Data fit for the courtroom?
The next time you post the stats of your morning run to Facebook via RunKeeper or enter some health data to your iPhone, think about this: what if down the road someone sought to use it against you?
Last November, a Calgary lawyer made headlines when he said he would be using a Fitbit wristband device to provide courtroom evidence of injury involving a client who was a personal trainer in “peak physical shape” before allegedly being hurt in a car accident four years ago.
Simon Muller of McLeod Law LLP, head of the firm’s personal injury group, says although medical opinions have been provided, lawyers have had their say and chances to ask questions, he is now turning to Fitbit to boost his client’s case. The device is worn on the wrist and uses an accelerometer to track activity. It monitors sleep patterns and number of steps taken and stairs climbed.
Muller actually wants to use it to show how inactive his client has become since her injury and has asked Vivametrica, a company that analyzes health data from personal devices, to compare his client’s stats against other people in her age range and profession. Vivametrica is an open source data analytics platform that pulls data from smartphones and wearable fitness devices — with user consent — to get a picture of health trends.
Klein says he thinks there is the potential for holes in the evidence the Fitbit will provide but it’s Muller’s client’s prerogative to use it as one form of the evidence to help her claim that she’s not as active as she used to be.
He says it’s still “very early days” in terms of personal health collection devices and apps that do everything from monitor your heart rate to track how far you went on your morning run. But as personal devices that collect information become more sophisticated and more common the detection or analysis of body conditions can be done more easily outside the traditional circle of care. Hayes says that means all of a sudden personal health information is “outside the regulatory framework” set up thus far.
Not only is the individual’s information potentially not particularly accurate — they may deliberately try to be less active — but in this case they will also be bringing in an expert to say what the average activity level is “which is subject to all kinds of frailties as well,” says Hayes.
Mark MacNeill, a partner and personal injury lawyer with Brauti Thorning Zibarras says a Fitbit is “just another tool in the basket, but I don’t think it’s revolutionary because you’re still going to need to lead other evidence and use it in combination. Everybody is searching for that objective thing. It’s unfair to say the defence side is completely cynical but they will probably have legitimate questions about its use.
Wow that is thinking outside the box, and I'm sure Mr. Muller is not basing his whole case on the Fitbit, as the one lawyer in this article suggest, I'm sure it's just one tool that will give someone a different perspective of the case, would love to have him as my lawyer.
I wish you'd follow up with the results of this approach. Surely by now this evidence must have been approved or rejected ?