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Litigation in Brief
Spring 2009
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DeCaro, Doran, Siciliano,
Gallagher & DeBlasis, LLP
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“BLACK BOX” TECHNOLOGY AND ITS
ADMISSIBILITY IN CIVIL LITIGATION
By Jeffrey R. DeCaro
Over the past fifteen-twenty years, and especially since the September 11 disaster, nearly everyone is now familiar with the term “Black Box”. That term refers to the nearly indestructible box that contains data regarding the operation of an aircraft’s equipment, as well as data regarding the speed, altitude, and flight characteristics of the aircraft during the moments leading up to an accident.
In the early 1990s, General Motors began including black box technology in automobiles on a limited basis. In passenger vehicles, black box technology was initially a component of the airbag monitoring system.
Over the past ten years, the technology has improved such that pre-crash data can also be recorded, including such things as vehicle speed, braking, engine speed, throttle position, seat belt usage, and more. However, equipment to access this data is not yet commercially available for many of the data recorders.
Just recently, NTHSA passed a regulation that will require all passenger vehicles weighing 8,500 lbs. or less to have a data recorder capable of recording pre-crash speed. That regulation will apply to all passenger vehicles under 8,500 lbs. manufactured on or after September 1, 2010. See, 49 C.F.R. 563. The regulation also requires that the equipment necessary for data retrieval be made available to the public.
Presently, the data stored in many passenger vehicles can only be accessed with proprietary, manufacturer-specific equipment. In these instances, the manufacturer will need to help in obtaining the data.
Several passenger vehicle manu-facturers have, however, made the downloading equipment available to the general public, including GM, Ford, Isuzu, and Saab. This equipment can be obtained through Vetronix Vosch Group (www.vetronix.com). This website also offers a list of those American made vehicles where recorded data can be accessed.
In addition to “Delta-V” data, some data recorders are capable of recording a large amount of pre-crash data. The duration of pre-crash recording varies widely among the different makes and models of vehicles made in America.
For example, current GM systems can record approximately five seconds of pre-crash data. Included among the pre-crash parameters most often recorded are vehicle speed, engine speed, throttle position, and brake application status.
Generally, data stored in a data recorder is permanent. That is, the data remains locked and is not readily lost. There are, however, exceptions to that rule. For example, certain crash data files stored in GM products can be deleted under certain conditions.
In the last five years, “Black Box” technology has captured the attention of numerous groups, including vehicle owners, civil rights organizations, insurers, lawmakers, and the media, with much of the attention focused on concerns over privacy violations.
In 2004, California became the first state to enact legislation requiring manufacturers to disclose to customers whether data recorders are installed in certain vehicles. That law also prohibits the downloading of data without the owner’s permission, or a court order.
A recently enacted statute in the Commonwealth of Virginia requires manufacturers of new vehicles equipped with a recording device sold or leased in the Commonwealth to disclose that fact in the owner’s manual.
Clearly, this type of data can be critical for both plaintiffs and defendants in reconstructing accidents. It can completely undermine or support a driver’s testimony as to how an accident occurred, and it can potentially mean the difference between a large personal injury award and a defense verdict.
To introduce this information at trial, a party will need expert testimony from someone knowledgeable about the recorded data, and its downloading process.
The information contained in the data recorders currently on the market has been accepted in both civil and criminal litigation, and in both state and federal courts throughout the United States. The general rule followed by most courts that have considered the issue is to allow the admission of such data, so long as it is shown to be reliable, and is accompanied by a proper, traditional reconstruction by an expert in the field
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Recent Developments - Maryland
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Doctrine of Informed Consent - No Requirement of Physical Invasion
A driver had a license suspension and review due to running his car into a house during or after a seizure. Following this event, the Maryland Vehicle Administration (MVA) and its internal group, the Medical Advisory Board (MAB), required the driver to file affidavits certifying he was seizure free and file a report from his treating physician. The agencies then failed to ensure the driver followed these requirements. The driver thereafter admitted to causing another “fender bender,” continued having seizures and continued operating his vehicle. The driver subsequently rear ended a vehicle, killing a father and his three children. The widow/mother filed wrongful death and survival actions against the driver, the MVA and the MAB. The Maryland Court of Special Appeals upheld the trial court’s ruling that there was no relationship between the State agencies and the decedents to create a duty upon which the mother/widow could sue. Pulliam v. Motor Vehicle Administration
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Workers’ Compensation - Injuries Arising Out of Employment
Claimant had diabetes and experienced episodes of lightheadedness associated with hypoglycemia. During his regular business day, Claimant had an episode of lightheadedness and decided to travel from the second floor to the first floor to get some air before eating his lunch. As he reached the top of the stairs, Claimant fell and landed, unconscious, at the bottom of the staircase. Claimant was initially awarded workers’ compensation benefits, but the employer appealed, arguing that, although the injury happened in the course of his employment, the injury did not arise out of his employment. Upon this argument, the Maryland Circuit Court reversed the award of benefits and the decision was upheld by the Maryland Court of Special Appeals. Youngblud v. Fallston Supply Co., Inc.
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Tort Liability - Elevators
A hospital elevator came to an abrupt stop, injuring a passenger. The passenger was immediately taken to the emergency room and treated. The injuries sustained required her to undergo surgery for her back and hip. The passenger and her husband sued the hospital and the elevator maintenance company for negligence and loss of consortium. The jury found in favor of the passenger. The case was appealed and the Maryland Court of Appeals took certiorari to review case law on an elevator owner’s liability. The Court of Appeals reaffirmed prior case law stating an elevator owner owes passengers “the highest degree of care and diligence practicable under the circumstances. John Hopkins Hospital v. Corriea
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| Recent Developments - Virginia |
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Wrongful Death - Use of Criminal Pleas
An automobile accident occurred, killing the car’s passenger. The car’s driver pled guilty and was convicted of manslaughter in the criminal trial. A civil case for wrongful death was brought by the estate of the deceased passenger while the driver was incarcerated. In order to prove their case, the defense attorneys sought to use the driver’s guilty plea but had failed to name him as a witness. Four days before trial, the attorneys requested a transport order to bring the driver from prison to testify. Over the plaintiff’s objections and after denying the transport request, the trial court allowed the use of the guilty plea and conviction. The Virginia Supreme Court reversed and remanded the case. The Court ruled that the plea and conviction were inadmissible under the hearsay rule as the driver would have been able to testify, thereby admitting the plea and conviction, if the defense attorneys had properly pursued him as a witness. Ayala v. Aggressive Towing and Transport, Inc.
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Medical Malpractice - Disclosure of Settlements
In September 2008, the Virginia Supreme Court strengthened the rule that terms of settlements in wrongful death cases must be made public. The challenge came when a newspaper intervened and demanded disclosure in a case with sealed settlements of four wrongful death claims arising from tainted cardiac surgery medication. The case tested a 1988 ruling that required public disclosure of settlement terms in wrongful death cases. Due to strong public policy favoring public disclosure, the court ruled that terms of settlement in wrongful death cases must be disclosed, even when reached through private mediation, as was done in the underlying case. Perreault v. The Free Lance-Star.
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Workers’ Compensation - Scope of Employment
A kennel assistant at a veterinary office pursued an escaped dog across a nearby busy highway. The employee was struck by two cars and filed a workers’ compensation claim. The appellate court affirmed the Commission’s decision that the evidence sufficiently demonstrated that the injury arose out of and in the course of the employee's employment because (1) it was reasonable to find that it was among the employee's duties to attempt to retrieve loose animals, even if the animal left the premises and (2) the incident was not unexplained. The Commission and the court relied on evidence of previous retrieval tasks that required employees to cross the highway. This evidence supported the conclusion that the claimant’s employment duties could reasonably have been expected to take him into and across the highway. The Virginia Court of Appeals emphasized that “course of employment” does not require an injury to arise from a reasonable act. A claimant need only to show that the act causing the injury was reasonably connected to the fulfillment of employment duties. Town and Country Animal Hospital v. Deardorff
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| Intentional Torts - Intentional Infliction of Emotional Damages and Business Conduct
An independent grocer went out of business, sued a supermarket chain for intentional infliction of emotional distress, and won in a jury trial. The Virginia Supreme Court overturned the judgment and entered final judgment in favor of the supermarket chain. The Court stated the “tort of intentional infliction of emotional distress does not encompass such personal consequences of business conduct.” The court found that causing the independent grocer to go out of business was not an act intended to cause him personal emotional damage and the independent grocer could not win his suit on this claim. SuperValu, Inc. v. Johnson
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Recent Developments -
District of Columbia
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Workers’ Compensation - Possibility of Concurrent Permanent Total and Partial Disability Benefits
A woman suffered an injury while working, one which caused an injury to one scheduled body part and aggravated a preexisting condition of an unscheduled body part. The D.C. Court of Appeals found that the workers’ compensation statute allowed for concurrent permanent and temporary benefits, but was silent on concurrent permanent partial and total disability benefits. Therefore, the court remanded the case stating that it was legally possible to have concurrent partial disability of a scheduled body part with total disability of an unscheduled body part for workers’ compensation benefits. On remand, the woman was permitted to recover causally related medical costs but was denied vocational rehabilitation and disability because she was found not to have a disability. The District of Columbia Court of Appeals affirmed the decision, adding that even if she had been found to have a disability, her failure to file timely notice with her employer would have barred her claims. Howard University Hospital v. D.C. Dep’t of Employment Services
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Tort Liability and Workers’ Compensation - Employee Assigned to Employer by a Temporary Services Agency
A temporary employee of a trash hauling service suffered a leg injury, which required amputation, when attempting to climb aboard a truck. The employee was covered by workers’ compensation policies of both the temporary service agency and the trash hauling company. The employee received benefits from the temporary service agency’s insurer but chose to sue the trash hauling company for negligence. The D.C. Court of Appeals held that the temporary employee was an employee of the trash hauling company despite his temporary status, was covered by workers’ compensation and was therefore not entitled to sue the trash hauling company. USA Waste of Maryland, Inc. v. Love
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Employment Law - New Employment Terms and Implied Consent
An employee accepted a job with a monthly housing allowance due to the fact that the employee maintained two residences, one near his work and another in New Jersey for his wife and family. After four years and the employee’s divorce, the employer eliminated the monthly housing allowance. Three years later, within the statute of limitations, the employee sued for breach of contract.
The trial court held for the employer on summary judgment. The D.C. Court of Appeals affirmed, stating that “once an employee learns about a new employer policy limiting benefits but elects to stay on the job and accept compensation, that decision is sufficient to imply an agreement to continue working subject to the new limitation.” Kauffman v. International Brotherhood of Teamsters
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| Workers’ Compensation - New Standard for Work-Related Psychological Injuries
An employee of the District of Columbia Public Schools filed a workers’ compensation claim for temporary total disability benefits. She claimed that a physical workplace injury exacerbated a pre-existing psychological disorder, causing her to suffer “depression, panic attacks, confusion, auditory hallucinations, and memory loss.” Applying the traditional “objective standard” from Porter v. District of Columbia Dep’t of Employment Servs., 625 A.2d 886 (D.C. 1993), an ALJ found that the claimant had shown evidence of a cognizable injury, demonstrated that her aggravated psychological condition arose out of her workplace injury, but she failed to show that a person of normal sensibilities with no history of mental illness would have suffered a similar psychological injury. Upon appeal, the Director of the District of Columbia Department of Employment Services affirmed the ALJ’s decision. In an en banc, unanimous decision, the D.C. Court of Appeals found that exacerbation of a pre-existing psychological injury is akin to the aggravation of a pre-existing physical injury or complications flowing from a compensable injury. The Court of Appeals overturned the Porter decision and held that cases involving physical-mental claims should have the same standard as aggravation or complication claims relating to physical injuries. McCamey v. D.C. Department of Employment Services
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17251 Melford Boulevard
Suite 200
Bowie, Maryland 20715
(301) 352-4950
Fax - (301) 352-8691
3930 Walnut Street
Suite 250
Fairfax, Virginia 22030
(703) 255-6667
Fax - (703) 299-8548
740 Stagwell Road
Mail: P.O. Box 338
Queenstown, Maryland 21658
(410) 827-5013
Fax - (410) 827-4323
www.decarodoran.com
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| In This Issue |
“BLACK BOX” TECHNOLOGY AND ITS
ADMISSIBILITY IN CIVIL LITIGATION |
| Recent Developments - Maryland |
| Md. - Wrongful Death and Survival Claims - Claims against the MVA |
| Md. - Workers’ Compensation - Injuries Arising Out of Employment |
| Md. - Tort Liability - Elevators |
| Recent Developments - Virginia |
| Va. - Wrongful Death - Use of Criminal Pleas |
| Va. - Medical Malpractice - Disclosure of Settlements |
| Va. - Workers’ Compensation - Scope of Employment |
| Va. - Intentional Torts - Intentional Infliction of Emotional Damages and Business Conduct |
| Recent Developments - District of Columbia |
| D.C. - Workers’ Compensation - Possibility of Concurrent Permanent Total and Partial Disability Benefits |
| D.C. - Tort Liability and Workers’ Compensation - Employee Assigned to Employer by a Temporary Services Agency |
| D.C. - Employment Law - New Employment Terms and Implied Consent |
| D.C. - Workers’ Compensation - New Standard for Work-Related Psychological Injuries |
| About The Firm |
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About The Firm
DeCaro, Doran will be holding its 33rd annual Defense Litigation Seminar at Martin’s Crosswinds in Greenbelt, Maryland on Tuesday, May 4, 2010 from 11:00 a.m. through 5:30 p.m. If you have not yet received an invitation to this event, please contact Cindy Cavanaugh, or any of the attorneys at DeCaro, Doran to arrange to attend. The program, which includes lunch and cocktail reception, is free of charge.
This year our guest speaker will be Richard B. Loucks, Ph.D., P.E. Dr. Loucks is the principal engineer and senior technical consultant of the Loucks Group in Leesburg, Virginia. He will speak on the benefits of forensic engineering in the defense of personal injury cases and will also address issues specifically related to the Toyota recall.
As always, our attorneys will address topics of interest applicable to defense litigation.
James Liskow will be addressing the ins and outs of litigating cases against pro se plaintiffs. In particular, he will address the difficulties presented in litigation when the claimant is unrepresented.
In the face of the boom of social engineering networks, Erik Nyce and Jennifer Cook will speak on methods to utilize internet based sites, such as Facebook and Twitter, to obtain impeachment information for cross-examination of plaintiffs.
Tom Doran will speak on two recent decisions from the highest courts in Maryland and the District of Columbia in the medical malpractice cases of Locksin v. Semsker and Convit v. Wilson. Both decisions addressed significant issues regarding the interpretation and application of releases in personal injury litigation.
Jeff DeCaro will address tort reform in the new millenium, with a focus on what, if any, impact recent legislation has had on the defense of personal injury claims.
Warren Stephens will revisit one of his favorite topics, defending against junk science. For a number of years, the appellate courts had been strengthening the ability of the defense to preclude experts offering opinions without a scientific basis and Warren has investigated, and will discuss, the current state of affairs in this very important defense area.
On the issue of investigation and discovery, Sam DeBlasis will offer a presentation on interpreting medical records. He will focus on a discussion of medical terms and conditions commonly outlined in the medical reports we receive in the pre-suit and discovery phase of litigation.
Finally, we can always rely on Chuck Gallagher to give his annual presentation on recent developments in insurance defense law in the Commonwealth of Virginia
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