This article originally appeared in Goldberg Segalla’s On Appeal. Read the issue here.
In the end, after all of the he-said-she-said and the country-club records showing the allegedly injured plaintiff playing golf and the video of him scampering about a soccer field, it was a small, silver box from beneath the dashboard of a Ford Escape that likely clinched the case.
The box, a computer called a restraints-control module, is an automotive nerve center about the size of a man’s hand. It records starts and stops, impacts and restraint deployments, acceleration, braking, and speed. It holds a record of what was happening around the time of an accident. It’s on virtually all newer cars. And it was in the back of attorney Brian W. Skalsky’s mind as he started defending a driver and insurer facing a potentially big liability claim over a relatively minor accident on Interstate 5 near San Diego.
The plaintiff, a former professional soccer player, claimed that because Brian’s client had rear-ended him, he had back injuries that had required injections and a radio frequency ablation. At trial, he asked for just under $1 million. Brian, who recently joined Goldberg Segalla and the firm’s General Liability practice, has a lot of experience litigating such cases and knew just what to do. He retained an accident-reconstruction expert to download data from that restraints-control module.
Using special equipment carried in a hard-shell tote the size of a suitcase, the reconstruction expert found data for almost 30 seconds leading up to the accident: The plain-tiff ’s car was going 11 mph at the time of the accident. Brian’s client, as she rear-ended him, was going 23. The experts in the case used the weights of the vehicles and some math to determine a comparative speed for the accident: 7 mph—barely twice as fast as a man walking.
The data from the restraints-control module was, Brian recalls, the best and arguably only piece of purely subjective evidence he had for defending the driver and insurer, but, in concert with the other evidence he’d unearthed, it was enough. Though the jury voted 9-3 that Brian’s client was somewhat negligent in the accident, it was unanimous in finding that the defendant was not a substantial factor in causing injury to the plaintiff.