C-Net reminds us that electronic evidence can be critical even in mundane traffic cases. The article “Is Your Car Spying on You?” discusses “black boxes” installed in most Ford and GM cars since the year 2000, devices that record speed, whether ABS braking systems activate, and whether airbags deploy, among other data. According the C-Net the black box in New Jersey Governor John Corzine’s SUV showed that car was traveling 91 mph at the time of his accident (not 70 as witnesses testified), and that the governor was not wearing his seatbelt.

Does that mean the speed witnesses were inaccurate or lied? Not necessarily. Engineer Perry Zucker points out that black boxes were designed to retrieve diagnostic data for mechanics to fix cars; not to provide legal evidence. For various reasons, trying to use those data to determine liability may not always work.

Update: Thomas Kowalick, President of Click, Inc., author of a number of books on the use of vehicle black boxes, spoke to members of Kentucky General Assembly on current issues with black boxes. (Thanks to the Kentucky Law Blog for reporting this.)

Speaking to the Interim Joint Committee on Transportation, Kowalick noted that federal law mandates uniformity for Electronic Data Recorders (EDRs) by 2011, but the federal government has left it to states to decide how the data collected by EDRs may be used. “The challenge is to strike a balance between privacy concerns and the quest for the freedom to travel safely,” he told the committee.

It does not appear that any particular bills regarding EDRs are currently before the committee.

A lawsuit for medical negligence is often a “battle of the experts.” Expert witnesses testify as to the proper standard of care, and whether the doctor’s actions fell short of the standard. Medical experts are almost always required in order for a plaintiff to have their day in court. The only instance in which an expert would not be required is when the act is so obviously negligent, it speaks for itself (think: leaving a surgical sponge inside a patient).

Cynthia Nalley suffered from post-surgical infection, and an MRI later revealed microscopic slivers of metal in her skull. She argued that these two things were so obviously negligent, they spoke for themselves, and she didn’t need an expert to establish the standard of care in her case.

The trial court saw otherwise, and without the presence of an expert to establish the proper standard of care, the trial court dismissed her claim. The Kentucky Court of Appeals affirmed the dismissal (click here). This was the second time in four months that the Court had dealt with this issue – in August, it affirmed the dismissal of another plaintiff’s case for the same reason.

In any medical malpractice case, it’s better to be safe than sorry – always retain an expert.

The family of Charles Davis had their ox gored by the trial court when it dismissed their wrongful death suit. The trial court found that a release signed by Mr. Davis before jumping into the Ring of Fear was enforceable. The goal was for contestants to remain standing within their marked circle in the ring – despite the unrestrained freedom of a steer named Kenny – with the winner collecting the whopping sum of $50.00.

Each contestant signed a release against the defendants from “strict liability or ordinary negligence.” The release recited that rodeo animals are “dangerous and unpredictable.” However, the release said nothing of releasing the defendants from “gross negligence.” Kenny roughed up Mr. Davis, who died the next day of internal injuries.

Mr. Davis’ wife alleged that prior to Kenny’s release into the Ring of Fear, Kenny was prodded and his cage beaten repeatedly by his handlers. This, the Court of Appeals concluded, could at least be considered “gross negligence” – not covered as a subject in the release. Although the Kentucky case of Hargis v. Baize does permit enforcement of releases from even a party’s negligence, it imposes very strict requirements on them. In Mr. Davis’ case, the Court found that the release did not “contemplate a bull that has been infuriated by the Appellees prior to its release into the ring,” as opposed to a bull as its natural, mild-mannered self. Nor did it include a release from “gross negligence.” (Click here for the opinion.)

Two very practical lessons to be learned: 1) pass on the Ring of Fear; 2) consult Hargis v. Baize before drafting any similar releases.

According to Wikipedia, 20 million North Americans play fantasy sports. (Members and alumni of this firm have maintained a fantasy football league for more than a decade. My daughter calls my club my “imaginary football team.”)

Thanks to the Eighth Circuit Court of Appeals, those 20 million fantasies remain alive. In C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P. the Court upheld a summary judgment giving CBC the right to use the names and information about major league baseball players without their consent.

The opinion agreed with the lower court that the First Amendment trumped the players right of publicity. It noted that the information used in CBC’s games is readily available in the public domain, “and it would be a strange law that a person would not have a first amendment right to use information that is available to everyone.” It also rejected the players’ argument that this information was not speech protected by the First Amendment. Following the lead of a California court it found the “recitation and discussion of factual data concerning athletic performance. . . command a substantial public interest,” making them a form of expression deserving substantial constitutional protection.

The issue drew other interested parties as friends of the court, including groups representing the interests of professional football, basketball, golf, and hockey players, as well as NASCAR. It will be interesting to see if these groups pursue their claims beyond the Eighth Circuit, or whether they accept the loss of control over fantasy sports information.

For now fantasy football is safe, and bless the Eighth Circuit for keeping it that way. Now if the Court could only tell me how to win a game with two broken-winged quarterbacks and all my running backs on a bye week at the same time. . .