41 Trial Lawyer • Fall 2022 was traveling northbound on Hwy. 30, in Multnomah County, toward Sauvie Island. The cyclist wanted to exit Hwy. 30 and take the St. Johns Bridge across the river toward St. Johns. To do so, he would need to move from the right shoulder to a middle of the road left turn lane. There was no dispute the cyclist left the right shoulder. However, all the witness accounts diverge from that point on. The cyclist recalled crossing safely into the turn lane, when a car careened around him trying to pass on his right before knocking him over. Other drivers recalled the cyclist exiting the bike lane, blocking one vehicle and causing it to slam on its brakes. The other drivers recalled that a second car was unable to stop in time and struck the cyclist, sending him careening toward the shoulder. As often happens in these cases, a client arrives with GPS data from his head unit, expecting the data to be dispositive. Here, the combined factors of the St. Johns Bridge obscuring reception, trees being in the area and the inherent inaccuracy of consumer GPS devices placed the client in many impossible locations that did not conform to any witness’s accounts. The data showed the cyclist veering off the road, barely making it into the turn lane, before a sharp turn sent him through a guardrail, down a ditch and into a gully. Instead of GPS data streamlining a claim, the client’s device only created one more potential issue to explain to a jury. We were glad to have the information, but also declined to handle the case, as we did not think we would be able to prevail with such confusing information available to show the client’s movement. Watches and Fitbits The next generation of data sharing technology is the movement to watches and wristbased trackers, such as Fitbits. The information they gather can be used the same as a phone or a head unit. The additional opportunity about wrist-based trackers is they are usually worn most of the day, if not all of the time (to also measure sleep quality). They can measure speed/rate, location and time of travel and only continue to improve their accuracy. We believe it is important to ask a potential cyclist client if they were wearing or using one during a crash (we have not used one in a car v. car crash yet, but we believe that is only a matter of time). Other measuring technology When meeting a new client, ask them what other ways they measure their rides or exercise. The additional information can show more about your client, if they rode a certain route every day or every week. Some people track their daily cycling commute, not just fitness rides. Beyond cycling, tracking apps are now used for daily steps, hiking, walking, swimming and most other exercise. Most apps default to a public setting, so the movement is viewable by anyone. This can be problematic in some cases. In 2017, Strava released a ‘heat map’ showing ALL the data movement points they had at their disposal. Nathan Ruser with the Institute of United Conflict Analysts was able to use that data to find ‘secret’ military bases around the world https:// www.theguardian.com/world/2018/ jan/28/fitness-tracking-app-gives-awaylocation-of-secret-us-army-bases. Presume your client’s data is publicly available and plan accordingly. Race results If you represent a person who is a regular competitor, expect their results to be public. Our office was able to show damages in a case where our client had been racing his bicycle two times per week and was struck while riding to a bicycle race. Consistent with his deposition he did not race for about six months, then slowly returned to racing and by the following summer had returned to his old pattern. We showed defense counsel his publicly available race results and even helped them decode what they meant, to support our damages position. Final thoughts The number of ways to track movement is increasing, making it imperative to ask any potential client not about specific apps, but if they use any apps or wearables, or anything that could show their movement in a crash. There’s a new app coming, and there is a new tracker coming. Caution on the word “training.” ORS 742.530(1)(b) excludes from PIP anyone participating in or PREPARING FOR a speed contest. While it has not been an issue YET, be careful calling a ride “training” because if the client is training for a race, it is possible (although we have never seen it happed) that some clever PIP carrier might try to deny PIP benefits. E-bikes have onboard computers, and we expect to have cases where the settings or mode of the E-bike will be at issue.Was it in “high power” or “low power” mode? Was the battery not being used?That case is coming, we just haven't seen it. While the options seem mind boggling, this is an opportunity to show objective facts, much like the EDC from a car can show acceleration from being rear-ended. The technology is teachable, and experts exist to help you and your clients use this data to help tell their stories to their full potential. Mark Ginsberg specializes in personal injury, with an emphasis on bicycle collisions, Transportation Connection Network (Uber/Lyft) cases and odd ball coverage issues. He is the owner of Berkshire Ginsberg, LLC, 1216 SE Belmont St., Portland, OR 97214. He can be reached at mark@ berkshireginsberglaw.com and 503-5423000. If you represent a person who is a regular competitor, expect their results to be public.
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