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Another stupid lawsuit!


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Oh, this is rich....

Man Sues Apple over Potential Hearing Loss

Another article on the same thing.

Talk about a classic case of somebody not wanting to take personal responsibilites. This dude is actually suing Apple because of there is a potential for hearing loss due to listening to iPods. No $#!+ Sherlock! That is why there is a volume control on the stupid things. Also, there is already a warning about possible hearing lost from listening at to great a volume - if the guy even bothered to crack open the user's manual.

I am worried that if this lawsuit actually goes anywhere, this opens the door to the likes of Klipsch being sued since there is a potential of hearing loss from listening to the stereo systems. This could result in obnoxious volume limiters or other "nanny" technology being put in the pre/pro's and so forth, not to mention simply increase the cost of buying this stuff in the first place.

I pray to the Good Lord above that this one gets thrown out with the trash like it should be!

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I don't know if a law suit is appropriate in this case. But sometimes hearing loss can occur because of circumstances beyond the user's control. When I was in college, I met a guy who had just had surgery to restore his hearing. Seems he fell asleep listening to music with headphones and his idiot roomie cranked up the volume on him. The fact that Apple makes something that is capable of producing volume levels that are known to cause permanent hearing loss is just asking for trouble.

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Ah, the law! One of my favorite topics.... So, here's what's going on that the article probably does not mention (I didn't read it):

Malcom's point is well-taken. In products liability cases, misuse of a product by itself is not a complete defense for the manufacturer. There is also a duty on the manufacturer's part to adequately design a product to account for reasonably foreseeable misuse.

Like was said, the fact that they make headphones capable of destroying hearing could be asking for trouble. I don't have pity for adults who know better and proceed to destroy their hearing, but iPods like these in the hands of 6-15 year-olds can be a different issue.

If you make a product you know is dangerous - and you know can be made safer, and if the product you make is marketed by you to people you know will misuse it due to ignorance, childish behavior, or convenience - you might ought to be asking yourself why we make products like these and purposefully market them to people we know will hurt themselves.

Certain products don't always have a reasonably safer alternative, despite knowing people will hurt themselves with them. A classic example is the kitchen knife. People will cut themselves with them, and you can't make one that doesn't cut people and have it still serve its intended purpose at a reasonable cost. The balancing factors when considering a safer design are utility vs. cost, assuming the technology exists to modify its design. If the technology does not exist, the manufacturer wins.

Getting down to utility vs. cost on iPods that are known to cause damage to hearing: Unlike home stereos where distance of the listener from the speaker is known to vary widely (thus, requiring the equipment to play at levels that would cause damage if you were too close, but not if you were far away), the iPod has only one purpose. That is, to stick the speaker right up to your ear. That's where it's going to be.

So, given we know where the speaker is always going to be in relation to the ear, why is it made so that it can do damage? Sounds irresponsible to me because the utility to be derived from the extra volume is certainly outweighed by its propensity to do serious, irreversible harm. And, yes, I think a manufacturer does have some duty to consider safety issues and utility when designing a product.

.... And so does the law, so it's not just my opinion.

And for additional food for thought, I'd like to remind anyone who wants to think all is well by simply containing warnings in an instruction book, that very few people read all the contents of a manual before using a product.

For example, I had a case about a year ago where a manufacturer sold shingles that were defective. It turns out they did not seal, and every single shingle on the roof allowed rain to soak in like a sponge. Guess what that does to a house? Now, put yourself in the position of having re-shingled your own house with these new 30-year shingles, to find out a few months later that your house is soaked, mildewey, and moldey in the attic, in the walls and down into the hardwood floors. Then, when you call the manufacturer and make a claim, they deny it as far as anything other than replacing the shingles because the terms of their limited warranty (which you should have seen) disclaim any liability for damages that their products cause to your home and furnishings. Congratulations! We'll give you a couple thousand worth of new shingles. And good luck restoring your home!

Needless to say, we did not buy-off on the claimed ability of the manufacturer to slip in such a drastic limitation of ordinary liability for consequential damages and think for a minute that just because it was on a piece of paper somewhere in or on the packaging, that made it binding.

If you had to read every word written by the manufacturer on everything you bought, there'd be no time to hold a job to enable you to buy the things in the first place. Manufacturers know their materials go unread. It is a fact of life, and not all the buyer's fault. We cannot expect the world to stop spinning because manufacturers want to dump alot of paper on us.

It is all about responsibility. The manufacturers are given some of the responsibility, too. To think that all they have to do is have an attorney spend 20 minutes to an hour writing something on paper, and "poof!" no more responsibility, is backwards. JMHO. It also happens to be the law.

Just imagine if you bought a CD-player, and it was known by the manufacturer that 1 in 523,000 will cause a fire, but the cost of re-designing is too expensive in relation to another alternative. That other alternative is to have the attorneys put somewhere in the manual that your only remedy for purchasing a defective CD player is repair or replacement and in no instance will the manufacturer be liable for any consequential or incidental damages caused by a defective unit. What will you do if that CD player burns down your home? Will you "lump it," or will you see if they really have the ability to limit your remedies in such a fashion? I know what I'd do.

What would you do in the same case if in the same part of the manual, there was something in bold that stated claims data shows this model CD player is known to start fires in 1 out of 523,000 units sold? Hmmm... is that adequate protection, just because there was a warning? Should it be enough to warn in every circumstance? Or are there circumstances where warnings alone are not enough, and a re-design or recall is in order?

And for those who would claim that consumers should read all this stuff and that those who do at least have the option to not buy it, the law factors in these so-called contracts of adhesion. It is basically a manufacturer's attempt to create a contract where there was no real ability to negotiate it. What are you going to do? Not buy shingles and CD players? Don't you know that virtually every manufacturer of every product slips in contracts of adhesion with the hopes you will be bound by them? Of course, you do.

The law frowns upon attempts to escape liability for damages you anticipate will be caused by simply sticking in a contract of adhesion that you know the consumer will not reasonably be able to avoid.

Enough of the long rant, but I included this to let anyone who's interested know that these issues go WAY deeper than what you read in a newspaper article, and they affect each and every one of us in very significant ways. The same results you wish for in a case like this may likely be the same result foisted upon you or someone you know in a similar case involving something as basic as shingles, medicine, ladders, cars, etc.

So, if you get a chance of being on a jury, think about the larger ramifications of this entire area of law before slamming someone for hurting themselves with headphones. The nature of the issue is what is important - and not so much the persons involved. Manufacturers sell to all kinds of people... smart people, idiots, children, elderly, sick, busy, etc. Your one decision is meant to establish a standard for all of these groups in a way that best balances the responsibilities between manufacturers and consumers of products.

Ask all the relevant questions. What is the nature of the product? What is its purpose? Who will buy it? Who will use it? Are the buyers not necessarily the users? Are there differences in character traits among the consumers who will use it? Is the feature in question worthwhile, or does it do more harm than the utility, if any, that it provides? Is there a safer alternative? If so, what would it cost? Is a warning supplied? If so, how conspicuous is it? Did the consumer have a meaningful chance to negotiate terms of the warranty/contract? What level of awareness did/should the manufacturer have of the particular type of harm now being complained about? Is a warning enough, or should the product be re-designed to reduce the risk in the first place? Who should bear the cost associated with the loss? Who is better able to bear it? Could the price of the product be increased slightly so that the public, at large, pays a little more, and everybody gets a better product with less propensity to cause harm?

These are all very important questions, and I would think when answering them, most everyone here would not go against the consumer on many important factors. True, you might still go with the manufacturer in the end, but I doubt when you consider all these things, you'd still consider it a slam dunk case against the consumer.

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Jeff, Points well taken, however in my opinion,..... I feel that this whole younger world (and some of the elders), does not want to carry the burden of being responsible AND accountable for their actions.

WE DO have control over our actions. When we hold a gun (shooting device) we should be under the assumption that it IS dangerous.

Our parents should have taught us these things.

I have found that a LOT of people were better fed than taught.

This could translate (and prolly does) to an anxious economy and people wanting and being addicted to MORE. Both patents have to work and their kids get TV/video and Mickey D's for an education..

Bla, Bla, Bla........ and, On, and On, and On..............

That's my rant.

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nice post Jeff. I totally believe, in this case anyway, that the user is at fault and not Apple. A volume control is quite basic, and if one isn't aware of the consequences of abusing the ear with very loud music over a long period of time... well, hes responsible for his loss. But I guess its more complex than that.

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Nice post Jeff, BBBUUUTTTT this world has gotten to be way to sue happy and trying to make a buck for its own stupidity, and there are some lawyers exploiting this. People need to buck up and take responsability for there actions. Like you said there are thousands if not millions of products out there that are dangerous and if not used proporly they can hurt or kill you, but as long as you use them as directed they will not hurt you. I for one don't think that people should be able to make money because they are stupid. OK I will stop now....................................

Maybe some day we can sit down with a beer and I will tell you a story about my neighbor.[:@]


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nice post Jeff. I totally believe, in this case anyway, that the user is at fault and not Apple. A volume control is quite basic, and if one isn't aware of the consequences of abusing the ear with very loud music over a long period of time... well, hes responsible for his loss. But I guess its more complex than that.

I see many comments relating to the user's standard of care. This is an important point. Do we hold all users of products to the same standard of care? Should a 6 year old be expected to fully-appreciate the risks of harm like we'd expect of an adult? What about a 12 year old? What about a 15 year old?

The law allows 18 year olds to vote, but not to drink alcohol (at least in many states). Could it be that the law recognizes that even people over the age of majority still remain too young to have a full appreciation of certain risks?

Is it possible that a person might be too young to appreciate that the pain associated with loudness is irreversibly damaging hearing, as opposed to doing something that will heal itself with a few hours of abstention?

Is it also possible that some people are just too young to listen to their elders' advice, and that's why we have laws that prohibit them from being able to purchase some products that are capable of causing harm? Alcohol and tobacco are great examples, yet kids are taught at very young ages that drinking and smoking is harmful to health. Despite the teachings from parents, the law seems to assume kids (and even young adults) won't listen anyway, so manufacturers and retailers are prohibited from selling to them anyway.

Does any of this affect your consideration of the issues in any way, or would you hold all consumers to the same standard and blame them or their parents for whatever harm a product does to them?

Is it inconceivable that a parent might give his/her young teen $100 to go buy an iPod, yet the parent never even sees the iPod package or gets to read it - thereby having no idea that there was anything at all to warn about?

Just curious.....

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As just another example to better explain some principles involved in product safety, the law envisions the marketing of products efficiently, but with a fair balance to protect human health. That's why, despite obvious dangers, there still exist safety features on many products.

Take an electric miter saw (chop saw) for example. The blade guard was added, even though it was obvious that a spinning blade could cut you. Why would the manufacturers be expected to add safety features when the risk of harm is obvious?

Could it be that the standard of care that the products liability laws place on manufacturers is purposefully higher in order to induce the manufacturer to add safety features when it is reasonable to do so?

What would be so wrong in requiring iPod to reduce the amount of volume output from the headphones if the only amount that is being "clipped off" is the damaging kind?

What would be the point of designing the iPod to play volumes that are known to damage your ears (as the distance from headphones to ears remains fixed - see my earlier post)? Is the potential for harm that this might cause not worth "whatever" iPod might get out of manufacturing iPods to produce damaging volumes? Why would iPod want to do that?

Whatever its reason, should iPod not have to answer, or take some responsibility, for putting an unsafe product on the market and going no further than to pass on a warning - even though it had the ready means to make it safe in the first place, so that no warning would be necessary?

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Okay, I just read the first article to educate myself better. It seems the lawsuit is not necessarily claiming the guy had hearing loss. He's just trying to claim, on behalf of all consumers, that the iPod is unreasonably dangerous because it can play 115dB. He wants the iPod to be re-designed or a software put into it to limit its output, like was done with the iPod in France.

I see nothing at all wrong with this suit. It seems to be a straight up debate about risk of harm vs. utility - being whether the iPod is unreasonably dangerous since it plays at 115dB which is alleged to be unreasonably loud coming from headphones placed right up to the ear canal.

Either the iPod is found to be unreasonably dangerous, or it is not.

What we do know is that iPod claims it provides warnings. Why does it provide warnings? Is it because it knows the product is potentially dangerous? Yes. Is it because it anticipates people might listen to music at damaging levels and they might not know it is damaging? Yes? Do these factors seem to possibly infer that making the think do 115dB is pointless? Maybe. Do they possibly infer that making them do less would be better for everyone? Maybe.

That seems to be the point of the case, and I see nothing offensive about it. JMO.

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BTW: I don't take sides on who should win the lawsuit. I just want to add lots of important considerations that should be relevant before jumping to conclusions.

Alot of these same considerations are what lead to the verdict against McDonald's in the infamous coffee case. Does everyone agree the coffee case was a joke?

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