Can a Cellphone Expert and Cell Phone Evidence be Excluded in a Commercial Vehicle Accident Trial?

Posted in expert testimony on May 23, 2022

Holding your cell phone while driving is illegal in Georgia. In many of our cases, we find that drivers were holding and using their cell phones and that’s likely what caused the driver to lose focus on the road which resulted in the accident. Cell phone usage is important evidence. And it can go both ways–sometimes the driver who alleges she suffered injuries because of someone else’s negligence may have been using her phone which can really impact the value of her case.

What follows below is an example of what can happen when a victim is using her phone while driving.

The plaintiff, Lexie Handley, alleged that she suffered severe injuries in an automobile accident in September 2019. She claimed that a tractor-trailer belonging to a trucking company improperly stopped on a highway. This caused her car to collide with the commercial truck. She sought damages for medical and hospital bills, lost wages, pain and suffering, and permanent impairment.

In preparation for trial, the trucking company wanted to discover the plaintiff’s cell phone data to show she was using her phone and distracted when the accident occurred. The company claimed she rear-ended the tractor-trailer without hitting her brakes. The plaintiff did produce her damaged phone in discovery, but it was so badly damaged, it had to be reconstructed. After it was rebuilt, the trucking company was told that a PIN was required to access the phone. They asked the plaintiff’s counsel for the PIN in at least two emails, and he provided three possible PINs. However, none of the PINs worked, and the trucking company was unable to access the phone’s information.

One of the issues in the case was whether the trucking company’s cellphone expert and evidence of the plaintiff’s cellphone use could be excluded. The plaintiff argued that the cellphone expert first said at his deposition that the methods to reconstruct her phone were too expensive. She also argued that for the first time at the pretrial conference that the trucking company’s attorney indicated that the expert had performed post-deposition research and determined that it wasn’t possible to perform a bypass to unlock the phone based on the type of phone and its condition.

Also, the plaintiff argued that the trucking company’s late disclosure of this new information was unfair and violated the rules, and also that the information was false and misleading.

But the District Court for the Middle District of Georgia saw no reason to grant the plaintiff’s request to exclude the expert witness.

The cellphone expert testified at his deposition, in response to the plaintiff’s counsel’s questions, that there was a company that performs bypasses on cell phones pursuant to a court order or subpoena, but that he had never used that because of the cost. As such, the plaintiff was aware as of the deposition that:

  • There was a possible alternative to accessing her damaged phone without the PIN;
  • Access could only be obtained pursuant to court order or subpoena; and
  • Such access was expensive and was not pursued by the trucking company’s cellphone expert in this case.

The judge held that the plaintiff’s motion to exclude the trucking company’s cellphone expert was terribly late and warranted no relief because she took no actions sooner with regard to this testimony or to secure a rebuttal witness sooner.

The purpose of a deposition is to ask questions and learn new information, the judge explained.

Furthermore, the judge wasn’t persuaded that the plaintiff was somehow prejudiced because the cellphone expert looked into the bypass procedure after his deposition about the procedure and determined that it wasn’t possible based on the condition of the phone.

This new information was a minor addition to the expert’s prior testimony and was consistent with his deposition testimony and disclosures concluding that the phone was severely damaged and inaccessible, the judge said.

Moreover, the plaintiff made no effort to bring any alleged deficiencies, violations, or prejudice to the judge’s immediate attention so it could be remedied sufficiently in advance of trial. Instead, she waited until the district court judge entered a secondary order allowing the parties to brief any remaining pretrial issues.

The plaintiff would have known about the trucking company’s cellphone expert’s post-deposition efforts for more than five weeks by the time trial started. Under these circumstances, the judge was satisfied that the trucking company’s failure to promptly supplement its expert report was either substantially justified or harmless and that excluding this evidence wasn’t justified.

However, the judge said that because expert witnesses have a continuing duty to supplement their reports and deposition testimony, the trucking company was ordered to provide the plaintiff with a supplement from the cellphone expert.

As a result, the plaintiff’s motion to exclude the trucking company’s cellphone expert and the cell phone evidence was granted in part and denied in part. Handley v. Werner Enter., 2022 U.S. Dist. LEXIS 89849 (M. Ga. May 19, 2022).

Contact an experienced Atlanta personal injury lawyer whom Atlanta residents trust. Our lawyers have worked with victims all over the state. We have hired and deposed experts on all sorts of topics including cell phone use.

We offer FREE consultations to all prospective clients. Contact an Atlanta personal injury attorney at Tobin Injury Law 24 hours a day, 7 days a week by calling 404-JUSTICE (404-587-8423) or using our online contact form.