
Court: iPod hearing loss your fault, not Apple's - jacquesm
http://www.theregister.co.uk/2009/12/30/ipod_hearing_loss_appeal/
======
grellas
Liability exposure is much increased today for several reasons:

1\. Legal second-guessing: Here, Apple used a particular design for its ear
buds. The second-guessing comes in where courts say, "yes, we know that you
made these design decisions but, were you to use some alternative design, or
to include an additional warning, you could meet all the legitimate goals of
your product while at the same time reducing the number of potential injuries
to your customers at no appreciable added cost." The law then defines this
deficit (or lack of warning) as a product "defect," not because the product
can't be used in a safe way but because the second-guessers have proclaimed
that there is a safer way that might be used that still achieves the product's
goals at no significant additional cost. Experts are then trotted out to say,
"I am an authority on ear buds and the design used by Apple creates avoidable
risks and hence needless injuries to customers." The matter is then tossed to
a jury for a crap-shoot outcome. Welcome to the modern world of product
liability law.

2\. Class actions: The above approach to product-liability law is made far
more pernicious when the class-action vehicle givers the second-guessers the
opportunity to multiply their damages for every product sold, whether or not
it ever caused any injury to anyone specific. When combined with potentially
surprise sources of liability (e.g., ear buds that harm no one physically in
99.999% of cases suddenly becoming "defective" because a theoretical argument
might be made about how they might be safer), the class-action vehicle turns
law from a sleepy-time industry where individual practitioners wait around for
individual clients with real injuries to retain them to sue for compensation
into a mega-industry where creative lawyers can find nearly infinite ways of
creating potentially massive liability risks for manufacturers. Welcome to the
world of jackpot justice.

3\. Pleading rules: Modern pleading rules make this stew even more lethal. In
essence, the modern world is governed by what is called "notice pleading." The
idea is that all one normally has to do is state in broad terms what happened
to give rise to a legal claim and the case is set on a path to get to a jury.
In recent years, some of this excess has been cut back as these rules have
been modified to a degree. Nonetheless, modern judges tend to have very few
tools with which to hack away at frivolous claims and to dismiss them before
they can reach a jury. The result is that defendants facing even the most
bizarre-sounding of legal claims are forced to run up major legal bills
dealing with such claims through an expensive process of pretrial discovery
and trial. It is not unusual for a modest case involving middle-class parties
to go for one to two or more years in such cases and to cost each side six
figures in legal fees. In the case involving Apple and the ear buds, the legal
costs would easily have run $10M and up if the case were allowed to go forward
for a year or so.

4\. Absence of personal responsibility: The modern trend in law sees courts as
being protective of citizens in ways that used to be regarded as unnecessary -
hence, courts today routinely come up with new or expanded theories of
liability that they see as taking on the big companies for the benefit of the
larger society. One can debate this either way on the merits but it is a fact
of life and it does lead to ever-wider bases upon which defendants can be held
liable.

Put all the above together and it is no wonder that common sense goes out the
window. It is no longer an issue of "did this party use this product and
injure himself in the process and, if he did, did the manufacturer do
something negligent or did the product itself not get manufactured properly or
safely such as to cause an injury." Instead, it is: "has this party alleged
broad claims that show that all purchasers of this product might be subjected
to risks that could be avoided with simple warnings or with simple alternative
designs and, if so, how will a jury decide that question after hearing all the
experts hypothesize about the various alternatives and after hearing experts
speculate about how this manufacturer is causing hundreds of millions of
dollars of injuries to a broad class of people who might be using this
product."

Thus, the law moves from individual cases involving provable cause and effect
to group cases involving battles of experts and juries being given enormous
power to impose liabilities on product manufacturers.

In this context, it is quite unusual that this case got tossed at the first
stage and even more so for the appeals court to uphold the trial judge in that
action. Of course, with open forum shopping being the norm in today's world of
litigation, other cases can easily be brought in more receptive venues with
outcomes that are far from predictable. This unfortunately is how modern
litigation works.

~~~
micks56
Do you have any sort law background? Your knowledge is certainly above the
general citizen, but the application of the law is off.

1\. Safer alternative design is only recognized in a minority of US
jurisdictions. Warning defects is a separate cause of action from design
defects. The Apple warning w/r/t iPods is precisely written as it is because
of warning defect laws across the country. Also, w/r/t warning defects, there
is no duty to warn of open and obvious defects.

2\. w/r/t class actions, damages aren't multiplied by products sold, but
rather by injured plaintiffs. There are no surprise sources of liability. The
causes of action are mechanical and slow moving.

3\. Yes, you are correct w/r/t pleadings. But a pleading is only the first
step in filing a lawsuit. Once that is filed, the facts and evidence starts
getting passed around. Also see Fed R. Civ. P Rule 12(b)(6) (motion to
dismiss) and Rule 56 (summary judgement). The parties vigorously fight between
themselves to rid of the lawsuit versus keep it going. And both Defendants and
Plaintiffs drag on lawsuits for various tactical reasons.

4\. Look to the State Legislatures for the law updates, not the Courts.
California has an "Unfair Competition Law" that gives expanded causes of
actions, and was created by the Legislature, not the courts. Massachusetts has
a similar statute (MGL 93A Unfair and Deceptive Business Practices). It is the
legislatures moving to protect their citizens, not the Courts.

Yes, you have to prove cause and effect. Lawyers call it proximate cause and
it is an essential element in most (perhaps all) causes of action.

w/r/t forum shopping, I guess. There are specific rules on where a suit may be
filed. To move to another jurisdiction you need a plaintiff in that
jurisdiction. The Apple case was in California because the plaintiff and Apple
are in California.

I skipped over some other stuff but those are the big areas that caught my
eye.

And yes, my viewpoint is shaped by being a person close to becoming a lawyer.

~~~
grellas
Thanks for your clarifications on products law (I am not a tort lawyer).

On the other hand, I am an experienced litigator and the points I made about
litigation process, etc. are spoken from real-world experience going back many
years and including a federal clerkship and Big Law tenure where I had lots of
experience in seeing how class actions worked in practice. I have simplified
those points in order to avoid legal technicalities and have instead tried to
express them in terms of their practical effect (which, in the world of class-
action lawyering, has much more to do with legal shakedowns than it does with
formalities such as proximate cause or actual injuries suffered by individual
plaintiffs).

Would be happy to talk further offline if you like - just email me.

~~~
micks56
First, I am sufficiently embarrassed that I neglected to check your profile. I
slightly remembered your name, but could not remember why. Then I refreshed my
recollection by viewing your profile and remember your Startup Law 101 posts.

I tend to side with letting the courts do their job. Yes, legal shakedowns
certainly occur. I am more worried about smaller companies being affected than
large ones, though. But that worry comes from much less legal experience than
you.

Is it too idealistic to think that Rule 11 limits the scope and frequency of
legal shakedowns?

~~~
grellas
Too idealistic, in my judgment, to see Rule 11 as having that effect (for
others, this is a rule generally allowing federal courts to impose sanctions
for frivolous or bad faith conduct in litigation). That said, I am not hostile
to courts and would be the first to say that they serve us well on many fronts
- that is what saddens me all the more about the way litigation can be so ill-
used in our society as well.

~~~
jacquesm
Like any other tool litigation can be used or abused. It's unfortunate that a
lot of abuses have gone unpunished and that more people (and companies) are
taking these bad examples as 'the way to do it' because everybody else is
doing it too.

This is not a purely American thing, though I would definitely contend that
the United States has seen some of the worst excesses of this.

------
cmelbye
Thank god. It's the user's responsibility to know how loud they should be
listening to music, and if it's a child then the parents should use the Volume
Lock feature. This is like when people sued McDonalds because eating there 3
times a day, 7 times a week made them fat.

~~~
micks56
We may think that it is the user's responsibility to know, but that is not the
law in most jurisdictions.

Apple didn't win this case because the Court thought personal responsibility
should triumph. Apple won the case because the plaintiffs didn't plead
sufficient facts, and therefore the Court dismissed the case.

A better plaintiff, that is one that has actually sustained an injury, could
prevail against Apple. The plaintiffs in the case do not allege any personal
harm. Secondly, a court in a different state may rule differently. This case
applied California law only.

~~~
cmelbye
Yeah, my original post was just my opinion.

edit: change accidental exclaimation point to period. Stupid iPhone keyboard.

------
jsz0
"They alleged that the iPod (1) comes with 'stock ear buds...designed to be
placed deep into the ear canal rather than over the ears"

Moral of the story: It's hard to win when your allegation is factually
incorrect.

------
NathanKP
To my way of thinking the ear buds which are placed within the ear canal are
actually better for preventing hearing loss. They allow you to focus just a
small amount of sound and still get that perfect musical sensation.

I can't believe that people are wasting their time and money trying to sue
Apple over the matter. That is like people suing a car manufacturer because
they played music too loud in their car and ruined their hearing. _I'm suing
GMC because they made a car that has sub woofers that can play music at
tremendous decibels and which has a gas tank which allows the car to run for a
long time._

When you compare the two it is clear that both are ridiculous.

~~~
makecheck
I like ear buds, as long as there isn't too much ambient noise (e.g. if you're
on an airplane, it's impossible to hear anything with ear buds, and you need
over-ear headphones).

Also, you probably mean decibels, not decimals. :)

~~~
NathanKP
_Also, you probably mean decibels, not decimals. :)_

Thanks for catching my typo. ;)

------
Legion
So it's not just about the iPod's output, but the inclusion of "stock ear
buds...designed to be placed deep into the ear canal rather than over the
ears, which increases the danger of hearing damage".

I always thought it should be a crime that iPods don't come with a pair
Sennheiser PX100s. Though not because of any "danger of hearing damage"...

------
karzeem
By contrast, in France, iPods are limited by law to a maximum of 100 dB.
(Sorry, I'm on a laissez-faire kick after just having read Capitalism and
Freedom.)

~~~
jacquesm
And even that is still pretty dangerous:

<http://www.dangerousdecibels.org/hearingloss.cfm>

What bugs me is that if you want to blow up your ears, go right ahead, after
all you know your 'comfort zone' better than I do, and what can drive
headphones can drive speakers (which require much higher power levels to
function) just the same.

Headphones have been plugged in to amps since the stone age of radio
technology and nobody was ever stupid enough to sue the manufacturer of a
device because they didn't know how to operate a volume control.

~~~
lutorm
Oh but you don't place the speakers "deep into your ear canal"... ;-)

~~~
jacquesm
Ever been to a pop concert ?

