A fellow Connecticut lawyer recently pointed out that fitness tracker data could be used as evidence in personal injury cases. Specifically, Atty. Ryan McKeen points out, information gathered from devices like FitBits, could end up being used by insurance companies to counter a physician’s claims and imply the victim is faking an injury or has made a condition out to be far serious than it actually is.
These assertions come from a recent Canadian lawsuit, in which the plaintiff willingly and knowingly submitting data from a fitness tracker to support her claims. Vivametrica, a company that gathers and analyzes fitness tracker data, supplied the requested information.
However, since this case came to light in mid-November, a few issues have arisen concerning the future of personal injury law and the usage of such data, versus the established approach of having physicians and other professionals examine a plaintiff, provide an assessment, and testify during a trial.
1. Data is Comprehensive – But Not Always Accurate
As The Independent pointed out in an editorial about this case, FitBits and similar devices show data for a far longer period than a physician can assess. This is both an asset and a drawback.
For one, a greater scope of data has results in employers and insurance companies tracking an individual’s habits to lower premiums, and in trials, shows his or her physical daily habits. In the case of the Canadian lawsuit, the plaintiff’s was far lower than average for someone of her age and occupation. On another hand, this data can be pulled, and perhaps skewed, to put a plaintiff filing a claim in a negative, irresponsible light.
As well, data gathered may span a longer period, but it doesn’t always present a complete view of a person’s physical and living habits. The Atlantic stated that certain devices count arm movements as walking, discount cycling as exercise, and cannot differentiate between deep and light sleep.
About the usage, Calgary attorney Simon Muller told Forbes, “Till now we’ve always had to rely on clinical interpretation. Now we’re looking at longer periods of time though the course of a day, and we have hard data.”
2. It May Replace Witness and Expert Accounts
Although only one case, so far, has taken this new and unchartered path, this approach follows the recent trend of watching and gathering from a plaintiff’s social media accounts. In trials, statements, images, and activity have been used to portray a plaintiff’s character and to counteract written or spoken claims by the plaintiff, witnesses, or experts.
Along these lines, The Atlantic hypothesized, data from electronic media could be seen as “absolute,” in spite of the errors listed above, and therefore supplant statements, exams, and tests from medical and other professionals.
3. Is It Even Legal?
Even before the Canadian trial above, the FTC questioned how fitness trackers collect data, how it’s stored, and if this infringes on an individual’s privacy. Right now, it all appears legal, and as the next evolution scheduled for 2015, FitBits and the new Apple Smartwatch will be able to measure a person’s heart rate and record sleep patterns.
However, companies like Vivametrica don’t simply store data; it’s assessed and compared to others using FitBits. As a result, the data may eventually be subpoenaed by courts for use as evidence – regardless of whether the plaintiff authorized this motion.
Additionally, The Guardian writes, insurance companies could make fitness trackers mandatory, to not only raise or lower auto and health insurance premiums but further to have quick access to data when a claim is presented.