When you hear the word “FitBit,” you usually associate the physical activity monitor with fitness; however, after a recent case in Canada, FitBit might very well be associated with personal injury evidence used in Litigation.

In a personal injury case in Calgary, Canada, the law firm of Mcleod Law is using the plaintiff’s FitBit activity to support her personal injury claim. The plaintiff, who was a personal trainer, was injured in an accident four years ago. The attorneys representing her are seeking to demonstrate that her activity levels are lower than the baseline of a woman her age and profession, in order to prove damages. Among other things, Fitbit monitors physical activity by measuring steps taken by the individual wearing the device. The plaintiff’s attorneys hope to formulate a ‘quantitative representation of the claimant’s activity during their normal weekly routine.’

Logistically, the law firm is not using the raw FitBit data, but will be using analytics company Vivameterica to analyze such data. This company will analyze the plaintiff’s information and compare the data to other databases showing average activity of an individual with similar weight, age, gender, body mass index, etc.

This case is the first of its kind in that it could set a precedent for evidence of personal data collected through wearable devices in personal injury cases; however, there are many out there who are skeptical of this type of data being used in the courtroom.

Skeptics are concerned that this kind of data could lead to potential manipulation on the part of the plaintiffs, as well as false representations of activity. For example, if a plaintiff knows their FitBit data will be analyzed in court, they might be overly active so that there wearable device could pick up on such activity, in order to prove damages. In the alternative, individuals take off their Fitbit device throughout the day for various reasons. This could lead to a false read of an individual’s true physical activity.

Although this type of evidence does raise some issues, it could be an excellent tool for attorneys in proving damages, or in the alternative, for mitigating such damages. As technology advances, so too must our litigation system. It is very possible that we will be seeing data from wearable devices being used in the future.

Melissa Klafter

Melissa Klafter has a JD from St. John’s University School of Law and plans to pursue a career in Personal Injury Law. You can find her binge-watching her favorite TV shows, rooting for the Wisconsin Badgers, and playing with her kitty, Phoebe. Contact Melissa at staff@LawStreetMedia.com.

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On Monday night the highly anticipated case of the fatal shooting of Michael Brown by police officer Darren Wilson reached its conclusion. The grand jury found that it did not have sufficient evidence to indict Wilson. In light of this controversial result, there has been speculation as to whether Brown’s family will bring a civil lawsuit against Wilson and the Ferguson Police Department.

The Brown family would have to show that Wilson intentionally or negligently killed Brown. The family could sue Wilson and city officials for economic damages, such as lost future income and funeral expenses, as well as punitive damages.

Although there were no criminal charges brought against Wilson, Brown’s family might have a better chance at succeeding in a civil lawsuit due to the lower burden of proof. In criminal court, a case must be proven beyond a reasonable doubt in order to validate a criminal conviction. In other words, there must be no reasonable doubt in the minds of reasonable persons that the defendant is guilty. Contrastingly, in a civil lawsuit the standard of proof is preponderance of the evidence. In this case, the Brown family would have to show that Wilson was more likely liable than not.

In the past, there have been cases similar to this, where a plaintiff’s family was successful in such suits. Most notably was the wrongful death lawsuit against former athlete O.J. Simpson. Although a jury acquitted Simpson of murder, a civil jury found him liable for wrongful death of his former wife and her friend and ordered Simpson to pay $33.5 million in damages to their families.

Although the aftermath of the criminal case is still being felt all over the country, it will be interesting to see how the civil lawsuit plays out once things settle down.

Melissa Klafter

Melissa Klafter has a JD from St. John’s University School of Law and plans to pursue a career in Personal Injury Law. You can find her binge-watching her favorite TV shows, rooting for the Wisconsin Badgers, and playing with her kitty, Phoebe. Contact Melissa at staff@LawStreetMedia.com.

The post In the Aftermath of Ferguson, Will There Be a Wrongful Death Suit? appeared first on Law Street.

The Ebola outbreak, which at first seemed like a distant fear, has become a reality in the United States, especially for the family of Thomas Eric Duncan. Duncan was the first individual to have died from Ebola on American soil. In the aftermath of his death, there has been speculation as to whether Duncan’s family will pursue a liability lawsuit against the hospital that treated Duncan. However, under Texas Law, it would be very difficult for Duncan’s family to succeed with any claims against the Hospital.

The Facts

On September 25, 2014 Thomas Eric Duncan went to Texas Health Presbyterian Hospital where he was treated for a fever, abdominal pains, and vomiting–all symptoms of Ebola. Duncan was not tested for Ebola, and in fact, he was sent home with pain relievers and antibiotics. He was diagnosed with Ebola after returning to the hospital when his symptoms worsened. On October 8, 2014, Duncan died.

The Law

In 2003, Texas passed a tort reform that gave an extra layer of protection against civil liability lawsuits for Emergency Room doctors and nurses. Under this reform, plaintiffs must demonstrate “willful and wonton” conduct in order to prove negligence. This is one of the highest legal burdens to prove in the country.

This standard requires that the individual’s conduct creates “an extreme risk of danger” and that the individual has “actual, subjective awareness of the risk involved and chooses to proceed in conscious indifference to the rights, safety, or welfare of others.” Relating to this situation, to successfully prove negligence, Duncan’s family must show that the ER doctors not only created an extreme risk of danger, but that they actually knew about the danger, and continued to act in a manner that demonstrated their indifference toward Duncan. An important aspect of this question would be to determine what exactly the doctors and nurses knew about Duncan’s condition during his first visit.

Even if liability were proven, the tort reform established a $250,000 cap for non-economic damages in a healthcare lawsuit. So even if Duncan’s family were able to prove willful and wonton negligence, they would most likely be limited to $250,000 in damages.

The Reality

The harsh reality is that Duncan’s family probably has a slim chance at succeeding in a lawsuit against the hospital. On one hand, the 2003 tort reform has been a major success. It has caused medical malpractice claims to decrease by nearly two thirds between 2003 and 2011. On the other hand it begs the question, “at what cost?”

Melissa Klafter

Melissa Klafter has a JD from St. John’s University School of Law and plans to pursue a career in Personal Injury Law. You can find her binge-watching her favorite TV shows, rooting for the Wisconsin Badgers, and playing with her kitty, Phoebe. Contact Melissa at staff@LawStreetMedia.com.

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Sometimes in life you hear stories to which the only way you can respond is to say, Huh? Maybe even, What? How? Why? I am sure this has happened to all of you before, and everybody should know exactly what I mean. So, this week’s post addresses this very issue with bad lawsuits that make you say all of the above — What? How? Why?

What?!: Me, Myself, and I

A city employee in St. Paul, Minnesota, while performing her duties, hit and damaged Megan Campbell’s car. As most reasonable people would, Campbell expected the city to pay for the damage and, to further this point, she filed a claim asking for reimbursement of it. Sounds reasonable, right? Nobody in his right mind could deny the validity of of this claim. This should be an open-and-shut case, but if I have not already convinced you of this, let me add some details for you.

Megan Campbell, a St. Paul Parks and Rec employee, was driving a supply van for the city when she turned and hit a parked car belonging to one Megan Campbell. Campbell was upset that the city would hire such reckless drivers, and she was angry that Campbell was allowed to drive a city vehicle. Campbell decided that she would not get much from Campbell, so she went after Campbell’s employer.

Courtesy of Giphy.

Following?

In case you are having trouble, let me clear up the details for you: city employee Megan Campbell hit her own personal car while driving a city vehicle and then filed a claim saying she thought the city should pay for the damage since it was a city employee who hit her car. What?

How?!: This Club Is on Fire

Katelyn Sobon is proof that with enough effort you can definitely heat up a dance floor. Sobon was sitting at the Trilogy Nightclub and Hookah Lounge in Philadelphia while people danced wildly on the nearby stripper pole — which, as the club later clarified, was not actually a stripper pole, but a regular pole that patrons — specifically girls — could pose in front of and take pictures looking like a stripper; but, again, it was not a stripper pole. In their gyrating, one of the dancers hit the leg of Sobon’s table, knocking the hookah over and spilling hot coals down the front of her top, causing her breasts to be burnt. I’m sure this is not what she wanted people to mean when they said, “You look hot in that dress.”

Sobon is suing for the pain and embarrassment of the whole situation, but the club manager does not buy it. He wants to know why she has come back to his club several times since the incident, asking for free admission in lieu of a lawsuit — even after she filed — if she was so embarrassed. I don’t know who will win, though I have my guesses, but I do know that Alicia Keys said it best when she sang, “This girl is on fire.” But really, how does stuff like this happen?

Why?!: Micro-Management

When it comes to microwave journalism, you had better do your research. You wouldn’t want to mess that stuff up. The makers of the movie “American Hustle” are learning that lesson the hard way. I’m about to tell you about a scene from the movie, but if you have not seen it, note that this is in no way a spoiler: at one point in the movie, Jennifer Lawrence’s character said she does not believe in the technology behind the microwave. She claimed that contraption just zapped the nutrition out of the food, and she had proof: an article written by Paul Brodeur. She even hands the magazine with the article over to Christian Bale’s character.

Who cares, you ask? I’ll tell you who. Paul Brodeur cares, that’s who. The real journalist behind the real article stomped his foot, crossed his arms over his chest, and said with a poked out lip, Hey! That’s not what I said. You lied! I said that the technology was shaky and unproven not that it zapped out the nutrition. I’m gonna tell on you. Now all the scientists hate me and nobody wants to play with me and it’s all your fault. I hate you! I hate you! I hate you! And then flung himself to the floor before filing a million dollar lawsuit for libel and defamation. (Disclaimer: this is in no way a direct quote or reaction from Paul Brodeur. Mr. Brodeur, please do not sue me. I do not have a million dollars to give you.)

My final thoughts: really, Brodeur, really? Just … why?

Courtesy of Giphy.

So there you have it. The what-how-why stories from the legal world. I just don’t even know what else to say.

Ashley Shaw

Ashley Shaw is an Alabama native and current New Jersey resident. A graduate of both Kennesaw State University and Thomas Goode Jones School of Law, she spends her free time reading, writing, boxing, horseback riding, playing trivia, flying helicopters, playing sports, and a whole lot else. So maybe she has too much spare time. Contact Ashley at staff@LawStreetMedia.com.

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