Shrinking Damages with Smart Data

by Wilson Elser
Contact

Wilson Elser

Recently, an elderly couple – who were both plaintiffs, one for personal injuries and the other for loss of consortium – gave testimony about their active lifestyle (outdoors and in the bedroom) before a slip-and-fall accident. Some of their claims were hard to believe given the slow, measured pace with which they entered the room, but they are the only people who know the intimate details of their lives.

While it’s possible this couple was truthful, insurance claims frequently suffer from exaggerated injuries and malingering. According to the Coalition Against Insurance Fraud, fraud constitutes 10 percent of property and casualty losses each year, and only 8 percent of people believe they will get caught if they commit insurance fraud.

Smart Data in Evidence
“Smart data,” however, gradually is starting to impact insurance investigations and the discovery process.  Smart data is digital information logged through common use of cell phones, electronic tracking and self monitoring tools. These devices have become embedded in the fabric of our daily lives, making them useful allies in a litigation context. Earlier this year, pacemaker data was a key piece of evidence in charging a man with arson and insurance fraud after he purportedly packed a suitcase, broke a window and carried certain items to his car upon waking up to a fire in his home. Data from the man’s pacemaker was reviewed for signs of exertion, leading a cardiologist to opine that it was “highly improbable” the claimant gathered his belongings in such a short period of time due to his medical condition.

In personal injury cases, a primary area of focus is learning what things the person used to do that can no longer be done or must be performed on a limited basis. With the advent of wearables, smartphones and self-tracking and implanted devices, data is now available that may confirm or refute a plaintiff’s claims.

Headlines were made in a civil case after a law firm planned to use activity data from a Fitbit® to help prove the effects of an accident on their client in a personal injury case. The plaintiff was a fitness trainer who led an active lifestyle. To prove her injuries, data from the Fitbit was used to show the plaintiff’s activity levels were under a baseline for someone of her age and profession as a result of the accident.

Wearables, such as the Fitbit, also are finding traction with our aging population. As older people become more engaged in their health due to chronic diseases, a study by Accenture found that 48 percent of Americans over age 65 are willing to use wearables and that 17 percent of Americans over age 65 already use wearable technology. As such, activity/health tracking apps or other wearable devices used by a claimant should routinely be explored.

Smartphones also contain a plethora of data that may assist in the defense of a claim. For example, the iPhone is capable of logging a user’s Frequent Locations – a feature that is generally enabled when authorizing Location Services for the Maps app and other applications. (To view Frequent Locations on an iPhone go to Privacy | Location Services | System Services | Frequent Locations.) This data generally is kept for approximately 45 days. If enabled, the Google Maps app also will log a detailed and searchable history of a user’s location history.

There are many other apps capable of tracking user location, and a list of apps with Location Services enabled should be demanded during discovery, where appropriate. While this data may not reveal where a plaintiff was at the exact time of a slip-and-fall event, it may reveal a plaintiff’s daily routine or the frequency of visits at/near the location where the accident happened and provide insight as to whether an injured plaintiff is confined to home or living an active lifestyle. Additionally, a plaintiff’s claim of confinement may be tested through apps such as Uber and other ridesharing services that track user rides.

In addition, the injured plaintiff may complain of disruptive sleep patterns following an accident. In 2016, Apple added the Bedtime feature to its Clock app, essentially tracking user sleep patterns. Other apps are available to monitor sleep patterns and health concerns, making it easier to prove (or disprove) these claims.

Finally, photographs can be a critical component to any case. Most plaintiffs do not provide digital files of photographs but rather persist in providing hard copies or PDFs at best. Digital photos are embedded with data that may reveal who took the photograph; the device with which the photo was taken; and date, time and location information in some instances. In 2015, Apple introduced Live Photos (which are actually 3-second videos) that may provide even more context surrounding a photo. Through Google’s Motion Stills app, these photo files may be more easily shared. Discovery demands should therefore request identification of the device with which the photo(s) were taken, inspection/production of the digital files and Live Photos where available.

Conclusion
In closing, smart devices may not be perfect and may be manipulated by plaintiffs or used by others to create false readings. Nonetheless, once these devices are discovered, action should be taken to preserve, acquire and authenticate any relevant data to ensure its legitimacy and accuracy in defense of personal injury claims. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wilson Elser | Attorney Advertising

Written by:

Wilson Elser
Contact
more
less

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.