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special to the national law journal A data-recording device that few attorneys know is now standard equipment on many commercial vehicles provided key evidence used to win a $10 million pretrial settlement for a police officer badly injured in a traffic collision. Accident investigators at the scene retrieved the data recorder, said Tim Tomasik, who, along with Robert Clifford of Clifford Law Offices of Chicago, represented the plaintiff. Although the firm has expertise with “black box” data recorders from its specialty in aviation litigation, no one in the firm knew prior to this case that such devices have become standard equipment on many commercial vehicles and luxury cars in recent years, Tomasik said. “I think we are going to see these devices as an increasingly common factor in litigation,” Tomasik said. “They are already in late-model commercial vehicles of all types. Determining if the device is in a vehicle ought to be a standard interrogatory.” The October 2000 collision in Arlington Heights, Ill., a suburban community near Chicago, involved a police car driven by Officer Charles Tiedje, 40, and a 1999 Cadillac hearse driven by Aleksandr Babayev, an employee of a prominent local funeral home. Coincidentally, at the time of the accident local police and fire personnel were conducting a disaster drill nearby. Rescuers flocked to the accident scene, cut Tiedje from the wreckage and airlifted him to a trauma center, where he remained in a coma for a month. Tiedje, a one-time marathon runner, suffered a fractured femur, pelvis and hips; injuries to his head and internal organs; and various infections. Since the accident he has had 19 operations, extensive physical therapy and faces at least one more surgery, Tomasik said. Meet the ‘SDM’ The data-recording device, known as an SDM for “sensing and diagnostic module,” makes the calculations determining when an airbag needs to be deployed. Auto manufacturers have added software in many late-model cars and most commercial vehicles that records acceleration and deceleration in the final few seconds before airbag deployment, Tomasik said. Babayev, the driver of the hearse, suffers a documented but very mild type of diabetes that he claimed caused him to “black out” prior to the collision, Tomasik said. Eyewitnesses said Babayev appeared conscious and in control of the hearse, and the data recorder bolstered that testimony conclusively, Tomasik said. The retrieved data proved that within two seconds of impact the hearse was traveling at 63 mph, despite the posted speed limit of 45 mph, with the throttle 74% open. Abrupt braking slowed the car to 53 mph at the moment of impact. “Witnesses heard the engine revving as he approached the intersection, obviously to beat the red light, but the defendant driver claimed he was having a diabetic seizure of some sort,” Tomasik said. “The data recorder established his speed, that he quickly braked and turned at the last second to the left, which was consistent with what the witnesses saw. When hard scientific fact corroborates eyewitness testimony, it just cements things.” Four months after the accident, Babayev was fined $100 after pleading guilty to disobeying a red light. Lyndon Molzahn of Menges Molzahn of Chicago represented the funeral home. “My client only wants us to confirm that we have accepted the settlement,” he said. The retrieved data were probably what clinched the settlement, prior to trial, Tomasik said. “This is more reliable than an accident reconstruction, where you are probably going to have to make certain assumptions on distances and speeds, or eyewitness testimony,” Tomasik said. “There will always be variances with that sort of evidence but those variances are much less problematic when the inconsistencies are resolved by scientific data.” Tiedje v. Weinstein Brothers Inc., No. 00 L 12335 (Cook Co., Ill., Cir. Ct.). Page’s e-mail address is

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