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The Admissibility of EDR Evidence in Civil and Criminal Cases

Most vehicles are now equipped with event data recorders (“EDR’s”), or as they are commonly referred to, Black Boxes. These recorders contain information such as the speed before impact, if the brakes were applied, or if the seat belts were in use.

As yet, no Court has excluded data down loaded from a Sensing and Diagnostic Module (“SDM”) or EDR. There are two reasons for this. First, the party offering the data went to great pains to establish the reliability of the data. Also, in most of these cases, the data was supported by other evidence. In Bachman v. General Motors Corp., 332 Ill.App.3d 760 (4th District, 2002), a case involving a claimed inadvertent deployment of the air bag, the plaintiff moved, in limine, to exclude data downloaded from the subject vehicles SDM which indicated that the air bag had deployed properly. At the Fry hearing GM produced evidence from a senior project engineer from its supplier, Delphi, which was responsible for designing and developing SDMs, a systems engineer from Delphi who was involved in implementing the system in the specific vehicle the plaintiff was operating, the GM supervisor of diagnostic software activities who released the data to Vetronix so it could develop a crash data retrieval system, a GM staff development engineer who had worked with NHTSA on EDR technology, and another staff engineer who had co-authored a paper with a NHTSA employee entitled “Recording Automotive Crash Event Data. These employees dealt with every possible issue that could be raised to attack the admissibility of the data.

Bachman is a “must read” case for anyone addressing the admissibility of SDM data. This is true, whether it is in a product liability case, any other civil trial or a criminal case where the data contained within the SDM is important to either side. It contains the most extensive discussion of EDRs generally and SDMs particularly that one will find outside of an engineering text.

Another important lesson from Bachman is that, in any serious products liability case or any other case of serious injury or death, we need to ascertain and recover the applicable EDR data as soon as we can. In Bachman, the plaintiff sustained serious injuries when her air bag inadvertently deployed causing her to lose control of her vehicle. The vehicle, a Chevrolet Cavalier, had been the subject of a recall as a result of low speed deployments of the air bag. The plaintiff offered testimony of other people who had actually experienced low speed deployments in Cavaliers, but, still the jury found for GM. It appears that, despite credible evidence to the contrary, the jury went with the data.

It is not clear whether the plaintiff had and independent analysis the SDM data. It is possible they did and their own expert could not find fault with the data. In any case it is clear that the data that comes from the SDM or other form of SDM is going to have a significant impact on the outcome of any case in which the information contained in the data is at issue.

As if these cases were not expensive enough, it is clear that this is another battle that must be fought. The data from the vehicle’s EDR will have to be a factor considered, up front, when deciding whether or not to get involved in any case. It can become an issue. This is possibility in every automobile collision.

There have been several criminal cases where SDM data was introduced by the prosecution. People v. Christmann, 3 Misc.3d 309, 776 N.Y.S.2d 437 (2004) addresses both “Fry” (New York also does not follow Daubert) and a “search and seizure” issues raised by SDM data. As with the other cases, the SDM data did not stand on its own. It was used as a “tool” by the New York State Trooper who did the reconstruction work for the event at issue. While the court discussed the Trooper’s testimony regarding the data and its reliability, it relies, almost exclusively, on Bachman to decide the “Fry” issue.

The bottom line is, the data is going into evidence, assuming a proper foundation is laid. It is quite clear that courts are not going to require the “overkill” GM used in Bachman to get it in.

How Will the Data Be Used?

It is clear that, to date, no court has held that EDR or SDM data is “conclusive proof.” There are several cases where courts have reversed the granting of summary judgment based on SDM or similar data.

The earliest case appears to be Sipes v. General Motors Corporation, 947 W.W.2d 143 (Tx.App. 1997). Sipes was an airbag failure to deploy case. There were two arguments made by GM. First was that the impact was not the type collision where the air bag should deploy (side impact versus frontal) and that, based on the data down loaded from the “diagnostic energy reserve module” (DERM), the forces experienced by the vehicle were not sufficient to require deployment of the bag. The DERM appears to be simply an SDM with a different name. Texas Appellate Court made two important points:

Certainly this is strong evidence, if it is shown that the DERM itself is functioning properly, but it is not irrefutable evidence that conclusively establishes a fact as a matter of law in the face of other contradictory evidence. Our judicial system has never accepted computers or DERMs to decide ultimate issues in lieu of courts and juries. Id. 153.

In Nielsen v. American Honda Motor Co., 989 P.3d 264 (Hawai.App. 1999), also an airbag failure to deploy case, the Hawaii Appellate Court reversed summary judgment entered in Honda’s favor based on testimony that computer checks indicated the airbag was functioning properly. The Court cited the Sipes case for the proposition that merely because the tests did not show a defect in the airbag, that was not dispositive on the issue. While this case did not involve SDM data, the principles are the same.

In Harris v. General Motors Corporation, 201 F.3d 800 (6th CA 2000) GM took a different tact. It argued, successfully, before the trial court that the data in the DERM came under the “physical facts” rule. The “physical facts” rule states that testimony of a witness which is opposed to the laws of nature or is clearly in conflict with principles of science is of no probative value. Id. @ 803. Harris was an inadvertent deployment case. The plaintiff was in a relatively minor collision and she contended the when she reached her with her right hand to turn off the ignition, the airbag fired. GM filed the affidavits of a biomechanic to say that the plaintiff was in the process of making a left turn and that was how her right arm was injured and the affidavit of a GM engineer who said he determined by data from the DERM that the airbag function as designed. The District court fund that this testimony – the DERM data – established the undisputable fact the airbag deployed properly during the impact. While the 6th Circuit reversed the trial court, it did so because the engineer’s affidavit concluded “…merely that the DERM data suggests that the airbag deployed properly…” Id. @ 804. It could be suggested that a change in the way the affidavit was drafted would have changed the result.

Batiste v. General Motors Corporation, 802 So. 2d 686 (La.App. 2001) is a failure to deploy case where affirming summary judgment. In that case GM filed the affidavit a certified automobile mechanic who, based on the data downloaded stated he found no fault codes when he downloaded the data in the SDM. His affidavit further stated that if there were any malfunction of the system the SDM would have recorded it. An important distinction between the Batiste case and the Sipes and Nielsen cases is that Texas and Hawaii required “conclusive proof” for the granting of summary judgment. Louisiana, as do most jurisdictions, require a party opposing summary judgment to present their own experts in rebuttal, or the opinions expressed in the moving party’s affidavits will be considered conclusive. The plaintiffs in Batiste did not offer any rebuttal affidavits.

Indiana addressed this issue in Cansler v. Mills, 765 N.E.2d 698 (Ind.App. 2002). It is also is also a failure to deploy case. In this case the SDM issue came up in a different context – an argument as to whether or not the plaintiff had sufficient evidence to rebut the resumption, under Indiana law, that the vehicle was not defective because it complied with federal motor vehicle standards. In that case, the plaintiff was the driver of a 1994 Corvette that rear ended a vehicle that was knocked in front of him by a collision in another lane on the interstate. He sued the other drivers and GM. GM filed its motion for summary judgment based on the presumption. It included with its certificate that the vehicle had complied with FMVSS 208, a print out from the DERM showing the airbag functioned properly. The plaintiff’s only opposition was affidavit of a mechanic who examined this vehicle and opined that he had worked on a bunch of Corvettes over the years and that the damage to this vehicle was substantial and that the speed at impact was 45 to 50 mph. While I consider this a risky approach on the part of the plaintiff, the court of appeals allowed the testimony and found that it created an issue of fact. The Court was clearly more interested in what someone who had real world experience with crashed Corvettes had so say versus a computer print out.

Who Owns the Data and Who can Assess It?

There has been no case which has specifically addressed ownership of the data, but the clear consensus is that who ever owns the vehicle owns the SDM or EDR and the data in it. As I indicated earlier, the other “must read” on EDR is: “Privacy in the private sector: Use of the automotive industry’s ‘Event Data Recorder’ and Cable industry’s ‘Interactive Television’ in Collecting personal Data.” 29 Rutgers Computer & Tech. L.J. 163 ( 2003). It is an excellent, understandable discussion of the technology, what it is and how it can be used.

It addresses potential privacy concerns and the National Highway Traffic Safety Administration’s position on ownership of the data:

The owner of the subject vehicle owns the data from the EDR. In order to gain access to the data NHTSA must obtain a release for the data from the owner of the vehicle.

* * *

Any information derived from the crash investigation, including an EDR, that would lead to personal identifiable information may not be disclosed pursuant to the Privacy Act. Id. @ 172.

The Federal Highway Administration (FHWA), the Federal Motor carrier Safety Administration (FMCSA), the Department of Transportation (DOT) and the American Trucking Association (ATA) all take similar positions on ownership. Id.

Generally, do not allow anyone to download the data without having your own expert present. There are some automakers who have not licensed the software to download the data to anyone other themselves. This makes it impossible to get the data without the manufacturer’s participation. Once the data is recorded, the recorder is frequently wiped clean and the actual data can be lost like any other electronic evidence.

For additional information and an initial consultation, contact attorneys George Bellas (847.823.9030 Ext: 219 or george@bellas-wachowski.com) or Peter Wachowski (847.823.9030 Ext: 214 or peter@bellas-wachowski.com).