Enter Exhibit A: Your Fitbit Data

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It is an unfortunate truth that in our overly-litigious society, there is real demand for new ways of proving that a person is faking an injury, and for the very same reasons, there is an equal demand for better ways of proving that a claimed injury is genuine. Court cases, totaling billions of dollars per year, often hinge on a lawyers ability to validate or debunk a claimed injury. In personal injury cases, plaintiffs sue businesses or other members of the general public for disabilities resulting from an accident or injury. In insurance fraud cases, payers are pressing charges on seemingly healthy individuals that are collecting disability checks illegally. For decades, doctors have been called upon to provide objective testimony in these lawsuits. In these cases, doctors would examine the patient for 30 minutes to an hour, and then discuss the patient’s injury, and the level of disability they are likely experiencing as a result. In some cases, private investigators have been hired in an effort to prove that a patient was faking their disability.

Now, lawyers are looking past doctors and private investigators to substantiate disability claims. Instead, they are turning to Fitbit data. The practice started with a personal injury case in Calgary in which a young woman that had been a personal trainer was injured in an accident and is now turning to Fitbit to prove the extent of her disability. In the case, the woman has agreed to wear a Fitbit for several months while activity data is collected. After the monitoring period, data analytics vendor Vivametrica will analyze her physical abilities, and benchmark them with other healthy females of a similar age. The woman’s lawyers hope that the data will show that the woman is less physically capable than she was before the accident, thus substantiating her claim. The benefit of turning to Fitbit data is that it extends the court’s view of physical ability to cover several months, far more than the 30 minute doctors office examination that legal decisions would have been based on when a doctors testimony was the only information available.

Legal experts expect the practice to have broad ramifications, “Wearables are yet another example of how technology may be a gold mine of potentially relevant [electronically stored information] for use in litigation,” says Neda Shakoori with McManis and Faulkner. While the data is currently being used to help substantiate a personal injury claim, experts agree that it will not be long before insurers begin subpoenaing activity tracker data as evidence in insurance fraud cases.


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