Personal injury cases are prime targets for manipulation
and conjecture. How do you show that someone who’s been in a car
accident can’t do their job properly, and deserves thousands of dollars
in compensation? Till now lawyers have relied on doctors to observe
someone for half an hour or so and give their, sometimes-biased opinion.
Soon, they might also tap the wealth of quantifiable data provided by
fitness trackers. A law firm in Calgary is working on the first known
personal injury case that will use activity data from a Fitbit to help
show the effects of an accident on their client.
The young woman in question was injured in an accident
four years ago. Back then, Fitbits weren’t even on the market, but given
that she was a personal trainer, her lawyers at McLeod Law believe they
can say with confidence that she led an active lifestyle. A week from
now, they will start processing data from her Fitbit to show that her
activity levels are now under a baseline for someone of her age and
profession.
It will “back up what she’s been saying,” says her lawyer, Simon Muller of McLeod Law.
The lawyers aren’t using Fitbit’s data directly, but
pumping it through analytics platform Vivametrica, which uses public
research to compare a person’s activity data with that of the general
population.
Muller says the case is “unique,” and does appear to be
the first known case where data from a wearable is used in court.
(If other earlier cases come to light I will update this post.)
“Till now we’ve always had to rely on clinical
interpretation,” Muller says from his office in Calgary. “Now we’re
looking at longer periods of time though the course of a day, and we
have hard data.” His plaintiff will share her Fitbit data with
Vivametrica for several months as part of an assessment period.
“We’re expecting the results to show that her activity level is less and compromised as a result of her injury.”
What’s intriguing (and a little creepy) is that cases like
Muller’s could open the door to wearable device data being used not
just in personal injury claims but in prosecutions. “Insurers will want
it as much as plaintiffs will,” says Muller, for assessing sketchy
claims.
Insurers wouldn’t be able to force claimants to wear
Fitbits as part of an “assessment period,” like Muller’s client, but
they could request a formal court order from whoever holds the data to
release it to them, says Dr. Rick Hu, co-founder and CEO of Vivametrica.
“We would not release the information,” he adds. Insurers could instead
request it from a law firm or even from Fitbit directly.
“It’s always evolving with technology,” says Muller. “A number of years ago we saw courts requisition Facebook [for]
information. If you’ve been wearing the Fitbit monitors it’s likely
you’ll see court applications to compel disclosure of that data.”
Data from wearables is poised to become even more
insightful for courts as their sensors become ever more sophisticated:
tracking not only steps, but continuous heart beat and temperature data.
Legal experts have already speculated about the idea of forcing the disclosure of wearable data on various law blogs. Says Neda Shakoori at McManis and Faulkner (emphasis mine):
Wearables are yet another example of how technology may be a gold mine of potentially relevant [electronically stored information] for use in litigation. Take, for example, a personal injury case where a plaintiff is claiming the injuries he sustained in an automobile accident prevent him from participating in physical activities, such as running. Suppose further that the plaintiff has worn a fitness tracking device which has been recording every one of his five-mile runs during the past three months. The data generated by the plaintiff’s wearable device may be discovered in litigation and, as a result, completely discredit plaintiff’s case for damages resulting from the accident.
Wearable devices could become a “black box” for the human body, adds Matthew Pearn on Claims Canada,
who says several previous court cases have already paved the way for
more invasive disclosure of digital information in the court room.
At Muller’s law firm, using Fitbit data for his personal injury claim isn’t a one off.
“I’m already lining up more clients with a variety of
circumstances to use this data,” he says. “You can’t rely on just one
piece of data. You have to get all the pieces lined up.”
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