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Activity Trackers and Litigation

Victor Lewin - Wednesday, June 07, 2017

Fitness trackers have become increasingly popular. They provide a fun way to visualize your steps, sleep and general activity levels. You can even monitor your heart rate and overall health. These fun devices also allow you to link up with friends and family and participate in daily, weekly and monthly competitions.

More recently, fitness trackers are being used in litigation. The first personal injury case that used activity data from a Fitbit is out of Calgary. It involved a woman injured in an accident. Prior to the accident, the plaintiff was employed as a personal trainer. At the time of her accident, Fitbits weren’t on the market and therefore her lawyers were relying upon her employment as evidence that she led an active lifestyle. The plaintiff’s lawyers intended to use the data from her Fitbit to show that her activity levels since the accident were below the baseline for someone of her age and previous employment. The data was used to back up what the plaintiff had been saying all along – her injuries from the accident were preventing her from living the active lifestyle she was used to.

It is likely that, as technology becomes more sophisticated, it will be used more often in litigation.; What does this mean for accident victims? The insurance company cannot force a plaintiff to wear an activity tracker for purposes of assessments, however it remains to be seen whether an insurer could compel the disclosure of data from the trackers under the disclosure obligations of the Civil Procedure Rules.

While, as was the case of the Calgary plaintiff noted above, activity tracker data may in some circumstances support the plaintiff’s claim that they no longer can engage in activity as they once did, the opposite is certainly possible. Data may be used to discredit plaintiffs in circumstances where they are claiming to be impaired physical activity or suffering from insomnia as a result of an accident.

Lawyers must be careful when using data from activity trackers to support or undermine a plaintiff’s claim for damages. When comparing pre and post accident activity, the data may present valuable information however when comparing this information to a baseline for the general population, there are a lot of variables.

In the end, data from activity trackers is just one piece of the puzzle when evaluating an injured party’s claim.

 

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