Wearable technology may soon be to personal injury law what the black box is to the aviation industry: a tool that provides valuable data and insight into the health and lifestyle of a particular person, rather than the cockpit of an airplane.
In personal injury cases, lawyers typically rely on medical reports, claimant’s own testimony and expert advice from specialists to help prove the detrimental effects that an injury has on their client’s life. The aim is to gather enough evidence to prove that an individual has sustained injuries that have left them unable to work or that has greatly reduced their capacity to perform their normal duties.
However, wearable devices such as Fitbit could make it easier for lawyers to demonstrate the impact of an injury and establish that their client deserves compensation.
Wearable technology and fitness tracking devices such as Fitbit record activity levels throughout the day, sleeping habits and distance travelled. They can also monitor the intensity level of activity at any given point. Other examples of data recorded on a wearable device: weight loss, weight gain, heart rate, blood pressure, diet, exercise and mood can be diarized by users to help keep track of their health.
For the first time in legal history, activity data from wearable technology was entered as courtroom evidence. Canadian law firm McLeod Law, will use data gleaned from fitness tracker Fitbit to show the detrimental effects that an accident has had on their client, a former personal trainer.
Rather than using the activity data directly from the Fitbit, it will be extracted by Vivametrica, a data company that will process the data and compare it with the activity and health of the general population, and more specifically, with someone in the plaintiff’s demographic and profession.
McLeod Law hopes to prove that the client‘s activity levels has dropped as a result of the injury. “Till now we’ve always had to rely on clinical interpretation,” Simon Muller of McLeod Law firm in Calgary told Forbes. “Now we’re looking at longer periods of time through the course of a day, and we have hard data.”
Another personal injury law firm’s recent use of wearable technology, this time Google Glass, has also received public attention. As reported in a recent Business Insider article, lawyers from the Phoenix-based law firm Fennemore Craig, James Goodnow and Marc Lamber, started using Google Glass in a pilot program dubbed “Glass Action” as a means to record the effects of serious injuries on their clients’ lives.
As part of their experiment, they loaned a Google Glass device to one of their clients, a double amputee who lost an arm and a leg in a 2012 workplace injury. The experiment has so far proven successful, with the device recording the client’s day-to-day activities and providing invaluable data that clearly demonstrates severe limitations as a result of the accident.
Outside the realm of personal injury law, wearable devices could be also be used in other legal cases. In criminal cases, a GPS in combination with a wearable device may be used to establish whereabouts and either approve or disprove a person’s alibi. In an assault case where a person is claiming self-defence, data showing extremely elevated heart rate could support their claim that they felt their life was in danger.
Insurers and prosecutors looking to deny claims may also find it useful. As CEO and co-founder of data company Vivametrica, Dr. Rich Hu, told Forbes, insurers wouldn’t be able to force claimants to wear Fitbits, they could request a formal court order from whoever holds the data to release it to them.
Whilst data companies may not be required to provide the data, insurers could be granted access if they directly request it from Fitbit or other wearable tech company. There is no precedent as yet for insurers, but given how fast the technology is being accepted into the wider community, it is only a matter of time.
The main argument against the usefulness of wearable data is that can be easy to undermine the data. The nature of wearables is that they can be easily taken off, record false readings if they are bumped or dropped and can also be worn by someone other than the primary user. They key for a lawyer is to establish data authenticity.
As Christina Bonnington wearable tech writer for WIRED expressed in her article: “Data must be legitimate, accurate and related to the party in question. New technologies always undergo extra scrutiny, but if [a lawyer] can prove those three criteria have been met, then wearable data is admissible.”
Whilst it may be too early to tell how big a role wearable technology will play in the court room, it pays to be open-minded. It is unlikely that it will ever play the sole “expert witness” in a legal case, but combined with other medical information, this technology may have a permanent place in a lawyers’ arsenal of statistical tools.
Disclaimer: This information is designed for general information in relation to Queensland compensation law. It does not constitute legal advice. We strongly recommend you seek legal advice in regards to your specific situation.
CASE REVIEW: Smith’s Lawyers solicitor Peta Miller has written a case review.
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