PRIME RUS CONVOCATION APRIL 2018 - Litigating in the 21 st Century: - - PowerPoint PPT Presentation

Presented by: David Fink, Esq and Andrew Isakoff, Esq.

PRIME RUS CONVOCATION APRIL 2018 - Litigating in the 21st Century:

Advancements in Technology –The evolution

• f the vehicles we operate and advancements

in how accident scenes are investigated

• Vehicle Advancements
• Equipment Advancements (Telematics & Dash Cams)
• Accident Reconstruction Advancements
• Questions

Presentation Topics Advancements in Technology – The evolution

• f the vehicles we operate and advancements

in how accident scenes are investigated

The National Highway Traffic Safety Administration (NHTSA)

The NHTSA was established by the Highway Safety Act of 1970 as an agency within the U.S. Department of Transportation to carry out highway safety programs. Mission: Save lives, prevent injuries, and reduce economic costs due to road traffic crashes through education, research, safety standards, and enforcement activity. The 2016-2020 NHTSA Strategic Plan outlines the innovative partnerships and strategies that NHTSA will use in addition to its core programs to achieve its mission, and further the nation down the road to eliminating traffic fatalities.

Vehicle Advancements

The National Highway Traffic Safety Administration (NHTSA)

Within the Strategic Plan the NHTSA focused on two key numbers:

• In 2015, an estimated 35,092 people lost their lives on US roadways (7.2-percent

increase over 2014).

• 94 percent of crashes are due to human choice or error.

Five Strategic Goals: 1. Safety 2. Proactive Vehicle Safety 3. Highly Automated Vehicles 4. Human Choices 5. Organizational Excellence

Vehicle Advancements

NHTSA - The Evolution of Automated Safety Technologies

Vehicle Advancements

Focus on Vehicle Safety and Construction

Overview of Vehicle Advancements

Vehicle Advancements

V2V Communication

Vehicle Advancements

NHTSA – The Road to Full Automation

Vehicle Advancements

NHTSA – The Six Levels of Automation

The Benefits of Dash Cams & Telematics

• Telematics technology has been available for more than two decades.
• Video technology has been available for more than a decade.

If a picture is worth a thousand words, what is a video worth?

Equipment Advancements

The Benefits of Dash Cams & Telematics

• Video recordings document the accident more accurately.

Therefore…

• In many instances, they are the best and most exculpatory evidence.
• They can help to reduce, and even deter frivolous/fraudulent claims.
• In instances of liability, they improve the accuracy and efficiency of

the claim evaluation process.

• Video footage can be an effective tool for training drivers, i.e., driving

habits, evasive maneuvers, and appropriate response/reaction to an event.

• When synced with telematics, video recordings will improve, and and

may even eliminate, the need for a full accident reconstruction.

The Benefits of Dash Cams & Telematics

In most cases, the use of Dash Cams, Telematics and other event recorders can lead to a reduction in:

• The cost and expense associated with claims handling;
• The cost and expense associated with litigation;
• A reduction in overall claims; and
• A reduction in insurance premiums.

The Benefits of Dash Cams & Telematics

The Bottom Line

• Video recordings document the accident more accurately.

Therefore…

• Video footage may document liability.
• Video footage may enhance exposure by:
• Documenting inattentiveness - fatigue, inattentiveness
• r distraction;
• Potentially inflaming a jury, i.e., graphic images;
• Documenting a failure to follow company policy; or
• Documenting a maintenance issue.

Potential Drawbacks

• Requires the implementation of additional polices and procedures.
• Requires more regulatory and compliance advice and more compliance

by the company:

• What is the industry standard – are the company’s policies and

procedures in line with this standard?

• Is the company consistently operating in compliance with its own

policies/procedures?

• Is the company consistently reviewing the footage of events for

disciplinary review/determinations?

• Is the company regularly monitoring performance of all drivers?

Potential Drawbacks

IF IT IS WORTH DOING, IT IS WORTH DOING RIGHT!

• Establish set protocols:
• What should be retained in ordinary course of business

and for how long?

• What should be retained when there is an event?
• Where and how is the data stored?
• Preservation/Litigation Hold Letters
• What is a reasonable opportunity to inspect, analyze or test?
• What is reasonable notice of intent to repair, replace or

destroy?

Retention Policies

• Use of dash cams, telematics, and other forensic technology- a shield and a sword
• Creates additional electronic data/records to be preserved

When does a claim for spoliation arise?

• The test:
• Obligation, duty to preserve
• Evidence destroyed or altered with a culpable state of mind
• Evidence was relevant and would have supported a claim or defense
• Typical sanctions
• Testimony barred
• Cross examination of company representative
• Adverse Inference jury instruction
• Dismissal
• Attorney Fees awarded
• Independent tort (depending on jurisdiction)

Spoliation

Accident Reconstruction

Immediate Evidence Collection

• Physical evidence at the scene

deteriorates quickly

• Vehicles are, repaired, sold or salvaged
• Knowing your position in hours or days -

not years later

Accident Reconstruction

Immediate Evidence Collection

• Tire Marks
• Fluid Spills
• Drag Marks
• Final Rest Positions
• Environmental Conditions
• Witness Statements

Accident Reconstruction

Scene Evidence

• Damage
• EDR’s
• Seatbelt Usage
• Occupant Contacts
• 3-D Scan for Preservation

Accident Reconstruction

Vehicle Inspections

• Was your driver speeding?
• Did your driver react

appropriately?

• Was it avoidable?
• Were the actions of the
• ther parties appropriate?

Immediate Evidence Collection

Know Your Clients Position

• Photographs
• Witness Statements
• Police Reports
• Measurements
• Drawings
• Testimony

Accident Reconstruction

Old School Techniques

Accident Reconstruction

Old School Techniques

• 3D Scans
• Vehicles and Scene
• Drones
• Downloads
• Not just EDRs anymore
• Animations
• Synergy with Biomechanical Experts
• 3D Film Images

Accident Reconstruction

New Techniques

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Accident Reconstruction

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Accident Reconstruction

Accident Reconstruction

Accident Reconstruction

Synergy with Biomechanical Experts

QUESTIONS?