Wearable fitness trackers are all the rage. They measure your heart rate, sleep, eating habits, and more. They follow you on your wrist wherever you go. And insurance companies and law firms are keenly aware of this.
FuelBand, Fitbit, Jawbone and other such exercise gadgets store personalized data about their wearers, so that it may afterwards be analyzed. While intended for a user’s own benefit, this gold mine of information is presently being used in a personal injury case in Calgary, Alberta. While it is a Canadian case, the implications of it are gathering international attention..
It could be the first time objective evidence is available to quantify an injured party’s loss, instead of the traditional way of gathering medical evidence (i.e., booking a medical appointment and self-reporting to a doctor).
In this case, it is the Plaintiff, and not the defendant insurance company, who wants to introduce this evidence at trial. The Plaintiff is a young woman who was a fitness instructor until her motor vehicle accident. With this evidence, she wants to prove that she is less physically active than the normal population following her accident. As a wearable fitness device data contains large swaths of unreadable computer code, this information will need to be processed and analyzed by a data analytics company (Vivametrica), and this analysis will then be produced into court. However, many challenges arise from such use of these new technologies.
The possible issues include the reliability of data documented: As with any technology, a wearable exercise gadget can be hacked. Moreover, some wearable fitness tracker users have reported that their device counts non-exercise movements as exercise (for example, a woman reported her wearable interpreted her knitting as walking). Another is in the aalysis: Analytics companies are in fact for profit entities. One would imagine that like any company, they may have internal secrets. Therefore, they may not be obligated or willing to explain how their trade sensitive technology works to a court, putting it into public record.
Defendants could also use this technology: Defendants may want to adduce this evidence into court to prove that injured parties are not so “injured” or their quality of life and abilities are not materially hampered. Access to the data could give insurers what may be objective evidence of the Plaintiff’s rehabilitation and it could give them ammunition to lower settlement amounts.
Another issue is that of privacy: How would you feel if an insurer obtains data of your daily activities ?
Some counsels suggest that while there are serious issues with this evidence being introduced as evidence at trial (because of its reliability and the reliability of its analysis), this may still be a good tool before trial, in mediation for example.
In conclusion, no one knows if wearable fitness tracker data analysis will be accepted as evidence in court. We will have to wait and see. This judgment will pave the way.
Our Ottawa personal injury and accident lawyers are specifically trained to handle such issues. If you or someone you care about was injured in an accident, please contact one of our lawyers for a free consultation. We work on a no-fee-until-you-win basis. Call us at 613-315-4878 or 613-563-1131. Marc-Nicholas Quinn, Ottawa Injury and Accident Lawyer.