LaBorde v. Shelter Mut. Ins. Co.

• Decision Date: 07 December 2011
• Docket Number: No. CW 11–00956.,CW 11–00956.
• Citation: 80 So.3d 1
• Parties: Emile David LaBORDE, II, et al. v. SHELTER MUTUAL INSURANCE CO., et al.
• Court: Court of Appeal of Louisiana — District of US

80 So.3d 1

Emile David LaBORDE, II, et al.

v.SHELTER MUTUAL INSURANCE CO., et al.

No. CW 11–00956.

Court of Appeal of Louisiana, Third Circuit.

Oct. 27, 2011.Rehearing Denied Dec. 7, 2011.

Blake R. David, Lafayette, LA, for Emile David LaBorde, II, Goldie Lee LaBorde, Leandra Marie LaBorde.

Thomas Reginald Hightower, Jr., Michael Scott Harper, Lafayette, LA. for Shelter Mutual Insurance Co., William T. Mills, David Matthew Mills.

[3 Cir. 1] WRIT GRANTED AND MADE PEREMPTORY.

At issue in this writ is the Motion In Limine filed by Defendants to exclude information retrieved from “the black box” or any expert reports based on said information. The Event Data Recorder, “the black box”, was installed by the vehicle manufacturer. It records data just prior to a vehicle crash and may include vehicle speed, engine speed, percentage of throttle and braking information. In this case the printed data was generated by software that is available from the manufacturer.

Permission was given by the driver to obtain “the black box”. Deputy Lantia of the Lafayette Parish Sheriff's Department kept custody and took the box to the Louisiana State Police to have them download the recorded data using a Ventronix Corp. Crash [3 Cir. 2] Data Retrieval System (CDR) which generated a report. “The black box” was lost thereafter. The trial judge does not mention gaps in the chain of custody.

Defendants' expert testified that there was no way to “reflash” the computer chip in the box and alter the resulting data file. Data report information as to the issues of reliability go to the weight, not the admissibility, of the data from the EDR, and each expert should be able to evaluate this evidence for the trier of fact.

In this case Plaintiffs' expert says the printout is sufficient and accurate. Defendants' expert says the printout is not enough and that, since the black box is no longer available, the printout should be excluded.

Many other states have found black box evidence to be reliable: Commonwealth v. Zimmermann, 70 Mass.App.Ct. 357, 873 N.E.2d 1215 (2007), Matos v. State of Florida, 899 So.2d 403 (Fla.Dist.Ct.App.2005), State of New Jersey v. Shabazz, 400 N.J.Super. 203, 946 A.2d 626 (Law Div.2005).

Evidence is usually accepted in relevant scientific fields which are not new or novel. Recording or downloading from the box is not novel and has been used in the automobile industry for over ten years. General acceptance of scientific principle or discovery form the basis for proposed expert testimony and does not require complete agreement over the accuracy of the test of infallibility. It encompasses an extraordinarily high level of proof based on prolonged controlled, consistent and valued experience.

For the foregoing reasons, we reverse the trial judge's granting of the Motion In Limine on use of the EDR “the black box” printout. We find that there is sufficient evidence in the printout from “the black box” EDR, or expert testimony based upon it, to create an issue to be answered when the evidence is offered at trial. State v. Schmidt, 97–249 (La.App. 3 Cir. 7/29/97), 699 So.2d 448, 452. Therefore, we remand this matter for further proceedings in accordance with this court's ruling herein.

DECUIR, J., dissents and assigns written reasons.

I find no abuse of discretion in the trial court's ruling granting the motion in...