Speaking of bad lawsuits - Man Sues Apple Over Potential Hearing Loss

[BrianD]

http://news.yahoo.com/s/ap/20060202/...e_ipod_lawsuit

SAN FRANCISCO - A Louisiana man claims in a lawsuit that Apple's iPod music player can cause hearing loss in people who use it.

Apple has sold more than 42 million of the devices since they went on sale in 2001, including 14 million in the fourth quarter last year. The devices can produce sounds of more than 115 decibels, a volume that can damage the hearing of a person exposed to the sound for more than 28 seconds per day, according to the complaint.

The iPod players are "inherently defective in design and are not sufficiently adorned with adequate warnings regarding the likelihood of hearing loss," according to the complaint, filed Tuesday in U.S. District Court in San Jose, Calif., on behalf of John Kiel Patterson of Louisiana.

The suit, which Patterson wants certified as a class-action, seeks compensation for unspecified damages and upgrades that will make iPods safer. Patterson's suit said he bought an iPod last year, but does not specify whether he suffered hearing loss from the device.

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.

"He's bought a product which is not safe to use as currently sold on the market," Berman said. "He's paying for a product that's defective, and the law is pretty clear that if someone sold you a defective product they have a duty to repair it."

An Apple Computer Inc. spokeswoman, Kristin Huguet, declined to comment.

Although the iPod is more popular than other types of portable music players, its ability to cause noise-induced hearing isn't any higher, experts said.

"We have numerous products in the marketplace that have the potential to damage hearing," said Deanna Meinke, an audiology professor at the University of Northern Colorado. "The risk is there but the risk lies with the user and where they set the volume."

The Cupertino-based company ships a warning with each iPod that cautions "permanent hearing loss may occur if earphones or headphones are used at high volume."

Apple was forced to pull the iPod from store shelves in France and upgrade software on the device to limit sound to 100 decibels, but has not followed suit in the United States, according to the complaint. The headphones commonly referred to as ear buds, which ship with the iPod, also contribute to noise-induced hearing loss because they do not dilute the sound entering the ear and are closer to the ear canal than other sound sources, the complaint states.

[FrogMan]

I'd assume we should be able to find similar lawsuits against Sony and their infamous Walk-Man in the early-mid 80's...

FM

[oliegirl]

This should get filed in the Stupid and Frivilous Lawsuit drawer along with the McDonalds "My coffee was hot - I am going to sue" suit.

I'm waiting for the day that someone cuts their hand while slicing bread (or something) and sues the knife maker b/c the knife was sharp.

I mean come on people!!!!!!!!!

[rkmsuf]

Clark, a noise like that could impare the kids hearing.

[BrianD]

What I find amazing is that this guy isn't even claiming hearing loss. He is just bring the lawsuit because hearling loss is possible.

[JPhillips]

Olie: There is another lesson to be learned in the McDonalds lawsuit. The woman in question started by asking McDonalds to pay her hospital bills, a not unreasonable request given the severity of her burns. McDonalds refused to discuss the matter and got hit with a giant lawsuit.

This is something I've read about a lot recently. Companies and hospitals can generally save themselves a lot of grief and legal expenses by owning up to mistakes/problems at the beginning and paying small claims. The legal profession, however, has been trained to never admit fault. There are real problems that could arise from companies taking the blame early, but there is a fair amount of evidence that many lawsuits would never get filed if the plaintiff felt like they were treated with respect from the beginning.

[bbor]

huh?

[rkmsuf]

Originally Posted by bbor

huh?

Great, are you happy now Clark? He's deaf.

[oliegirl]

Originally Posted by JPhillips

Olie: There is another lesson to be learned in the McDonalds lawsuit. The woman in question started by asking McDonalds to pay her hospital bills, a not unreasonable request given the severity of her burns. McDonalds refused to discuss the matter and got hit with a giant lawsuit.

This is something I've read about a lot recently. Companies and hospitals can generally save themselves a lot of grief and legal expenses by owning up to mistakes/problems at the beginning and paying small claims. The legal profession, however, has been trained to never admit fault. There are real problems that could arise from companies taking the blame early, but there is a fair amount of evidence that many lawsuits would never get filed if the plaintiff felt like they were treated with respect from the beginning.

How is serving hot coffee a mistake?

And I find it VERY hard to believe that when faced with this lawsuit - if they did indeed refuse to pay the hospital bills beforehand - they didn't make some kind of a settlement offer, but because she had hired some money hungry attorney, she ended up turning it down because she was greedy and was told she could make a fast buck by suing one of the most recognizable companies in the country. She allowed herself to be convinced that what she was doing (by refusing a settlement) was right, when it wasn't.

[ISiddiqui]

Originally Posted by olligirl

with the McDonalds "My coffee was hot - I am going to sue" suit.

That wasn't frivilous. From McDonalds serving the coffee way hotter than safe temperatures (because they had substandard coffee and heating it that high made it taste better), to being told by various people that they'd gotten serious burns before, and McDonald's just not caring. They deserved to get slammed. Now the final amount they had to pay was $500,000, but I think they should have been slammed by more punitive damages. If you get told your practices are unsafe and you do them anyway, you shouldn't get a slap on the wrist for it.

[Kodos]

I'm suing Microsoft because my eyes are going bad from looking at my computer screen every day.

[FrogMan]

Originally Posted by Kodos

I'm suing Microsoft because my eyes are going bad from looking at my computer screen every day.

While using a Mac...... but they don't have to know that, right?

FM

[Kodos]

Shhhhh!

[ISiddiqui]

Originally Posted by Kodos

I'm suing Microsoft because my eyes are going bad from looking at my computer screen every day.

You should sue for sore wrists

[KWhit]

Originally Posted by ISiddiqui

You should sue for sore wrists

I tried to sue Angelina Jolie for that but it was thrown out of court.

[Kodos]

Originally Posted by ISiddiqui

You should sue for sore wrists

I hear ya... Carpal tunnel from the keyboard!



(Actually, typing for any time at all does make my wrists ache.)

[bbor]

I'm suing FOFC for those pop up adds....they made me eat more unhealthy food...taco bell Wendys...etc etc

So ya all can send me a 5 spot if you wanna make this go away

[Huckleberry]

oliegirl -

Read up

[oliegirl]

Originally Posted by Huckleberry

oliegirl -

Read up

I admitted I didn't know the details of the case, and I appreciate the information - and for the most part, I agree with what it says. The one part I disagree with is the fact that she was only 20% responsible for the spill? She spilled the coffee on herself. She could have asked her grandson to hold the coffee while she prepared the cream/sugar. But instead she put a hot cup of coffee between her knees - I think she is 100% responsible for spilling it. She didn't spill it b/c it was too hot. She spilled it because she was careless. I have no problem with them paying her medical bills, and agree that they probably should have agreed to pay the $20K up front. But them refusing that doens't hold them liable for her bad judgement, bad balance, whatever. That is where I find fault with the suit, her attorney, and Mrs. Lieback...and with alot of other people who have filed similar suits.

I also find fault with the jury that sat on this case. I think it was 12 people who thought "wow, maybe someday something like this will happen to me and I can become a millionaire". 2.7 mil in punitive damages is completely ridiculous. And it set a precedent for suits like the iPod one this thread was started about. People who would rather say "so and so is to blame for not telling me this could hurt me" instead of saying "hmm, I guess putting a cup of hot coffee between my knees while I am sitting in a car is not the most intelligent thing I could have done" or "hmm, turning my iPod up very loud and putting my headphones in my ears might cause damage to my hearing".

[ISiddiqui]

Originally Posted by ollegirl

2.7 mil in punitive damages is completely ridiculous.

No, it really isn't. McDonald's knew their coffee was too hot (saying that their customers drank it at home or at work, so it'd be cooler then, which is utterly retarded) and knew it caused serious burns before, but did absolutely nothing about it. $2.7 mil is absolutely nothing for a company like McDonalds.

[oliegirl]

Originally Posted by ISiddiqui

No, it really isn't. McDonald's knew their coffee was too hot (saying that their customers drank it at home or at work, so it'd be cooler then, which is utterly retarded) and knew it caused serious burns before, but did absolutely nothing about it. $2.7 mil is absolutely nothing for a company like McDonalds.

It's nothing to them, but it's a huge amount to most people. That is my point. Those people on the jury thought "hmm, if we give this lady 2.7 mil, maybe one day I'll spill coffee, go deaf from blasting my headphones, slicing off my finger, etc..." and I can blame it on someone else and get 2.7 mil. It set a precendent and since this case, you can look and see the crazy stupid lawsuits that have come about. And will continue to come about until a jury/judge says "we'll order them to pay your medical bills and change their policy/serving temperature, whatever - but you have to take responsibility for your part in it so that is all we are going to make them pay."

[rkmsuf]

Had she only put some balm on it would have turned out differently.

[ISiddiqui]

Originally Posted by oliegirl

It's nothing to them, but it's a huge amount to most people. That is my point. Those people on the jury thought "hmm, if we give this lady 2.7 mil, maybe one day I'll spill coffee, go deaf from blasting my headphones, slicing off my finger, etc..." and I can blame it on someone else and get 2.7 mil. It set a precendent and since this case, you can look and see the crazy stupid lawsuits that have come about. And will continue to come about until a jury/judge says "we'll order them to pay your medical bills and change their policy/serving temperature, whatever - but you have to take responsibility for your part in it so that is all we are going to make them pay."

Yeah, not the point. Punitives are there to PUNISH the offender for their recklessness. The fact that McDonalds makes so much means the amount of punitives is going to have to be high to punish them, and even with $2.7 mil, that's only 2 days worth of coffee sales for them. I mean really, McDonalds will just continue to let people take them to court, pay them off, and continue what they are doing. The only way out is to fine them BIGTIME.

Maybe then they'll get the message.

[albionmoonlight]

First, jury verdicts do not set precedent. Lower courts are obligated to follow the legal conclusions reached by higher courts. And the highest court in any jurisdiction will generally follow its own precedents under the theory of stare decisis. But I have never heard of a jury verdict in a particular case being used as "precedent."

That aside, there are lots of interesting theories about punitive damages, some of which oliegirl is noting. First, a group of professors did an interesting study with juries. They took a bunch of juries and gave them all a list of various wrongful conduct by corporations that injured people. They asked the juries to rank these conducts on a scale from "most egregious" to "least egregious." Almost all of the juries had remarkably similar views on the egregious nature of the conduct. In other words, we all kind of agree on what is good and bad and really bad behavior.

The problem comes in, these professors argued, with the unbounded scale on which juries are asked to set economic damages. We can mostly agree that case A deserves more damages than case B than does case C. But we have no way of knowing whether case B deserves $1,000 or $100,000 or $1,000,000. And juries are very bad at dealing with dollar figures that seem like Monopoly money to them. What these professors suggested is that juries are given sample fact patterns and sample award amounts--something to let them know what is expected of them. As long as you can give them that starting off point, they then are able to apply their (surpisingly good) rational thought to the process.

If I had a bit more time and energy, we could also start to discuss the theories behind punitive damages. There is a LOT more going on under the surface here than at first blush appears.

[CamEdwards]

i guess the thing that bothers me most about this case is the fact that the guy is suing because the ipods have the "potential" to cause injury.

If that's now going to be the standard we use then virtually any manufacturer could be sued for their product.

[oliegirl]

Originally Posted by CamEdwards

i guess the thing that bothers me most about this case is the fact that the guy is suing because the ipods have the "potential" to cause injury.

If that's now going to be the standard we use then virtually any manufacturer could be sued for their product.

So can I sue the company who made my lamp and/or light bulbs? The bulbs are glass, and when they break, they are sharp - and there was no warning on the light bulb box about this.

[ISiddiqui]

Originally Posted by CamEdwards

i guess the thing that bothers me most about this case is the fact that the guy is suing because the ipods have the "potential" to cause injury.

If that's now going to be the standard we use then virtually any manufacturer could be sued for their product.

Any manufacturer can ALREADY be sued for anything. It's whether they'll win .

But I have a feeling this'll be tossed. He hasn't even met the burden of production that the iPod was responsible for his hearing loss. He just says it may have... and that ain't good enough! Unless he gets something dynamite in discovery.

[ISiddiqui]

Originally Posted by oliegirl

So can I sue the company who made my lamp and/or light bulbs? The bulbs are glass, and when they break, they are sharp - and there was no warning on the light bulb box about this.

Yeah sure... just don't expect to win. Unless the bulbs are made of a material that shatters much easier and are sharper than ordinary bulbs... and they've recieved hundreds of complaints and did nothing about it.

[CamEdwards]

I'm so ready for a loser pays system.

[Drake]

Originally Posted by ISiddiqui

Yeah, not the point. Punitives are there to PUNISH the offender for their recklessness. The fact that McDonalds makes so much means the amount of punitives is going to have to be high to punish them, and even with $2.7 mil, that's only 2 days worth of coffee sales for them. I mean really, McDonalds will just continue to let people take them to court, pay them off, and continue what they are doing. The only way out is to fine them BIGTIME.

Maybe then they'll get the message.

I'll be happy for a settlement big enough to make the coffee drink-able before I get to work. My commute is 45 minutes, and I can't get the coffee cool enough to drink for the whole trip without taking the lid completely off.

Of course, that's why I don't get my coffee from McDonald's in the morning. Well, that and the fact that I'm a cheap bastard.

[Drake]

Originally Posted by CamEdwards

I'm so ready for a loser pays system.

Except for when the bad guys win.

[albionmoonlight]

Originally Posted by CamEdwards

I'm so ready for a loser pays system.

Each party bearing his own legal costs has been part of the Anglo-American legal system since it began. Personally, I am not a big fan of "this is how they did it in the 1700's, so that is how we need to do it now" arguments, but a lot of people seem to be, so I thought that I would throw that out there.

A straight "loser pays" system has several pretty large problems. First, it would strongly discourage the bringing of legitimate suits. Plaintiffs' work is already like wildcat-type oil drilling. Coming up empty a few times can eat up your nest egg pretty quickly. Changing the rules by forcing losers to pay fees would drive out a lot of suits that have merit.

Second, most people would not be able to bring suit at all. No matter how legitimate my claim, how could I bring a suit that might end up with me paying the alleged tort-feasors legal bills if I do not have the money to do that? (And my lawyer actually could not pay the fees for me--ethical rules and all that).

Third, it would strongly increase the amount of collateral litigation. We would spend lots of resources deciding who "won" a case that settled and just arguing--not about cases--but about fees. Just look at how much time and money is spent on Rule 11 litigation and look at what is happening under the Private Securities Litigation Reform Act--lots and lots of time and money wasted arguing over the arguments.

Finally, legal fees would go through the roof. The thing that helps keep legal fees down is that the client is the one paying the bills. And, like all bill payers, the client keeps constant pressure on the lawyers to work efficiently. If it turned out that the lawyers were able to rack up fees with no client pressure to keep them down (in fact, with an incentive to make them higher than they needed to be)? Then you would see the system break down. All the money in the world would go to the lawyers.

In short, a loser pays system would add lots of inefficiency to the system and discourage valid suits. We would all pay lots more in the long run.

There are, of course, limited applications of loser pays that make a lot of sense, IMO. For instance, I think that medical malpractice should be brought before medical review boards before they see a courtroom. The board will award you X dollars. You can then either take X or go to a jury. If the jury gives you more than X--then good for you. If, however, the jury gives you less than X--then watch out. I think you should totally be smacked down at that point.

So, I agree somewhat with your general point, but the issue is a lot more subtle than it at first appears.

[John Galt]

Good post, albion.

I want to echo the point that there are many instances in the law were fee shifting is allowed. I think pursuing an ad hoc approach toward fee-shifting makes a lot more sense than a general rule that discourages good faith lawsuits from being brought.

[John Galt]

Originally Posted by CamEdwards

i guess the thing that bothers me most about this case is the fact that the guy is suing because the ipods have the "potential" to cause injury.

If that's now going to be the standard we use then virtually any manufacturer could be sued for their product.

Assuming the media's account is right (a BIG assumption), I wouldn't read too much into it. "Potential" damage is rarely actionable. However, there are certainly instances (unlike this one) where it makes sense.

For example, allowing "potential" damage to be the basis for a claim is reasonable in a situation where a company pours toxins all over your neighborhood, but the toxins don't cause immediate harm. Instead they cause a 50% risk of causing a very specific disease years later. Once you develop the disease, you die within months. In that case, there is a pretty reasonable argument for compensating everyone exposed (for 50% of the potential damages) rather than waiting to give victims money months before they die (which means they will never actually get it during their lifetime).

The potential damages exceptions are narrow, so I doubt it will work in this case.

[sabotai]

So, does the iPod's volume go to 11?