Your damages could depend on what you wear. One of the most difficult issues during trials of negligence claims, is establishing the amount of compensation to make the plaintiff whole again. In some cases, the damages depend on explaining the physical limitations to the plaintiff's daily activities following any injury. Typically, the plaintiff parades some expert to give an opinion and then tries to subjectively describe the physical limitations. Until now.
In a first of its kind, a plaintiff in Calagary, Canada turned to Fitbit to track her daily activity levels after an injury. Before her injury, the plaintiff was a personal trainer and extremely active. Using the Fitbit data, or other wearable tracking device, the plaintiff is transferring the data to an analytics company called Vivametrica. The company compares the individual data collected from the plaintiff’s use of her Fitbit, to the general public. In this way, the jury can be provided with a quantifiable demonstration that the plaintiff’s activity levels are below average following her injury.
Will we see a Fitbit in the courtroom in Ohio? The answer to that isn’t a question of if, but when. It will not, however, be limited to a plaintiff’s proof of damages. According to Matthew Pearns from Claims Canada, any device that tracks activity information will in essence be “the body’s black box,” used much in the same way that black boxes are used to reconstruct accidents. Data from these devices, including iPhones, iPads, or any other mobile devices that track daily movement, will become the next generation of discovery requests. Defendants will seek this information to discredit the plaintiff, as in to prove the plaintiff’s daily activities are not as limited as described. Fitness trackers have the ability to quantify minute-to-minute information in a way that was never before possible. The infomration could be the tipping point for the jury’s consideration of compensatory damages.
This concept is new and untested in Ohio, but will quickly gain ground. Currently, there are no cited incidences of using Fitbit in the courtroom in Ohio, but the Civil Rules do not prohibit the discovery of this information. A request for the raw data from the activity tracker is no different than seeking social media. We shall see this type of discovery become common place in the coming years as the devices become more integrated into society. For now, it’s something to think about when a client comes through the door.
