Bluetooth Hearing Loss Litigation
The Motorola, Jabra and Plantronic actions ("Bluetooth Actions") have
many similarities to the action filed against Apple relating to the
propensity of the iPod to cause noise induced hearing loss. But, the
Bluetooth Actions are better. The iPods are sold with a warning that
use of the devise at excess volumes could cause noise induced hearing
loss. No such warning is given with respect to the Bluetooth headsets,
despite the fact that they produce volumes up to 106 dB. The scientific
community is largely in agreement that noise induced hearing loss
statistically occurs as a result of exposure to 85 dB for more than 8
Hours per day.  According to the National Institute of Safety and Health
(NIOSH), every three decibel level increment reduces by half the safe
time for listening to such volumes. 105 dB can only safely be listened
to for 3 minutes per day - beyond that and people are damaging their
hearing. As a result, the manufacturers' representations on the
packaging that the devices have talk time of 8 hours, 10 hours, and 17
Hours (depending on the model) are false.
The complaints we have filed in California allege violations of
CRLA, the UCL and the FAL, arising out of the manufacturers'
misrepresentations, omissions and concealments concerning the safe use
of the devices for extended periods. The complaints also allege causes
of action for unjust enrichment, breach of express warranty and breach
of implied warranty. We seek monetary damages relating to the purchase
price paid for the product. The average price for a Bluetooth Headset
is between $70 to $100.
We also are seeking injunctive relief. We request that the
Court issue an injunction prohibiting further sale of the product until:
- Motorola includes a warning advising the consuming public that the
devices emit sound in excess of 85dB, which thus requires a user to minimize the use of the product each day at the higher volume levels, and
- Motorola designs a mechanism by which the sound levels are either limited to less that 85 dB or which permits the user to be aware of the sound level. For example, in response to the iPod lawsuit, Apple
released software which restricts the decibel levels. As another example, Sony installed lines on the volume control for Sony Walkmans which permit the user to know at which level of the dial the volume
exceeds 85 dB.
Another important distinction between the iPod case and the
Bluetooth Actions is that the volume one listens to an iPod is somewhat
subjective and voluntary. This is not the case with respect to the
Bluetooth Headsets which, by design, necessitate use at higher volume
levels. The iPod is sold with headsets that go into both ears, and a
listener cranks up the volume solely for listening pleasure. The
Bluetooth, on the other hand, is designed so that the sound is coming in
only one ear. A consumer thus must compensate for the ambient noise
coming in the other ear. In order for a consumer to hear the
conversation in the Bluetooth over the ambient noise, the consumer must
increase the volume. Our clients have advised that the Bluetooth
Headset has become entirely worthless ever since they learned about the
hearing risk and stopped increasing the volume, as they no longer can
hear the conversation in which they are trying to engage.
In sum, these are misrepresentation/warranty cases, and do not
concern damages for bodily injury. The manufacturers advise that the
product can be used for an extended time period when, in fact, it cannot
be used without safety issues. Because the representation was made on
the packaging, reliance is presumable. When safety is at issue,
presumable reliance is all the more appropriate. Consumers on the whole
expect that the products they purchase will not cause them bodily harm
if used as expected by the manufacturer. Damages constitute the
purchase price paid. Because use of the product is greatly minimized
(i.e., it becomes unusable in any environment with ambient noise) unless
the volume is turned up, the product is not worth the amount paid. All
of the named plaintiffs stopped using the product entirely when they
learned of the issue because: 1) they had no way to determine the
decibel levels being emitted; and 2) if they kept the volume turned
down, they could not hear over the ambient noise.
 The problem with the Bluetooth headset is not necessarily
comparable to the problem with all headsets. First of all, most other
headsets go over both ears, so the ambient noise issue does not exist.
Secondly, with respect to any headset attached by wires, the volume
control is usually on the machine producing the noise and not the
headset. Bluetooth Headsets are unique, therefore, both because they
have their own volume control and because they only cover one ear.
Please consider the following article published January 2006:
Headset Demand Soars As Bluetooth Pushes Biz
By Penny Gill -- TWICE, 1/5/2006
As ubiquitous as cellphones have become, mobile headsets may not be far
behind - a growing spate of hands-free laws coupled with advances in
technology and style provide a host of compelling reasons for consumers
to purchase a new headset in 2006. Manufacturers will be rolling out a
wide variety of new mobile headset models at International CES this week
and beyond, offering the latest technology for clear communications as
well as sleek and trendy styling for the fashion-conscious wearer.
Bluetooth continues to make dramatic inroads into the market for
headsets, with growth predicted to be as high as 80 percent to 100
percent, as companies expand their assortment with new wireless
products. At the same time, an expanding number of manufacturers is
addressing the convergence of communications with entertainment in
mobile devices and creating headsets that do double-duty as cellphone
conversation devices and stereo headphones for listening to MP3 music.
In total, it makes for a bright outlook for the headset category, with
unanimous forecasts for a year of excellent sales increases.
"Mobile headsets will continue to grow during the first half of 2006 at
a double-digit pace, and with relatively low penetration rates, they
will grow faster than other segments of cellular accessories," said Paul
Perryman, national sales manager for San Diego-based Sanyo Energy, which
offers headsets under the GE/Sanyo brand. That growth is due to
hands-free legislation and Bluetooth," Perryman adds. "When the recent
hands-free law passed in Connecticut, for example, we experienced a
10-times lift and a higher baseline in headset sales in that state. As
more states and towns pass such laws, we expect similar results."
Perryman also finds that Bluetooth has "reached critical mass," with
more than 12 percent of phones sold in 2005 being Bluetooth-enabled - a
number that should double in 2006 as prices continue to drop. To address
that market, GE/Sanyo is debuting a new headset using the latest
Bluetooth 1.2 technology to combine one of the longest talk times with
crisp audio quality. The C-style ear hook with integrated nickel
metal-hydride battery is designed for comfort, and redialing and voice
dialing can be activated directly from the headset. Talk time for the
new GE/Sanyo model is up to 12 hours, with standby time of up to 200
hours. Available in first quarter, the headset has a suggested retail of
$79.99. The company also is introducing a Bluetooth portable
speakerphone - a multipurpose, wireless device that can be used in home or office or installed in a car in less than 10 seconds. It uses
advanced 16-bit full duplex DSP sound processing with echo cancellation
and a noise-canceling microphone, and offers auto-answering, voice dial
and redial. It will ship first quarter at a suggested $179.99 retail.
Jabra also anticipates a stellar year in 2006 for Bluetooth, citing IMS
research numbers that the global market for Bluetooth-enabled handsets
is expected to nearly double its 2005 level of some 143 million units.
Bluetooth headsets are expected to more than double on a global basis
from a total of 32 million in 2005 - itself an increase of 127 percent
over 2004. "This is a tremendously fast-growing market," said Dave
Hogan, global sales and marketing senior VP for the Oak Brook,
Ill-headquartered Jabra. "It's becoming so big we've been segmenting the
market, not only by price point but by feature-benefit set. Our line now
crosses all demographics and wearing styles, and ranges from $59 for an
entry-level Bluetooth headset up to $179 at the top of the line."
Please also consider the following article published in June 2006:
Bluetooth Headsets Are the Largest Accessory Market for Mobile Devices,
Says Strategy Analytics
Strategy Analytics - June 22, 2006
Global Bluetooth headset sales almost tripled, to 33 million units in
2005, according to Strategy Analytics. The analysts forecast total
wholesale revenues of US$2 billion in 2007, making Bluetooth headsets
the world's largest accessory market for mobile devices. Motorola,
Jabra, and Plantronics were the world's big three Bluetooth headset
vendors, taking a combined 57 percent share of total global sales in
2005. Motorola was the top-ranked vendor with a 28.2 percent share of
Bluetooth headset shipments in 2005. Second-ranked Jabra had a 16.3%
share of shipments, followed by Plantronics at 12.3%, according to the
market analysis. Neil Mawston, Associate Director at Strategy Analytics
said, "Global Bluetooth headset sales grew at a skyrocketing 153 percent
in 2005. High levels of user interest have finally evolved into strong
demand, driven by falling prices. Motorola stands out as the clear
number one, with a healthy 28 percent share, due to a portfolio of cool
designs supported by aggressive marketing activities."
Chris Ambrosio, Director at Strategy Analytics, added, "Bluetooth sales
to-date have been dominated by mono headsets for mobile voice. Looking
forward, future revenue growth will increasingly be driven by the need
for stereo headsets in mobile music and rich media, like TV. However,
with average retail pricing in excess of US$100 today, stereo Bluetooth
headset prices will need to fall by more than 50 percent in order to hit
the mass-market sweet spot, which we find to be below US$50."
Other findings from Strategy Analytics' Bluetooth Headset Market Share
Report include:
Global Bluetooth headset sales will grow 70% annually in 2006. The A2DP
Bluetooth profile, critical for stereo music, will be found in 1 in 8 of
all Bluetooth phones sold worldwide during 2006 |
