Connecticut Law Tribune
Monday, May 14, 2012
Silent Witnesses, New Insights:
'Black Box' recorders in cars provide evidence in PI lawsuits
Bridgeport plaintiffs’ lawyer Bill Bloss said the precise data – such as speeds of vehicles involved in accidents – that an EDR can provide will leave an impression on jurors.
Hartford defense lawyer James Bergenn said it may take a while for ‘old school’ accident reconstruction specialists to become comfortable using event data recorder technology.
By THOMAS B. SCHEFFEY
It’s only about the size of a pack of cigarettes, but the “black box” or event data recorder (EDR) that is being built into more and more modern cars and trucks could become an information gold mine for personal injury lawyers.
Over the past two decades, hundreds of thousands of vehicles have rolled off the assembly lines with EDRs installed and fully functional, capable of printing out how fast the vehicle was traveling before the air bags were deployed, when and if the brakes were applied, and how far the gas pedal was depressed, second by second.
Still, you’ll find scarce mention of these devices among the dozens of car crash lawsuits summarized in the Connecticut Law Tribune’s sixth annual Personal Injury Yearbook, which is included with this edition of the newspaper. But just wait a few years —the U.S. Senate voted last month to mandate black boxes be built into all vehicles sold in America beginning in 2015.
In most Connecticut accidents, even those with serious injuries, the EDR data - even when available - is not retrieved says attorney William Bloss, of Bridgeport’s Koskoff, Koskoff & Bieder. But lately, he and other Connecticut personal injury lawyers have been working to make an EDR request part of the work-up of major personal injury cases.
Bloss’s experiences in one particular case offer some insights into how big a factor EDR evidence might be in the future.
‘Cloud Of Dust’
On Sept. 6, 2009, Alex Convertito, 25, was driving his eight-year-old Hyundai Elantra south on Route 8 in Trumbull, near Exit 11. Gaining on him was a black, spanking-new Nissan Infiniti, driven by Trumbull resident William Reppenhagen, 62. He was tailgating other drivers, then passing on the right and vanishing into the darkness ahead.
Patrick Scukas of West Haven, was also passed by the 2009 Infiniti, “Moments later,” he told police, “I observed a cloud of dust on the right side of the road and a rolled over vehicle on the right shoulder. I immediately pulled over to assist and observed a white male lying face down, partially in the right lane.”
The victim, Convertito, didn’t respond when Scukas asked if he was OK, and was soon rushed to a hospital with life-changing spinal and lung injuries.
Reppenhagen, who later admitted he had been drinking at a bar in nearby Seymour, failed a roadside sobriety test and was taken into custody. Bloss, who is representing Convertito in his civil claims, suggested that Assistant State’s Attorney Tatiana Messina obtain a warrant to download the vehicle’s event data recorder. She had to deal directly with the auto manufacturer, Nissan of North America, and the process took months.
“It took a while for me to get in touch with someone,” Messina said. “They weren’t responding to our subpoenas, and we were told beforehand that it’s very difficult to get these results.” Messina said she made several phone calls to Nissan’s corporate counsel. “I was stern in my request, and explained, `You’re under subpoena,’” Messina said. “It took some pushing from our end to get these results.”
According to the police report, Nissan sent a dealer technical support specialist, accompanied by a state trooper, to download the data at the Bridgeport garage storing the Infiniti. The stored data provided vehicle speeds for several seconds before and after air bag deployment. Seven seconds before deployment, the vehicle was traveling 131 mph, and four seconds before deployment, it was traveling 136 mph.
Bloss said that kind of information is likely to make an impression on jurors. His civil trial stemming from this incident is still pending. “How many jurors have ever driven that fast, even once in their life?” he asked.
It’s worth noting that three witnesses who reported seeing Reppenhagen’s car that night had estimated speeds significantly lower than the EDR results. Initially, Reppenhagen had not even been charged with speeding. But the “black box” data was compelling. It even showed how fast the engine was turning — 6,031 rpm four seconds before the airbag deployed.
“It was pretty fast. It’s a miracle [Convertito] survived the crash, from my point of view,” said Messina, the prosecutor. “He’s a paraplegic now - it was terrible.”
As she saw it, said Messina, the black box data “was an important factor in the defendant deciding whether to take this to trial or not. It didn’t look good.”
Reppenhagen was represented by Bridgeport lawyer Fred Paoletti, who called the EDR data “a factor in the case, but not really a major one.” He said the precise speed of his client’s vehicle wasn’t all that important. “Even if he was just going 70, it would be speeding,” he said.
Paoletti said several factors could complicate the use of EDR evidence in the courtroom. First, he said, judges have to be convinced that the evidence is sound and admissible. Second, he said, auto manufacturers might resist disclosure of information about event data recorder technology, calling it proprietary. Third, he said, it may not be easy to get expert testimony to prove the technology is reliable.
In this case, a criminal trial was avoided. On Sept. 3, 2010, Reppenhagen pleaded nolo contendere to charges of second-degree assault, and was sentenced to five years imprisonment, suspended after three years, followed by three years of probation.
Hartford lawyer James Bergenn, of Shipman & Goodwin, practices a combination of criminal defense and personal injury matters, and says he blends standard accident reconstruction techniques with “black box” discovery.
Traditional accident reconstruction is based more on physics than anything - something known as “conservation of linear momentum analysis” - and Bergenn’s “old school” experts are not always quick to embrace the EDR technology.
“I’ve had experts tell me, `Oh, you can’t get at that black box.’ But they’re going to become increasingly available, and they’re going to resolve cases,” said Bergenn.
For example, he has a case in which two drivers collided head-on while driving on Route 85 in Sharon last year, and neither driver has any memory of the event. The standard accident reconstruction analysis left room for disagreement, because police were not able to conclusively establish a point of impact for the vehicles.
“We have a pretty good idea, but there’s a potential argument. So in this case the experts for both sides, together, are going down and draining the black box,” said Bergenn. This will provide a new set of clues to determine which driver was at fault.
“That data also tells you, interestingly, what happens post-impact,” Bergenn said. “It’s like billiards. After the impact, where do the balls go?”
Bloss said that under new law, in 2013, “black box” data is set to become more widely accessible to accident reconstruction experts using off-the-shelf software. “Currently, you have to go through the manufacturer, and manufacturers of Japanese cars are not as helpful in making the data available,” he said.
Bergenn said there could be some other growing pains associated with using EDR technology in lawsuits. For now, he said, few people know how to extract the data. In a case he’s handling in Maine, Bloss said a mechanic was directed to download the EDR, but instead tapped the engine control module information, which was of no forensic value.
In 2007, the Connecticut legislature passed a bill prohibiting anyone other than a vehicle’s owner to retrieve, use or transmit data from an event data recorder. There is an exception for police operating with a valid warrant, “or a legally proper discovery request or order in a civil action.”
The act, which appears at Connecticut General Statutes Sec. 14-164aa, prohibits the destruction of information in an event data recorder after an incident that has caused serious bodily injury, before police have had a reasonable time to obtain a warrant.
The statute allows data to be retrieved by a subscription service under an agreement that provides for the information to be transmitted and stored. Bloss said that at least one Connecticut insurance company offers discounted rates for customers who allow monitoring of their driving habits. “In Europe, I understand this is fairly common,” he said.