Turn Up the (Class Action) Volume
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It is a basic premise of tort law that a plaintiff, in order to win a judgment against a defendant, must prove damages — some form of measurable and compensable harm.
Or at least it used to be:
Let's review some product liability law: To prevail, the plaintiff must show that a product is either defectively manufactured, defectively designed, or improperly labeled.
No one, not one single person anywhere (including this plaintiff), has demonstrated that the iPod is defectively manufactured (with respect to headphones, that is). No one has gone deaf from iPods.
As for defective design — the very fact that the iPod is by far the best-selling MP3 player is fairly convincing proof to the contrary.
As for defective labeling, the iPod already includes a warning about volume.
One might ask why Apple designed the iPod to allow for "defectively" high volumes. Well, I for one leave my iTunes and other media software volume settings on maximum and control my speaker volume instead. Perhaps people who use the iPod without headphones want the same option. I, like many others, also don't use Apple's ear-bud headphones.
In any case, the real point here is, as I said, that the plaintiff has not demonstrated hearing loss. How can he possibly have standing to sue, let alone serve as the representative plaintiff of a class action?
The mere potential for harm is not, without more, sufficient to allow a lawsuit. This is not asbestos, in which the connection between exposure and a serious risk is well-established. Neither is this Vioxx, where the (alleged) risk of a cardiac event was (allegedly) concealed from doctors and patients. Finally, this is not a question of iPod battery failure, which is a real phenomenon that has been well documented and has caused real economic harm to iPod purchasers.
No, this iPod litigation is mere speculation: "maybe someday somebody somewhere might have some form of hearing loss..."
That is simply not a valid lawsuit.
More thoughts from Overlawyered, Adrift at Sea, Division of Labour, Rolling Doughnut, Truth on the Market, Atlas Blogged.
Or at least it used to be:
A Louisiana man claims in a lawsuit that Apple's iPod music player can cause hearing loss in people who use it.Oh really?
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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.
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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.
Let's review some product liability law: To prevail, the plaintiff must show that a product is either defectively manufactured, defectively designed, or improperly labeled.
No one, not one single person anywhere (including this plaintiff), has demonstrated that the iPod is defectively manufactured (with respect to headphones, that is). No one has gone deaf from iPods.
As for defective design — the very fact that the iPod is by far the best-selling MP3 player is fairly convincing proof to the contrary.
As for defective labeling, the iPod already includes a warning about volume.
One might ask why Apple designed the iPod to allow for "defectively" high volumes. Well, I for one leave my iTunes and other media software volume settings on maximum and control my speaker volume instead. Perhaps people who use the iPod without headphones want the same option. I, like many others, also don't use Apple's ear-bud headphones.
In any case, the real point here is, as I said, that the plaintiff has not demonstrated hearing loss. How can he possibly have standing to sue, let alone serve as the representative plaintiff of a class action?
The mere potential for harm is not, without more, sufficient to allow a lawsuit. This is not asbestos, in which the connection between exposure and a serious risk is well-established. Neither is this Vioxx, where the (alleged) risk of a cardiac event was (allegedly) concealed from doctors and patients. Finally, this is not a question of iPod battery failure, which is a real phenomenon that has been well documented and has caused real economic harm to iPod purchasers.
No, this iPod litigation is mere speculation: "maybe someday somebody somewhere might have some form of hearing loss..."
That is simply not a valid lawsuit.
More thoughts from Overlawyered, Adrift at Sea, Division of Labour, Rolling Doughnut, Truth on the Market, Atlas Blogged.
Related Posts (on one page):
- "Have You Tried Rebooting?"
- Turn Up the (Class Action) Volume
- The Economics of Battery Failure
Posted by Kip on
2 February 2006
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