As has been highlighted by a number of commentators, so-called “wearable” technology has the capability to transform discovery practices in litigation. Michigan case law makes the data generated from wearable technology particularly useful in third party No-Fault litigation. Perhaps the most ubiquitous form of wearable technology is the FitBit, which is a device for tracking certain health goals. Many workplace conversations now delve into employees discussing the number of steps for the day or average hours slept for the week. While seemingly innocuous, the data generated from FitBit could potentially be used with devastating results in a personal injury claim by either the plaintiff or the defendant.
Among the most frustrating aspects of No-Fault insurance defense in third party claims for defense counsel is a plaintiff’s recitation of the ways that an injury has affected a plaintiff’s ability to lead a normal life. Statements almost without fail include an inability to perform household chores, yardwork, as well as other activities, such as exercising. Rare is the case where a plaintiff did not exercise rigorously or otherwise engage in physical activities before an accident. In many instances, defense counsel is forced to take plaintiff’s statements for face value, lacking objective evidence to challenge the validity of such statements.
Any plaintiff is well advised to list a multitude of activities. Under the Michigan Supreme Court case of McCormick v Carrier, 487 Mich 180, 215; 795 NW2d 517 (2010), establishing the requisite “serious impairment of a bodily function” requires a plaintiff to demonstrate that his or her general ability to a normal life has been affected by an injury. Consequently, a plaintiff that previously golfed or participated in triathlons prior to an automobile accident, but who can no longer perform such activities as a result, is well suited to have a positive outcome in his or her case. Verification of such activities by defense counsel has been somewhat limited.
Wearable technology provides defense counsel, and plaintiff’s counsel, one previously unavailable means in which to objectively verify the effects of an injury on a person’s daily life. Focusing specifically on FitBit, one could imagine a plaintiff that prior to an automobile accident walked 5,000 steps a day, but after an accident was only able to walk 2,000 steps. Laid bare in objective terms for both plaintiff and defense counsel is the effect that the automobile injury had on a plaintiff’s ability to lead his or her normal life. While not dispositive, resulting from the accident, plaintiff is able to walk 3,000 less steps per day. The alternate scenario can also be envisioned with little imagination, a seemingly injured plaintiff suffering no limitation on his or her ability to lead a normal life.
FitBit and other emerging technologies present opportunities to succeed in litigation. Failing to incorporate, not only wearable technology, but also more well-established social media websites, such as Twitter and Facebook, in discovery techniques can put your client at a disadvantage. Any number of pieces of evidence, or lack thereof, can prove to be the difference in the outcome of a case. Michigan law in the context of third-party no-fault litigation is particularly conducive to using technology to strengthen or weaken an argument.