iPod maker Apple sued for user's hearing damage

[Geoffcin]

John Patterson of Louisiana filed a federal lawsuit against Apple in the Silicon Valley city of San Jose on behalf of all iPod users and demanded a civil trial, according to court documents online Thursday.

IPods have a maximum possible volume of 115 decibels, and listening at that level for just 28 seconds daily can cause hearing damage, the lawsuit charged. The noise from a typical chain saw is reported to register 110 decibels and a jack hammer about 120 decibels.

Apple iPods are "inherently defective in design" and do not bear adequate warnings about possible hearing damage, the suit charged. IPod packaging bears a warning about potential hearing loss if music is listened to at high volume. However, the "ear bud" earphones sold with the iPods drill don't properly disperse the sound, according to the suit. The Cupertino, California company has declined to comment, citing a policy of not discussing pending litigation. Apple was forced to pull iPods from stores in France and upgrade them with software limiting sound output to 100 decibels, something it has not done in the United States, the lawsuit contended.

[markw]

Particilarly when they think they can make megabucks from a huge company* by convincing a gullible jury that we're too stupid for our own good and it's everyone else's responsibility to protect us from oursleves.

This sentence from the article cracks me up.

"Patterson does not know if the device has damaged his hearing, said his attorney, Steve W. Berman, of Seattle. But that's beside the point of the lawsuit, which takes issue with the potential the iPod has to cause irreparable hearing loss, Berman said."

So, I guess we can sue auto makers because we might drive their product reckelessly and hurt ourselves? ..or how about pencil makers because we might sharpen them and stick them in our eyes or ears? ...and the list goes on...

As I've always said, never confuse the law with justice.

*Of course, those that might "benefit" from the class action suit may only see a buck or two while the lawyer may make hundreds of millions.

FWIW, here's the complete article. I thought that one had to show damages, no?

http://www.comcast.net/news/technology/index.jsp?cat=TECHNOLOGY&fn=/2006/02/01/317326.html&cvqh=itn&ts=2006.02.02_18.20

[ericl]

A sleazy lawsuit, the whole "potential" angle, but they have a very good point. More and more people are plugged into these things for more and more hours everyday, and people have a tendency to crank them. It's a real problem that most people are oblivious to. I have four pairs of headphones, but I don't listen at high levels, and for no more than a couple hours per day, with breaks. When my generation is old, our ears are going to be trashed.

[Florian]

Considering all the junk music and lifestyle systems out there, loosing your hearing might not be all that bad :p

Seriously tough, this is normal in the US sadly. Be carefull the Coffee might be HOT or dont use the cruise control and make a coffee in the back LOL

[jocko_nc]

I'd like to fix that jack@ss such that he never has to worry about losing his hearing... His lawyer should get even worse.

jocko

[jocko_nc]

On a more serious note...

Read how the claim here is that the product was "defective". That means the claims are being made on grounds of implied warranty, that the consumer assumes using the product is not dangerous. Do you suppose if the guy purchased his IPod from an unauthorized retailer that Apple could deny warranty? Ha. This has come up before: There is no way for a manufacturer to limit warranty obligations law. They have to stand behind products they sell.

jocko

[markw]

A sleazy lawsuit, the whole "potential" angle, but they have a very good point. More and more people are plugged into these things for more and more hours everyday, and people have a tendency to crank them. It's a real problem that most people are oblivious to. I have four pairs of headphones, but I don't listen at high levels, and for no more than a couple hours per day, with breaks. When my generation is old, our ears are going to be trashed.while I agree with you on a pragmatic level, the other side will say it's their right to play their personal property as loud as they want. To limit their "free choice" in this manner is stepping on their rights. Wiill this be expanded to include maximum levels at which we can play our home stereos?

Look at the uproar about motorcyclists being forced to wear helmets in certain states. this is a law that is obviously designed to save lives and yet people still fight it. Ask Gary Busey

If we had clever enough lawyers and they win this suit, I can see where we could extrapolate this and wild up with speed governers on cars since driving at too high a speed can lead to accidents.

Again, we can't legislate common sense. Sometimes we have to let peple suffer the consequences of their own stupid actions.

[topspeed]

Sometimes we have to let peple suffer the consequences of their own stupid actions.
But if we did this, how would lawyers be able to make the stroke on their new Conti GT's?!? Another frivolous lawsuit. Another day in America. They won't win, but they will force a settlement in the low millions. Watch.

In the immortal words of Living Color:

This is not my America!

[ericl]

Seriously tough, this is normal in the US sadly. Be carefull the Coffee might be HOT or dont use the cruise control and make a coffee in the back LOL

Now I'm going to sound like I support these lawsuits, but have you ever had McDonald's coffee? Even after the lawsuit, it's still absurdly hot. I mean, WAY HOTTER than any coffee you get anywhere else. It's REALLY freaking scalding!

[SlumpBuster]

Okay, I'll throw one in on the otherside of the debate, and I might just be the only one to do so. Here's one for the trial lawyers:

1. The suit is not necessarily frivolous. Sony walkmans had defeateable volume limiters for years. People crow "personal choice!" Okay, how about giving me the choice to limit volume. I don't have that choice with the Ipod.

2. 115db is inherently unreasonable and exposure to such volumes is already regulated under OSHA. There is no legitimate design purpose to 115 db, other than to drown out outside noise. Earbuds with a better design could certainly acomplish the same without 115db.

3. Product liabilty generally falls into two categories: negligent design and negligent manufacture. With negligent design many jurisdiction employ a utility or cost benefit analysis. The question is whether a safer design would have made the product unreasonably expensive when balanced with the risk posed. At $400 a pop, I would expect good ear buds without the risk of permanant irreversable damage to the very organs the Ipod is designed to service.

4. Analogizing an Ipod to cars is not accurate. First cars already do have governors. Two, speed laws already regulate their use. Three, Ipods are not dangerous to others, only the user. Four, children do not drive cars, however, they do use Ipods. Five, you need a licencse and training to legally operate a car.

5. The infamous Hot Coffee case. At the time of the accident, McDonalds brewed their coffee 30 degrees hotter than anyone else in the industry. They claim it made it taste better. What it really did was make the difference between first and second degree burns and vs. third degree burns that burn all the way through. McDonalds VPs lied at trial claiming some 95% of McDonalds coffee was consumed not in the car, but at home or at the office. This was directly contradicted by their own research which revealed the overwhelming majority of drivethru consumers "crotched" the coffee and drank it in the car. Finally, the plaintiff suffered third degree burns to her genitals requiring multiple reconstructive surgeries. McDonalds refused the plaintiff's original demand of $35,000, which covered only her surgeries. The judge reduced the verdict from the original million to $500K. Oh yeah, and it was indroduced at trial that McDonalds had settled dozens of similar suits for similar amounts. So the lesson is if you got your dork burned off by McDonalds coffee, yet no one else's coffee would have resulted in the same injury, and McDonalds knew that but brewed it that hot anyway.... wouldn't you think your dork was worth $500k?

Just remember, you can thank the trial lawyers for the following:
Seatbelts, airbags, non-metal dashboards.
Flame retardant clothing.
No more thalydamide (sp?) babies and no such epidemic since the 1960s.
Food safety. No rotted meat in your food.
Deadman and kill switches on heavy machinery.
Safety at your workplace. You don't have to choose between your job and black lung.
Food labeling
Cigarettes going from recommended by doctors to not being recommended by doctors.
Truth in advertising; truth in lending.


Oh crap... my soap box just broke.

[jocko_nc]

I hear ya, man. I have this dangerous appliance built into my kitchen cabinets. Put a pot of water on it and turn it on, the water gets incredibly hot, it even boils. I measured it once at 100 C.

Left unchecked, our courts will be our undoing. Give me the scouldrels I can at least vote out of office or impeach. Judges have too much power to be unaccountable. They literally run the country, it was not intended that way. Look at the mess they have created over the past 25 years and tell me I am off base. The Legislative and Executive have been brilliant by comparison.

jocko

[SlumpBuster]

I hear ya, man. I have this dangerous appliance built into my kitchen cabinets. Put a pot of water on it and turn it on, the water gets incredibly hot, it even boils. I measured it once at 100 C.

Left unchecked, our courts will be our undoing. Give me the scouldrels I can at least vote out of office or impeach. Judges have too much power to be unaccountable. They literally run the country, it was not intended that way. Look at the mess they have created over the past 25 years and tell me I am off base. The Legislative and Executive have been brilliant by comparison.

jocko


Really? Name me one judicial scandal off the top of your head. Sure, you'll be able to tell me lots of decisions you disagree with, but no scandals. Executive and legislative: Watergate, Iran contra, Monica, Tom Delay, Abromoff (Sp?), WMD, and entire century of warrantless spying, ect ect.

Federal judges are appointed by the President and paid by congress... that is hardly running the country. On top of that judges can' t introduce legislation, congress and the President can. Judges can only hear cases and controversies brought to them.

The Ipod and coffee lawsuits are not threats to democracy.

[SlumpBuster]

You also miss the point. 100 degrees serves a useful purpose. The danger is minimal. 115 db serves no useful purpose, and the danger is inherent. Hot is hot, however, loud is not so loud after continued exposure.

[Geoffcin]

A sleazy lawsuit, the whole "potential" angle, but they have a very good point. More and more people are plugged into these things for more and more hours everyday, and people have a tendency to crank them. It's a real problem that most people are oblivious to. I have four pairs of headphones, but I don't listen at high levels, and for no more than a couple hours per day, with breaks. When my generation is old, our ears are going to be trashed.

But it's probably going to be true. Headphones are going to be a major impact in hearing loss for this generation. Ipods are top on the list. People crank these things to 110dB pretty often, and pretty long.

[markw]

But it's probably going to be true. Headphones are going to be a major impact in hearing loss for this generation. Ipods are top on the list. People crank these things to 110dB pretty often, and pretty long.It's the same principle. People know that smoking is bad for their health and yet the tobacco companies always manage to get new recruits in spite of the well publicized dangers.

Now headphones. Who doesn't know that constant exposure to loud noises can cause permanent damage? ...and yet, in spite of this knowledge, many continue blast it so loud that their eyes vibrate in time with the music.

...ya can lead a horse to water but ya can't make him drink.

[ericl]

......

Just remember, you can thank the trial lawyers for the following:
Seatbelts, airbags, non-metal dashboards.
Flame retardant clothing.
No more thalydamide (sp?) babies and no such epidemic since the 1960s.
Food safety. No rotted meat in your food.
Deadman and kill switches on heavy machinery.
Safety at your workplace. You don't have to choose between your job and black lung.
Food labeling
Cigarettes going from recommended by doctors to not being recommended by doctors.
Truth in advertising; truth in lending.


Oh crap... my soap box just broke.



Nice Post!

[Geoffcin]

It's the same principle. People know that smoking is bad for their health and yet the tobacco companies always manage to get new recruits in spite of the well publicized dangers.

It's actually far from the same principle. If you smoke, you risk lung cancer and death. However bad exposure to loud music can damage your hearing, you don't die from it. ALSO; Ipods are not an addictive drug, although the last time I was at my daughters college they did appear epidemic.



Now headphones. Who doesn't know that constant exposure to loud noises can cause permanent damage? ...and yet, in spite of this knowledge, many continue blast it so loud that their eyes vibrate in time with the music.


Actually a LOT of people don't know that loud music/noise can cause hearing damage so easily. Most of these people are the same ones that are using Ipods, and playing them loudly 24/7.

Pete Townshend of The Who, who were ledgendary for their loud concerts, has said that his severe hearing loss was caused by the use of headphones while mixing the albums, NOT the stage show.

[Geoffcin]

http://www.nme.com/news/who/21876

[jocko_nc]

It's amazing to me that after 10-or-so years the oft-mentioned "McDonalds Coffee" incident actually looks like good law...

Sorry, I have no sympathy for playing a device that has a volume knob too loud. The analogy would be the McDonalds chick dialing up the temperature of the coffee to scalding levels, then intentionally dumping the contents on herself every morning until some long-term damage is done. The product works as it was intended. It was used as intended. The user maintained complete control of the output at all times. End of case. Throw it out and make the hearing-impaired moron pay for everyone's lost time and efforts. Any product could fit the same scenario. A hammer. Pliers. A car. A razor. A stereo. Glue. Anything.

The same arguement is used for gun lawsuits: That the product is inherently "defective" and the manufacturer was "negligent" in some way. Thus, get the big checkbook out, someone just hit the lottery. Wrong. The irony is, someone only gets hurt if the product works exactly as intended. If the product was defective, there could be no damages. Go figure.

I totally agree that the headphone generation is liable to blow out their inner ears. It goes with the territory, everyone knows it. They will be b*tching at Medicare for free cochlear implants someday, I'm sure I'll have to pay for them.

Scandals? The huge proportion of our GDP spent on fueling our court systems is scandalous. An obscene sum is sucked out as overhead that contributes to very little. Unless, of course, your personal fortune is dependent upon those dollars.

Abramoff did not cost me a dime, and, frankly, didn't really hurt anyone. Nor did Delay or Dan Rostenkowski (sp) for that matter. Difference is, those guys operate in the open and are subject to politcal payback. They are toast. The judges handing out (or allowing to be handed out) hundred-million dollar paydays do so with anonymity and without accountability.

jocko

[CannondaleSuperVee]

"The suit, which Patterson wants certified as a class-action, seeks compensation for unspecified damages and upgrades that will make iPods safer."

I think the upgrade is already in place, its called a volume control...

[jamison]

Heres what i think they should do, just give the case to Judge Judy, I could just see her laughing at the plaintiffs and saying dont turn the friggin thing up so loud case closed

[markw]

Actually a LOT of people don't know that loud music/noise can cause hearing damage so easily. Most of these people are the same ones that are using Ipods, and playing them loudly 24/7.

Pete Townshend of The Who, who were ledgendary for their loud concerts, has said that his severe hearing loss was caused by the use of headphones while mixing the albums, NOT the stage show.Yep, the Pete Townsend thing is ancient history and I'm not disagreeing that loud headphone use can cause hearing damage. That's a known fact.

Don't they post warnings somewhere in the packing materials about prolonged earplug use? Of not, they should but that's as far as I would go.

Or, how about they print or emboss some sort of warnings on the skin of these devices not unlike they have the Surgeon General's warnings printed on cigarette cases? ...for all the good that does.

Sorry, stupid is as stupid does and it should not be everyone else's problem.

...and I have little sympathy for mororcycle users that refuse to use heargear either. Why should my insurance pay for their stupidity.

[Florian]

Now I'm going to sound like I support these lawsuits, but have you ever had McDonald's coffee? Even after the lawsuit, it's still absurdly hot. I mean, WAY HOTTER than any coffee you get anywhere else. It's REALLY freaking scalding!Well yes, but then again would you put it between your legs and drive off? I think not :)

[SlumpBuster]

The judges handing out (or allowing to be handed out) hundred-million dollar paydays do so with anonymity and without accountability.
jocko

While I disagree somewhat with arguement that judges don't have accountability, I do understand what you mean. Many state court judges are elected, so they are accountable to the electorate. Technically judges are self policing with judicial tenure commissions and chief judges holding much control over case assignments. While federal judges are life appointed, there are judges who don't get too many assignments because the chief judge recognizes they are past it.

But, your sentiment is precisely the reason why judges are so frightening to politicians and much of the public. But, their lack of accountability is precisely the check and balance they bring to the system. Judges can make unpopular decisions that politicians often don't want to make. Without a fully independant judiciary, you would see desegregation, equality of the sexes, freedom from sexual harassmnet in the workplace, and many other advances over the last half century. But sadly, there are still many people in this country don't see those as advances.

[jocko_nc]

This is the worst product liability case since Opti-Grab.

jocko

[thekid]

Maybe it is the middle child in me coming out but.........

To me the deciding factor should be if the product is used as intended/directed does/can it harm the consumer. The manufacturer can not possibly anticipate all of the possible misuse/abuse that the consumer can subject the product. In the case of the infamous McDonalds coffee, scalding hot coffee can not possibly be used in a reasonable way by the consumer without harming the consumer. However the manufacturer also bears some responsibilty in designing a product that does not "tempt" the consumer into the misuse/abuse of the product. In this case if I-pod could produce a product with similar perfromance without the capability of producing ear damaging decibel levels it has a responsibility to do so. If it can't then it is not unreasonable burden for them to print a warning label outlining the "normal" use of the product. This would protect them and the consumer because no one could take I-pod to court on the premise that playing music at 115 decibels is a reasonable use of the product.

As to some of the comments regarding motorcycle helmets, cigarette smoking etc and an individual's freedom... Your freedom to kill yourself in the manner of your choosing is only your right up to the point it affects my rights. Increased medicaid/medicare costs and insurance costs due to the care and treatment of people who smoke or injure themselves due to not wearing helmets etc affect me and therfore are fairgame to be addressed through our political/judicial processes.

Judicial activism or legislating from the bench is in the eye of the beholder. If you like the decision it is justice if you don't it is some judge tramping on the Constitution. The beauty of our governmental system is that there are checks and balances that provide remedies. Unfortunatley we have gotten lazy and prefer quick fixes rather than serious debate and the making of tough decisions. (Enter the lobbyists) Sound bites and opinion polls have become the coin of the realm. Use them properly and you get yourself elected.

Trial lawyers are not a pox on the land but they like many corporations evaluate where the next quick buck can be made and they try to find a way to make it. I am not neccessarily for tort reform but something needs to be in place that prevents the "threat" of going to court to be as economically advantageous to the lawyers (on both sides) as actually going to court where the merits or lack of merits of their case will be decided.

Sorry for the rant but hey in the end........... wherever you go-there you are.

[GMichael]

Now I'm going to sound like I support these lawsuits, but have you ever had McDonald's coffee? Even after the lawsuit, it's still absurdly hot. I mean, WAY HOTTER than any coffee you get anywhere else. It's REALLY freaking scalding!

Back in the old days, we made coffee by boiling water. 212F to bioil. McyD's coffee is in the 160 to 180F range. Sure, that's hot. But....

[MikeyBC]

What the hell happened to good ol' common sense? sounds like a bunch of money hungry SOB's

[thekid]

What the hell happened to good ol' common sense? sounds like a bunch of money hungry SOB's


Common sense is the knack of seeing things as they are, and doing things as they ought to be done.
Josh Billings (1818 - 1885) US writer

Ohhh if it were only possible for a world full of common sense......

[realsound]

Everybody knows that headphones or earbuds can't even come close to producing 115 db......oh yeah, unless you put'em in your ears. I know I've suffered hearing loss when I was alot younger with the blasting headphones from my portable cassette and you don't hear me cryin' about it!!! You put little speakers in your ears, you pay the price.

[thekid]

This is the worst product liability case since Opti-Grab.

jocko

BTW

Jocko
It was not until I re-read this post that I picked up on your "The Jerk" reference.
Kudos sir!

[dean_martin]

Here's a report from the legal trenches. The Monday after this thread was started, I started what turned out to be a grueling 2 week product liability/medical negligence case in which I represented a plaintiff with a fragment of a broken medical device in her back. We sued both the doctor who performed the procedure and the manufacturer of the medical device. The jury returned its verdicts today - in favor of the manufacturer against the plaintiff and in favor of the plaintiff against the doctor in the amount of $750,000.00. The jury had the option of returning a verdict against both defendants, but they took their job seriously as usual. I thought we proved a defect in the medical device as well as a deviation from the standard of medical care. The jury apparently decided that the device was only dangerous when in the wrong hands - makes sense to me.

[markw]

The jury apparently decided that the device was only dangerous when in the wrong hands - makes sense to me.This makes sense to me too. And, this fits many things, not just medical devices and ipods,