ position would not have been in a position to discover the negligence until February 13, 2010 at the earliest. After discovery, the defendants filed a motion for summary judgment, which the trial court granted while holding that the statute of limitations had run and the statute had not been tolled by the discovery rule. The Nicolaous appealed, and a three judge panel reversed the grant of summary judgment, with one judge dissenting. The defendants filed a motion for reargument en banc, which the court granted.

The en banc panel started its analysis explaining the discovery rule, which is a judicially created exception that tolls the running of the applicable statute of limitations when an injury or its cause was not known or reasonably knowable. The discovery rule tolls the applicable statute of limitations until the plaintiff could reasonably discover the cause of his/her injury and the conduct of another. If an injured party relies on the discovery rule, the inability to discover the injury and its cause should not be discoverable “despite the exercise of reasonable diligence.” The plaintiff bears the burden to present facts justifying application of the discovery rule.

In trying to justify the application of the discovery rule, Nancy Nicolaou claimed that she was unable to afford the cost of the IGeneX test until February 1, 2010 and, thus, she did not receive confirmation of her diagnosis until February 13, 2010. The en banc panel, however, found that Nancy Nicolaou’s Facebook post “bear[s] on the fallacy of her claim” that “she didn’t believe [she had] it.” The court noted that on February 14, 2010, Nancy Nicolaou posted on Facebook that, “I had been telling everyone for years i [sic] thought it was lyme [sic] . . .” to which one of her friends replied, “[Y]ou DID say you had Lyme so many times!”

The court then looked at other evidence to determine whether the trial court properly determined that the statute of limitations began to run before February 10, 2010, which was two years before the Nicolaous filed their complaint. The court noted that Nancy Nicolaou sought treatment in 2001 for symptoms she associated with a tick bite. The court also noted, among other things, Nurse Rhoads testified that Nancy Nicolaou advised her when Nancy Nicolaou first came to see her in 2009 that she had been diagnosed with MS but she had been told that she may have Lyme disease. The court found it “striking and convincing” that Nancy Nicolaou’s “symptoms dramatically improved upon treatment for Lyme disease months before the positive blood test.” The court ultimately concluded that “[i]t is without question . . . that as early as July 20, 2009, Ms. Rhoads informed Mrs. Nicolaou that Ms. Rhoads believed Mrs. Nicolaou had [L]yme disease, Ms. Rhoads, in fact, treated Mrs. Nicolaou for [L]yme disease, the treatment caused ‘amazing’ improvement in Mrs. Nicolaou’s symptoms, and Mrs. Nicolaou knew of the availability of an objective test that could confirm Ms. Rhoads’ clinical diagnosis.” “Moreover [the court found], for the ensuing seven months, Mrs. Nicolaou refused to obtain the objective proof of the clinical diagnosis Ms. Rhoads had rendered.” Under these circumstances, the court held the discovery rule did not toll the statute of limitations and the trial court’s grant of summary judgment was proper.

The court’s decision in Nicolaou is not groundbreaking, but it is noteworthy in that it serves as an important reminder about the potential utility of evidence obtained through social media. In this case, the court looked to evidence that was posted approximately two years before the lawsuit was filed. While Nicolaou involved a medical malpractice claim, social media evidence can be relevant in a variety of disputes, such as employment cases, unfair competition claims, and other commercial/business disputes. Companies, however, should be aware that many courts do not allow unfettered access to an adverse party’s social media history. It is unclear from the opinion in Nicolaou how the social media evidence was obtained and whether there were any disputes regarding the availability of that evidence, but it obviously was admitted into evidence and played an important role in the court’s decision to rule that the statute of limitations had run and barred the Nicolaous’ claim.

If you have any questions regarding this post, please contact Stephen B. Stern at sstern@hwlaw.com or (410) 260-6585.

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