1. If the iPod is capable of playing at a certain level of sound, isn’t it foreseeable that users would assume that a high level of sound was “ordinary” use?

2. If Apple did not provide the warning, how would that impact your analysis?

3. Do you believe that most consumers know that earbuds cause more hearing loss than earphones? Should the court have considered the knowledge of the “average” consumer? 

Apple’s iPod comes with a set of earbud headphones that are detachable from the iPod unit. The iPod also may be used to play music through different headphones or through various speaker systems. Apple includes the following warning with each iPod: 

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.

Birdsong sought to bring a class action suit against Apple, alleging that the iPod is capable of producing 115 decibels, and the class members were iPod owners who had allegedly suffered hearing loss using the iPod earbuds set at the highest decibel level. Birdsong’s theory of liability (among other claims) was based on Apple’s breach of implied warranty of merchantability. The trial court dismissed Birdsong’s suit, and he appealed. 

The Court of Appeals for the Ninth Circuit upheld the decision in favor of Apple. The court rejected Birdsong’s theory that the iPod was not merchant-able because it comes with stock earbuds that are designed to be placed deep into the ear canal rather than over the ears, which increases the danger of hearing damage. The court pointed out that the ordinary use of the iPod was to listen to music and that the product was fit for that use. There was no allegation of malfunction, and Birdsong did not allege that the iPods failed to do anything they were designed to do, nor did he allege that he had suffered or is substantially certain to suffer inevitable hearing loss or other injury directly from iPod use. 

“The plaintiffs admit that the iPod has an ‘ordinary purpose of listening to music,’ and nothing they allege suggests iPods are unsafe for that use or defective. The plaintiffs recognize that iPods play music, have an adjustable volume, and transmit sound through earbuds. The [complaint] includes statements that (1) the iPod is capable of playing 115 decibels of sound; (2) consumers may listen at unsafe levels; and (3) iPod batteries can last 12 to 14 hours and are rechargeable, giving users the opportunity to listen for long periods of time. Taken as true, such statements suggest only that users have the option of using an iPod in a risky manner, not that the product lacks any minimum level of quality.”