December 23rd, 2014

Will Google Cars Eviscerate the Personal Injury Bar?

Google’s prototype released on December 22, 2014.
Image credit, Google.

I hadn’t given much thought to Google’s self-drive cars until they unveiled a prototype yesterday. They call this vehicle “the first real build of our self-driving vehicle prototype.”

And it occurs to me that these drivable computers will result in both many lawsuits regarding them, and simultaneously eviscerate a significant portion of the personal injury bar.

First off, some of these cars will crash and people will get injured. And you can bet your last dollar that there will be lawsuits and some class actions regarding that, with many fingers pointed Google’s way.

The potential for error in such heavily software-dependent systems is extraordinary when combined with the limitless potential for collisions. There will be new meaning to the idea of computer crashes.

Google is working hard on that problem, having driven its test vehicles 700,000 miles already in the Bay Area to prevent this.

But.

The issue of lawsuits regarding the cars will, I think, be vastly overwhelmed by a huge reduction in collisions that result from the most common forms of human error. Each year about 30,000 people will die in the U.S. from car crashes, and about two million are injured, and that is after considering a significant drop in fatalities from safer cars and seat belts over the prior decades.

Aside from the role that alcohol plays in being a cause of collisions (not accidents), many are the result of a simple failure to stop in time that results in a rear-endng, or sideswipes from changing lanes without looking, or hitting the unseen pedestrian.

The last generation’s distractions of radio-tuning, cigarette lighting, and screaming back-seat kids has now been supplemented with email, texts, phone talk and GPS devices. Calling distracted driving an epidemic seems like a cliché, but if you’ve glanced into the windows of your fellow drivers, which my kids tend to do and point this out to me — “multi-tasking” drivers is another phrase for distracted and inattentive.

And what will those new-fangled cars do? They will see the other cars/pedestrians and slow down or stop despite the driver being lost in thought elsewhere. Or drunk. Or asleep.

With human error crashes reduced by software that automatically stops or slows the car, the number of broken bodies and cars will be reduced. The number of deaths will be reduced. Your insurance premiums will be (theoretically) reduced.

And that means the need for my services as a personal injury attorney will be reduced. (Likewise reduced will be the need for trauma health teams and emergency rooms, not to mention car body shops.)

Has anyone ever cheered being put out of business? I am. Because I drive, too.

I’ve been hit in the rear at least four times in the last few years. Every one no doubt the result of an inattentive driver. Thankfully, all of those were minor and they never resulted in an injury. But my lack of injury is simply my good luck.

This is not to say that there won’t be downsides to driving a Google car, not the least of which is the total abdication of the last vestiges of privacy. Google will know exactly where you are going and how long you have been there, and be more than happy to sell that information to anyone with the Benjamins to spend.

Or give that data to the government when it comes a’ callin’, as the government most surely will.

But from a raw safety standpoint, I am left with no other choice than to cheer the company on. Go ahead, Google, make my day by bringing on safety and putting us personal injury attorneys out of business.

OK, you won’t actually put me out of business because, by the time it becomes a mass market item, I will no doubt be retired.

But if I were fresh out of law school, this isn’t the field into which I would head.

Update 1/14/15: See The Google Car Is A Huge Threat To The Auto Industry (Business Insider)

September 27th, 2013

Deconstructing the Biomechanical Engineer

This was NOT the taxi involved in the collision, but cool old car, no?

Every so often a defendant will hire an expert that will look at pictures of the damage to a vehicle, and then pretend to tell the jury that the plaintiff couldn’t have been hurt based on damage to the vehicle.

You saw that word “pretend,” didn’t you?

When people talk about “junk science” it is usually defense-minded folks looking to blame plaintiffs’ lawyers for some crazy theory of injury. But I see the other side when it comes from less-than-candid defense experts (such as this).

The phrase junk science likely popped into the head (but not the written opinion) of Justice Arlene Bluth recently, as she sat in her New York County Supreme Court motor vehicle part (which, for you out-of-towners, is our top trial level court).

What Justice Bluth wrote in her recent decision in Neat v. Pfeffer is applicable to anyone in any part of the country, as she gives a road map to exposing the junk. So it is worth reading even if you hale from elsewhere.

The context of her decision is an attempt by Dr. Robert Fijan to testify about both the forces on a car in a collision and whether the plaintiff could have sustained her injuries from this collision. Justice Bluth ruled that while he could testify as to the former, he couldn’t testify to the latter, concluding that if he testified about the injuries it would be junk science (again, not her words, but mine).

Why junk? Read on…

Cynthia Neat was a back seat passenger in a taxi that was rear-ended. Dr. Fijan — who is a Ph.D. and not an M.D., which makes a pretty big difference in this context — wanted to testify about both the severity of the impact and the claim that the plaintiff could not have suffered a rotator cuff and SLAP tears as well as a torn meniscus in her knee, among other injuries. And he wanted to do this based solely on a single black and white photograph of the taxi she was in.

So Justice Bluth ordered a Frye hearing to test the scientific basis of such testimony to see if if was generally acceptable in the scientific community. And she then proceeded to deconstruct why D. Fijan, who is not an M.D., couldn’t testify about whether the injuries were caused by the collision:

First, there was no significant peer-reviewed literature validating his methods. As per Justice Bluth, noting the difference between theories of force in a lab, and those in the real world:

He testified that in order for a ligament to tear, it must be stretched to a certain point; in order for a bone to break, there must be a specific amount of force and bending. Understandably, experiments cannot be performed on live people – it would not be appropriate to ask volunteers to participate in crashes so their injuries can be measured. Additionally, it makes sense that a 75 year old woman with osteoporosis may suffer a broken bone with less force that it would take a 25 year old man’s bone to break, and a swimmer’s shoulder muscles may withstand more strain than those of a sewing machine operator.

Second, the literature he did use came from the National Highway Transportation Administration, and the standard crash dummy tests that they use. But which of us is actually a standard human being? Justice Bluth:

…while these studies have been based on biomechanics… the dummies are based upon the 50th percentile in height and weight, not a woman of plaintiffs height and weight. Besides, even if plaintiff happened to be the size of a NHTSA crash dummy, Dr. Fijan failed to show that NHSTA studies reliably predict what force it would take to tear a rotator cuff or cause a meniscus tear, for example; crash-test dummies do not have human bones or ligaments or tendons. Some of the other literature about which Dr. Fijan testified related to sports medicine. Even if studies showed that a pitcher’s rotator cuff could only withstand so many pounds of force/stretching before tearing, there was no proof that this plaintiffs rotator cuff was comparable to that of any athlete. Dr. Fijan cited to studies relied upon to build prosthetic devices and artificial joints; again, while a “normal” knee may take “x” pounds of pressure, who says this plaintiff had a normal knee? Certainly, Dr. Fijan, who is not a medical doctor, could not speak to the condition of plaintiffs body.

For the practitioner preparing to face down one of these experts, that is an awful lot of meat and potatoes, and represents a nice little road map into defeating what I think is junk science.

There are people that are badly injured in low impact collisions, and there are people that walk away from spectacular speedway crashes (Kyle Larson uninjured in this Daytona crash). We are all a bit different from each other, and crashes in labs don’t replicate the myriad ways that cars actually get hit, in conjunction with the different ways a body may be sitting, in conjunction with the different reactions that might occur to the body if there is even a split-second of warning, in conjunction with our own physiques.

My opinion? It’s junk science that doesn’t belong in the courtroom.

Kudos to Steven I. Fried who represents Ms. Neat.

March 11th, 2013

Accidents Turn Into Collisions

I thin I need a "Leaving Accident" sign.

I think I need a “Leaving Accident” sign.

Is the word “accident” falling away in favor of the word “collision?” It would seem so.

As per the New York Times yesterday, the New York Police Department will be investigating more car wrecks. In the process, there are two significant changes.

First, investigations will no longer be restricted to those incidents where someone has died, or is likely to die, but now will include cases where “there has been a critical injury or when a Police Department duty captain believes the extent of the injuries and/or unique circumstances of a collision warrant such action.” In other words, serious, yet non-fatal injuries. This is very good for those that were injured, though perhaps not so good if you were the one causing the injury.

But they they are also doing something else in the process, changing the name of the Accident Investigation Squad to the Collision Investigation Squad. This is a fairly significant change in language, for the word “accident” has built into it the assumption by many that an incident was unavoidable, like a deer leaping into the road at the last second. (See the last paragraph of the official letter: Accidents-Are-Now-Collisions)

But why would we use the same word for an unavoidable accident that we use for a very avoidable collision? We shouldn’t. And now that will change.

I had touched on this subject once before — and shame on me for not doing much more and permanently altering my own use of the word — when the BP oil spill occurred in the Gulf of Mexico. At that time,Tea Party darling Senator Rand Paul seemed ready to give a quick pass to BP, yelping “Sometimes accidents happen.”

According to Police Commissioner Raymond Kelly, “In the past, the term ‘accident’ has sometimes given the inaccurate impression or connotation that there is no fault or liability associated with a specific event.” The new nomenclature clears that up. Someone please send a note to Senator Paul.

Henceforth, we now have a solid citation for the argument that “accident” should be used for the unavoidable and “collision” for those that are avoidable. Thus, the dear that bolts into the path of your car is an accident. But the second car that plowed into you — because the driver was following too close — is a collision.

Let’s hope our judiciary also gets the memo.

January 15th, 2013

Another Day, Another Accident

Car accident, Nov 21, 2012

First off, let me say this: No one was hurt. Regular readers know that I don’t generally write about local car accidents — unless there is an appellate decision or something legally noteworthy about them. But this was an accident that my family was in.

It was the Wednesday before Thanksgiving, and I was in the front passenger seat with Mrs. NYPILB behind the wheel. We made a right at a light from one main road to another. And out of a parking area on our right came an SUV trying to cross the road. Presumably to get to the other side.

Except that we were passing in front of him; and he t-boned us. Right into the passenger side, with the brunt of the force on the back door where my son was sitting, engrossed in a book.

There are several things that might race through the brain at this point, of which these are three:

1. The Parent (Are my kids OK, and how do we make sure there is no further potential for accident or injury?)

2. The Lawyer (The other driver failed to yield the right of way)

3. The bureaucrat (Closely linked to the lawyer, this one seeks documentation to make sure that the “i”s are dotted and the “t”s crossed with respect to insurance companies.)

Now this is not the first time I’ve written about an accident that I was in. It happened five years ago when a car with no lights and no license plates stopped in the middle of the parkway at night. I was driving and I stopped in time. One of the cars behind me did not.

The view of the inside, with the door closed, where my son was sitting

And you know what? I’m no better prepared today for being in an accident than I was back then; because accidents are unexpected. If we expected them, well, we have a better chance of avoiding them.

Because they are unexpected, we often don’t really know, at the time of the impact, the answers to the questions that may one day flow if someone was really injured and an investigation or lawsuit ensued.

How fast were you going?

What lane where you in? (How many lanes were there?)

Where did you look in the seconds before the accident?

Where, exactly, were you?

While that last question might seem a bit silly, it really isn’t, most especially if it is a highway that you have driven hundreds of times. Your brain might well be on auto-pilot and while you know generally where you are, the exact location isn’t something that you were keyed in to. You might know, for example, that you needed exit 56, and that you were somewhere around exit 30, give or take. You don’t know exactly, because it isn’t particularly relevant.

The reality is that most of our “recollection” of an accident is our brain reconstructing what has happened as we spin our heads around and say WTF? And when we reconstruct things, we tend to fill in the blanks. This is a mental process that I like to refer to has “normal human behavior.” The psychs like to call it reconstructed memory, and will tell you that the brain abhors a vacuum so it provides the filler it believes to be logical.

But it’s odd when your own brain may be doing the the reconstructing, not someone else’s.

This fill-in-the-blanks view of an accident will generally lead to conflicting accounts of an event. People see things through the prism of their own experiences, both past and present and upon review of the event that just took place, and fill in the missing blanks. We may now see mileposts and exit markers, when before we were just driving merrily along knowing that we were roughly 15 minutes from our exit and keeping an eye on the car in front of us. We see intersections and people (aka witnesses) that we hadn’t really noticed or appreciated before. Because the accident, almost by definition, happened very fast and we had no time to react.

And, of course, the adrenal gland has decided that this would be a magnificent time to give the body a good old shot of hormone that sends the heart and mind racing.

After an accident, nothing is normal at all. But that moment when the mind and body are reeling is the moment the brain is imprinted with the “details” of recollection. Since those recollections are experienced through the prisms of our own histories, the lawyer might well “see” something different in an accident than the doctor, mechanic or cop.

All of this is something that the reader likely already knows, on an intellectual level. And yet, when one actually goes through the event, it doesn’t really matter. The god’s eye view of what happened — that fly on the wall view of things — may well be distorted by emotion, by experience and by reconstruction.

I wrote this post six weeks ago and have been sitting on it ever since, hoping I could come up with some kind of snappy conclusion or insight. But I can’t, other than to say that the most important thing is immediate safety. For us, sitting in the roadway after the accident near a busy intersection, that mean moving the car immediately out of danger into the parking area where the offending SUV came from.

I remember my father telling me, when I was learning to drive some 35 years ago, that if I got a flat tire on a bridge that I should not stop. Drive it off the bridge, and to hell with any additional damage to the car. It is, after all, just a car.

Safety first.

June 15th, 2012

Apple, Siri, Distracted Driving and the Future of the Automobile

A CNET mock-up of an Apple device integrated into a car (though I expect Apple will do a hell of a lot nicer job than this)

Two movements are rapidly coming together and will go head-to-head in the coming years:

First is the push to ban driving while on a cell phone — even if it’s a hands-free device. This is due to so many accidents occurring from distracted driving. There are 10 states that already ban it. The problem is not with drivers taking their eyes off the road, but a failure to concentrate. The National Highway Transportation Board wants to ban it in all 50 states. A sample story is here, that includes some data:

According to the National Highway Transportation Safety Administration, more than 3,000 persons died in 2010 because of distraction-related accidents, National Transportation Safety Board Chairman Deborah Hersman said last December in calling for a 50-state total ban on the use of cell phones and other portable electronic devices. “It’s time to stand up for safety by turning off electronic devices when driving.”

Now contrast this to the rapid movement of technology, with Apple at the forefront. Just days ago they announced that they were ditching Google maps in favor of their own, and that these would be incorporated into future cars, including BMW, General Motors, Toyota, Mercedes-Benz, Honda, and Audi.

What does that mean? It means that drivers will be able to use Apple’s Siri voice system to input destinations, and Siri will respond without the need to punch in data. From CNET on the announcement:

The new button should be a welcome change for drivers who are used to manually entering their destinations into a GPS, or laboring through complicated voice-activated menu trees to perform simple tasks, like changing the radio station or placing a phone call. By leveraging Siri’s natural language voice control platform, theoretically drivers will be able to keep their hands on the wheel and their eyes on the road to minimize distracted driving.

With Apple integrated into the car, it seems likely that such devices would also include the music that people have on their iPods/iPhones, as well as the ability to use those phones. One need not be a genius to foresee Apple integrating maps, music and phones into one device in the car, and allowing a simple wireless sync either with the handheld device that remains in your pocket or with its cloud based service. Texting and emailing could be voice-activated.

This means a dramatic rise in driver activity, for what would likely be an extremely popular device. So the future, it seems, is likely to see significant increases in drivers interacting with electronics, albeit it in a safer way than in the past. No one, for instance, will need to take their eyes off the road to punch buttons on radios.

Looking into my crystal ball I see more accidents, of the rear-end I-wasn’t-paying-attention type. As opposed to those that took their eyes off the road and swerved into another lane as they spun the radio dial.

How legislatures (and the National Transportation Safety Board) deal with this remains to be seen, but I would expect vigorous debate to continue that focuses on the issues of the role of government and consumer safety.