Trial Magazine

In a motor vehicle crash case, crash reconstruction is essential. A law enforcement agency’s investigation can provide basic information about the crash, but the data and conclusions in its report won’t give you everything you need. Much of the information you and your crash reconstruction expert will need—vehicle speed, braking, lateral movement, and similar data—may be obtained from the event data recorder (EDR) or “black box.”¹ Here is what you can learn from a black box, how you and your expert can use the information, and some of its limitations.

Get the Data

Obtain the crash report, and locate the vehicles involved. Send a Freedom of Information Act request to the law enforcement agency that investigated the crash as soon as possible after being retained.² Ask for

• all EDR data
• all crash reports related to the crash
• all reconstruction reports
• all supplements to these reports.

A crash or reconstruction report may have the underlying data used in investigating the crash. Your crash reconstruction expert needs this data, preferably before inspecting the crash scene.

Spoliation letters. Send letters to insurance companies, tow yards, vehicle owners, and repair shops, and include a request to preserve any information from vehicle EDRs.³ Also request that no attempts be made to access the EDR and that the vehicle not be restarted. If the recipient refuses these requests, seek a temporary restraining order to preserve the EDR evidence.

Be prepared to explain, both in your letters and in court filings, how EDR information is prone to inadvertent destruction. When accessing the EDR using the vehicle’s standard data connector—the same connector a mechanic might use to access your vehicle’s diagnostics—data can be destroyed in the download attempt or by restarting the vehicle.⁴ If the vehicle was badly damaged in the crash, even an expert may not be able to recover the data through the standard connector and will have to retrieve the EDR data using a method more prone to data loss or corruption.

Hire an expert. Retain your crash reconstruction expert as soon as possible. Ideally, the expert will inspect the crash scene shortly after the crash, especially because of the potential physical evidence, such as tire marks on the roadway or tire-tread fragments. Hiring this expert early is also helpful because he or she can assist you with collecting EDR data.

Downloading data. Crash reconstruction experts often have the tools and experience to download the data, but if that’s not the case, identify an experienced technician to complete the download. A data retrieval system such as the commonly used Bosch CDR can be used to download EDR information for most passenger vehicles.⁵

If you and your client do not have access to or control of the vehicle and you cannot access the EDR until you are in active litigation, you may want to contact opposing counsel to see if they’ll agree to have the download completed by a neutral party.

Even if you have control of the vehicle, consider waiting until litigation to have a neutral party complete the download. Some courts have issued strong spoliation sanctions in cases of EDR information destruction,⁶ and you don’t want to have to explain an accidental data loss. Another course of action can be providing defense counsel with your expert’s curriculum vitae and asking if they will allow the download with a defense representative and videographer present.

Available Data

What is contained in a vehicle’s EDR varies greatly depending on the vehicle year, the manufacturer, and whether it is a passenger or commercial vehicle. EDRs are not mandatory in either passenger or commercial motor vehicles, and in older vehicles, little useful information may be collected by EDRs.⁷

Passenger vehicles. For passenger vehicles with EDRs manufactured in 2012 or later, federal regulations require that the devices record 15 separate data elements.⁸ The most significant of these elements for crash cases are

• delta-V (change in velocity) and maximum delta-V
• vehicle speed
• seat belt use
• air bag deployment.⁹

Manufacturers who install EDRs in their vehicles must also make tools for downloading the information in EDRs commercially available.¹⁰ But beyond these data element requirements, manufacturers have latitude in what information their EDRs collect.

For example, some manufacturers’ EDRs include data on whether anti-lock braking or stability control systems engaged during the crash. And since EDR data requirements did not apply before 2012, the information available to your reconstruction expert may vary widely.

Commercial trucks.¹¹ Almost all commercial trucks have a computer-managed chassis,¹² and the computer systems on commercial trucks are much more advanced, to the point that they are only incidentally EDRs. These systems record event data and a range of other information, such as vehicle speed, trip time and distance, hard-braking events, and more that is useful in commercial trucking cases against both the driver and the trucking company.¹³ Because these systems continually record data and often transmit it in real time or at regular intervals to the trucking company, the data can be used to show a company’s notice—and disregard—of a particular driver’s habits or the driving habits generally present in its fleet.

Another increasingly common type of commercial truck data is data created by satellite- and cellular-based tracking and communications systems. Initially developed to aid fleet management, the same data used to facilitate trucking fleet logistics and to monitor driver performance—truck location, route, speed, hard acceleration or deceleration, and hours-of-service¹⁴—can also be useful in commercial truck cases. Information from a GPS-enabled truck can corroborate or disprove a driver’s story about the route and speeds driven.

More important, this data may show that the trucking company had knowledge of unsafe driving practices. If the company received this data but failed to admonish, retrain, or more closely monitor the driver, you have strong facts for a gross negligence claim based on the company’s subjective knowledge of the driver’s unsafe driving habits and its conscious choice not to act.

Using the Data

Information obtained from an EDR can improve your crash reconstruction expert’s ability to explain the events leading up to the crash. For example, in a tire failure case, it is common for the manufacturer to claim that the vehicle driver’s erratic steering caused the crash. The EDR data on steering wheel angle may contradict this defense.

In some jurisdictions, another common defense is that the victim wasn’t wearing a seat belt.¹⁵ This data may be indicated by the EDR, although you should confirm this through other evidence if possible.

EDR data also can provide valuable information for a biomechanical expert involved in your crash reconstruction. The data on seat belt use, vehicle speeds, and changes in acceleration will provide a fuller picture of the mechanism of your client’s injury.

Take special care when using EDR information from commercial trucks. Commercial truck EDRs are triggered by events such as hard braking or a mechanical fault code, rather than the triggering of a passenger vehicle’s air bag control module, so the data may not correlate to the crash event itself.¹⁶ Also review the defendant’s reconstruction expert report and cross-examine the expert to ensure he or she is looking at the correct data.

EDR information is susceptible to both mechanical and human error, so confirm the data corroborates the physical evidence of the crash. EDR output may show a demonstrably false speed or delta-V, which undermines the reliability of the remaining data.¹⁷ This can be caused by errors in how the vehicle sensors captured the data, how the EDR software interpreted the raw data from the sensors, how the EDR stored the data, or from limitations in the granularity of the sensors.

Whether the EDR under- or over-reports the critical variable in your case can depend on what the vehicle was doing at the time the data point is recorded (for example, actively braking) and the vehicle manufacturer.¹⁸ And be aware of the particular EDR’s limitations—for example, in an EDR with an upper limit for recordable speed, know that speed data may not reflect the vehicle’s exact speed at the time of the recording.

Understand the limitations of this data as you work up your case, prepare your expert, and cross-examine the defense expert. EDR data can be very useful to fill in gaps and help to resolve uncertainties or disagreements about the other evidence in the case.

For example, it is difficult to prove that fatigued driving caused a crash with driver testimony alone. However, the data from a commercial truck’s EDR—steering, GPS data, acceleration and deceleration, and other data points—may show telltale signs of fatigued driving such as drifting out of lanes or fluctuating speeds leading up to the crash. You can then use expert testimony from a medical or sleep expert to make the causal connection between the fatigue and the crash.

Admitting Black-Box Evidence

Generally, EDR evidence is admissible in jurisdictions following both the Daubert¹⁹ and the Frye²⁰ tests for expert evidence. Pennsylvania, a Frye jurisdiction, has approved the use of information obtained from an EDR, observing that EDR is an “accepted technology” that has “existed for almost 40 years, has been adopted by the major automobile manufacturers, and has been recognized as an acceptable tool used by accident reconstruction experts to determine a vehicle’s speed prior to an impact.”²¹ Other states following the Frye test likewise have upheld the use of EDR information.²² Several state courts following the Daubert test also have held that EDRs are generally accepted, testable, and accurate.²³

Despite the general acceptance of evidence obtained from EDRs, be prepared to meet challenges to your expert’s use of EDR information. The defense may argue that the data itself is not sufficiently reliable,²⁴ your expert did not have the necessary expertise to recover and interpret the data, or your expert misapplied the data in forming an opinion. This is why overcoming these defenses requires you to understand the methods of downloading the EDR information in your case, the technology underlying the specific vehicle’s EDR, and the limitations of that EDR.

EDRs, like all technology, are not perfect. Knowing their strengths and weaknesses will be valuable for your next motor vehicle or trucking case.

Patrick Luff is an attorney at Fears Nachawati Law Firm in Dallas and can be reached at pluff@fnlawfirm.com. The views expressed in this article are the author’s and do not constitute an endorsement of any product or service by Trial or AAJ.

Notes

1. Black boxes were available on some General Motors models as early as 1974. Nat’l Highway Traffic Safety Admin., Analysis of Event Data Recorder Data for Vehicle Safety Improvement, Apr. 2008, at 4, https://rosap.ntl.bts.gov/view/dot/6182/dot_6182_DS1.pdf.
2. For more information on Freedom of Information Act requests, see Adam J. Blank & Zachary J. Phillips, Make the Most of FOIA, Trial, March 2019, at 45; Austin Evers, Crafting Federal FOIA Requests, Trial, March 2019, at 48.
3. See Allegra Carpenter, Spoliation in the Digital Age, Trial, Jan. 2019, at 16; Marion Munley, Retrieving Electronic Crash Data, Trial, Feb. 2018, at 34.
4. See William Rosenbluth, Electronic Data Recorders (EDRs, Black Boxes), in Forensic Engineering 99, 100–06 (Max M. Houck ed., 2017).
5. For more information on the Bosch crash data retrieval (CDR) tool, see https://cdr.boschdiagnostics.com/cdr/. Information on which vehicles’ data can be downloaded with the Bosch CDR tool is available at https://tinyurl.com/28u3c2ef. Note that data for Hyundai, Kia, Subaru, Land Rover, and Tesla vehicles can be more difficult to download and, in the case of Land Rover and Tesla vehicles, to decode.
6. See, e.g., Saeed v. City of New York, 67 N.Y.S.3d 36, 38 (N.Y. App. Div. 2017); Kilburg v. Mohiuddin, 990 N.E.2d 292, 299–301 (Ill. App. Ct. 2013); Howard v. Alegria, 739 S.E.2d 95, 101–02 (Ga. Ct. App. 2013).
7. For example, in the 1990s, Ford EDRs recorded only basic data about air bag deployment, whereas General Motors EDRs recorded the cumulative delta-V of collision events. See Augustus R. Chidester, John Hinch, & Thomas R. Roston, Paper No. 247, Real World Experience with Event Data Recorders, Nat’l Highway Traffic Safety Admin., 3, https://tinyurl.com/mt7xau6m.
8. 49 C.F.R. §563.7.
9. Id.
10. 49 C.F.R. §563.12.
11. For a discussion of federal regulations concerning commercial truck EDRs, see Patrick Luff, Collision Avoidance Technology in Commercial Trucks, AIEG Voice 20 (Summer 2020).
12. Michael J. Leizerman, Litigating Truck Accident Cases §12:2 (2020).
13. See Dwayne G. Owen & Scott M. Duvall, On-Board Electronics, in Truck Accident Litigation 147–49 (Laura L. Ruhl & Mark K. Dooley-Owen, eds., 3d ed. 2012).
14. Hours-of-service logging is now generally done through electronic data recorders as required by 49 C.F.R. §§395.20–395.38.
15. Compare Nabors Well Servs., Ltd. v. Romero, 456 S.W.3d 553 (Tex. 2015) (allowing evidence of seat belt use for determining comparative fault), with Tenn. Code Ann. §55-9-604 (2008) (prohibiting evidence of seat belt use except in products liability cases).
16. See Owen & Duvall, supra note 13 at 151–52.
17. Nat’l Highway Traffic Safety Admin., supra note 1.
18. See, e.g., Augustus R. Chidester et al., Recording Automotive Crash Event Data, Int’l Symposium on Transp. Recorders, https://one.nhtsa.gov/cars/problems/studies/record/chidester.htm; see generally William Bortles et al., Soc’y of Auto. Eng’rs Tech. Paper 2016-01-1497, A Compendium of Passenger Vehicle Event Data Recorder Literature and Analysis of Validation Studies, 2016.
19. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (admissibility of expert testimony evaluated on consideration of five enumerated factors).
20. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (admissible expert testimony must be based on scientific principles that are sufficiently established and accepted).
21. Commonwealth v. Safka, 95 A.3d 304, 308 (Pa. Super. Ct. 2014), aff’d, 141 A.3d 1239 (Pa. 2016) (assessing EDR technology under a Frye test).
22. State v. Shabazz, 946 A.2d 626, 629 (N.J. Super. Ct. Law Div. 2005); see also Matos v. State, 899 So. 2d 403, 406 (Fla. Dist. Ct. App. 2005); Bachman v. Gen. Motors Corp., 776 N.E.2d 262, 282–83 (Ill. App. Ct. 2002).
23. See Commonwealth v. Zimmermann, 873 N.E.2d 1215, 1218–21 (Mass. App. Ct. 2007); State v. Clary, 2016 WL 4525041, at *6–7 (Ariz. Ct. App. Aug. 30, 2016).
24. Easter v. State, 115 A.3d 239, 247–48 (Md. Ct. Spec. App. 2015) (upholding a finding that EDR evidence was reliable).