The Garcia Law Firm files national class actions against Motorola arising from Motorola's marketing, manufacture, and distribution of devices known as "Bluetooth Headsets" which are alleged to be unsafe for practical use and cause hearing damage to consumers. (For more information visit bluetoothhearingloss.com)
The Garcia Law Firm files national class actions against Motorola arising from Motorola's marketing, manufacture, and distribution of devices known as "Bluetooth Headsets" which are alleged to be unsafe for practical use and cause hearing damage to consumers.
The Complaint alleges:
This action arises from Defendants' marketing, manufacture, and distribution of devices known as "Bluetooth Headsets" which permit wearers to utilize a mobile phone without holding the phone next to the face and without the necessity of wires connecting the phone to the headset.
MOTOROLA has manufactured and distributed many different models of Bluetooth Headsets, including the HS830, the H3, the H300, the H500, the H605, the H700, the HS805, the HS815, the HS820, the HS850, and the HT820 (collectively the "Headsets"). Each Headset is defective in design and not sufficiently adorned with adequate warnings regarding the likelihood of noise induced hearing loss which can occur if the Headsets are used at the higher volume settings over a period of time, a condition which has no cure or treatment.
Use of Bluetooth headsets is becoming increasingly popular among the consuming public because of the ease and convenience associated with the technology. According to the Insight Research Corporation ("IRC"), "[n]early 65 percent of Americans, or 195 million people, are expected to be mobile phone subscribers by the close of 2005." IRC has also reported that "[a]s users become more used to the convenience of cellular, long distance and local usage is shifting from wireline to cellular. The average wireline residential toll minutes of use (MOUs) have been dropping at a compounded rate of 15 percent since 2000, while wireless interstate MOUs per user grew at a compounded rate of nearly 40 percent during the same period. According to one FCC study, on the wireless side, the percentage of interstate residential minutes has increased from 16 percent to 26 percent of all wireless minutes." As more and more people switch from using landlines to using mobile phones in order to accommodate their telecommunication needs, more and more consumers are spending hours per day on the mobile phone. Such increased usage is particularly dramatic with respect to individuals using a mobile phone for business purposes.
As explained by the National Institute on Deafness and Other Communication Disorders (NIROCD) (www.nidcd.nih.gov/health/hearing/noise.asp), "[h]earing is a series of events in which the ear converts sound waves into electrical signals that are sent to the brain and interpreted as sound. The ear has three main parts: the outer, middle, and inner ear. Sound waves enter through the outer ear and reach the middle ear where they cause the eardrum to vibrate." Noise induced hearing loss "can be caused by a one-time exposure to loud sound as well as by repeated exposure to sounds at various loudness levels over an extended period of time."
"The vibrations are transmitted through three tiny bones in the middle ear, called the ossicles. These three bones are named the malleus, incus, and stapes (and are also known as the hammer, anvil, and stirrup). The eardrum and ossicles amplify the vibrations and carry them to the inner ear. The stirrup transmits the amplified vibrations through the oval window and into the fluid that fills the inner ear. The vibrations move through fluid in the snail-shaped hearing part of the inner ear (cochlea) that contains the hair cells. The fluid in the cochlea moves the top portion of the hair cells, called the hair bundle, which initiates the changes that lead to the production of nerve impulses. These nerve impulses are carried to the brain, where they are interpreted as sound. Different sounds move the hair bundles in different ways, thus allowing the brain to distinguish one sound from another, such as vowels from consonants."
Plaintiff is informed and believes that noise induced hearing loss is the slow loss of hearing caused by too much noise. Hearing loss happens when too much noise hurts the hair cells in the inner ear. Noise induced hearing loss is one of the most common causes of nerve deafness. Noise induced hearing loss lasts forever. There is no treatment, no medicine, no surgery, and no device which can correct hearing once damaged by noise.
Noise induced hearing loss can happen gradually over time and does not cause pain. As such, one may not be aware that noise induced hearing loss is occurring until it is too late.
Noise induced hearing loss can also result because an individual has become accustomed to a particular sound level. As the individual gradually suffers hearing loss, in an effort to compensate for the decrease in ability to hear, the individual unwittingly increases the volume of a device in order to hear the sound produced and thereby compounds the injury.
. Noise induced hearing loss is a serious and permanent injury. According to the UCLA Ergonomics division, normal conversation measures around 60 decibels and headphones kept at this level do not pose a risk of hearing loss.
17. Exposure to a time weighted average decibel level by itself can cause ham. One knowledgeable organization, the National Institute for Occupational Safety and Health (NIOSH), has offered the view that exposure to sound averaging at 85 decibels for more than 8 hours a day by itself presents a risk of hearing loss. According to NIOSH, each three decibel volume increase reduces the safe exposure time by half, which reflects the logarithmic nature of the decibel scale. For example, if a Headset set on the higher volume level produces decibel levels of 91 decibels, noise induced hearing loss could occur if the Headset is used for more than two hours a day. At 94 decibels, noise induced hearing loss could occur if the Headset is used for more than one hour a day. Of course, the time weighted average standards do not address the harm caused by a very brief exposure to high decibel spikes of noise, as addressed infra.
Another organization, Dangerous Decibels, a public health partnership for the prevention of noise induced hearing loss, advises the public that "[a] dangerous s o d is anything that is 85 dB (sound pressure level - SPL) or higher." The organization further explains that "[o]f the roughly 40 million Americans suffering from hearing loss, 10 million can be attributed to noise-induced hearing loss (NIHL). NIHL can be caused by a one-time exposure to loud sound as well as by repeated exposure to sounds at various loudness levels over an extended period of time."
MOTOROLA's Headsets have volume controls which have the capacity to produce sounds with time weighted averages exceeding 85 decibels, with sound often peaking in excess of 100 decibels. The Headsets are designed in such a manner that the consumer is deprived of any ability to determine the decibel level of the sound being emitted from the Headset. In a test recently performed by the American Speech-Hearing-Language Association, MOTOROLA's H700 model Headset produced decibel levels of up to 106 decibels at the high setting. According to the time weighted average standards suggested by such organizations as NIOSH and Dangerous Decibels, a consumer could suffer NIHL if exposed to such sounds for between only three to four minutes a day.
Motorola sold the Headsets with a booklet setting forth safety information relating to use of the Headsets. However, Defendants omitted and concealed from consumers any safety information pertaining to the Headsets' propensity for causing noise induced hearing loss. Defendants also omitted and concealed from the consuming public information advising that the Headsets produced noise at decibel levels exceeding 85 db, and even exceeding 100 db.
The same misrepresentations, omissions and concealments were made in the product packaging to each consumer who purchased the product. Plaintiffs and the class members relied upon the misrepresentations, omissions and concealments in purchasing the Headsets.
Because the Headset transmits sound to only one ear, extraneous sound from the environment is simultaneously being heard by the Headset user from the other ear. Such ambient sound makes it more difficult for the Headset user to isolate and hear the sound being transmitted over the Headset. The Headset user is thus required to maximize the volume of the Headset in order to overcome the extraneous noise being heard in the other ear.
Millions of consumers have had their hearing put at risk by MOTOROLA's conduct. Because the Headset transmits sound to only one ear, extraneous sound from the environment is simultaneously being heard by the Headset user from the other ear. Such extraneous sound makes it more difficult for the Headset user to isolate and hear the sound being transmitted over the Headset. The Headset user is thus required to maximize the volume of the Headset in order to overcome the extraneous noise being heard in the other ear.
Plaintiff has purchased a Headset manufactured and distributed by Motorola. Plaintiff has used the Headset at the maximum volume level. Plaintiff was aware that the Headsets were emitting sound in excess of safe decibel levels and that they were being exposed to the potential for noise induced hearing loss over time. If Plaintiff had been advised by Motorola that the Headsets produced sound in excess of 85 decibels when set at the higher volume setting, then Plaintiff would have known that they would be required to minimize the time during which the higher volume settings were used or not use such settings at all.
The design, manufacture, distribution and sale by Motorola of the Headsets without adequate warning labels and in a manner which produces decibel levels harmful to the human ear constitutes deceptive and unlawful business practices. As a result of Motorola conduct, numerous consumers have been exposed and continue to be exposed to the decibel levels harmful, or potentially harmful, to their ability to hear.
The packaging on the Headsets advises that the Headsets can be used for a certain amount of talk time. The various models indicate talk time of 3.5 hours, 6 hours, 8 hours, 10 hours, and even 17 hours. However, the representations as to permissible talk times are false, as a consumer cannot safely use the Headsets for the talk times represented. Plaintiffs and the Class members relied upon these representations made by Motorola in determining whether to purchase the Headsets at the high price charged for the devices.
MOTOROLA manufactures and sells its Headsets without any warning as to the decibel levels the devices emit. MOTOROLA sells its Headsets with a booklet entitled Important Safety and Legal Information." The booklet informs the consumer in bold print that it provides "IMPORTANT INFORMATION ON SAFE AND EFFICIENT OPERATION. READ THIS INFORMATION BEFORE USING YOUR DEVICE" The booklet contains three pages of "Safety information." The booklet also includes a four page section on "Wireless Phone Safety Tips." Despite the seven pages of material devoted to the safe use of the Headset, MOTOROLA fails to divulge the decibel output of the device and the potential for noise induced hearing loss if the Headset is used at a loud setting for more than a safe number of hours per day. The exclusion of such information from the safety information and tips in the booklet wrongly implies that the Headset is safe at its maximum volume for the hours of talk time permitted by the Headset.
Motorola affirmatively represented that the Headsets are "free from defects in materials and workmanship under normal consumer usage. . . ." This representation was and is false. The Headsets are defective and cannot safely be used for their intended purpose. The materials and workmanship of the product cause the product to produce unsafe decibel levels under normal consumer usage.
The Headsets can be used to listen to music or television downloaded onto mobile phones, including certain mobile phones manufactured and sold by MOTOROLA. Because of these new uses for the mobile phone, the time over which the Headsets are used is increased significantly. The decibel levels of the music or television also exceeds 15 decibel levels, and may even reach levels capable of producing hearing loss from a single exposure to the load sound emitted.
Other manufacturers of music listening devices, such as Apple with respect to its iPod, include a warning so that consumers are aware of the potential for hearing damage. For example, the iPod is sold with the following warning:
Avoid Hearing Damage
Warning: Permanent hearing loss may occur if earphones or headphones are used at high volume. You can adapt over time to a higher volume of sound, which may sound normal but can be damaging to your hearing. Set your iPod's volume to a safe level before that happens. If you experience ringing in your ears, reduce the volume or discontinue use of your iPod.
The Headsets manufactured, distributed and sold by Defendants, which contain no such warnings, thus fail to follow industry standards for music listening devices.
. Plaintiffs seek, on behalf of themselves and the Class, injunctive relief, product repair, restitution, damages, and all other appropriate relief. Motorola misrepresented the time period over which consumers could safely use the Headsets. In marketing and advertising the Headsets, Defendants also concealed and omitted material information as to the capacity for the Headsets to cause hearing loss. Plaintiffs and the Class members thus: (1) cannot safely use the Headsets for the length of time for which the Headsets were advertised as usable; or (2) must turn the volume of the Headsets so low as to render the Headsets unusable in most environments, thereby drastically limiting and/or eliminating the usability of the product. Had Plaintiffs and the Class they seek to represent known the true facts, they would not have purchased them or would have purchased them only at a lesser price. Plaintiffs, and the Class Members, thus lost money as a result of the misrepresentations, omissions and concealments by Defendants. In doing the acts herein alleged and purposefully risking the health and safety of millions of consumers in order to increase sales and profits, Defendants, and each of them, acted with oppression, fraud or malice, and Plaintiff and the Class members are entitled to punitive damages.
