As early as 1991, Nintendo of America (www.nintendo.com), one of the world's
largest producers of video games, became aware that playing such games may
trigger seizures. In that year, the company's corporate counsel
authored warnings to be included in video game instruction booklets.
Today, similar language can be found on video game rental boxes and game
company websites (www.nintendo.com/consumer/gcn_precautions_english.html).
The adequacy of these warnings will soon be scrutinized in federal and state
courts. Two lawsuits were filed last year in the United States District
Court for the Eastern District of Louisiana: Benoit v. Nintendo of America,
Inc. and Martin v. Nintendo of America, Inc. In both suits, the
plaintiffs allege that their minor children suffered epileptic seizures as a
result of playing Nintendo video games. Last month, the district court
hearing Benoit denied the plaintiff's motion to stay the proceedings pending
decision on class certification for a Lousiana personal injury class in the
Martin case. The court explained that no schedule had been set for
Martin and that the plaintiff in that case was also trying to obtain class
certification for a national consumer class. If these cases go forward,
Nintendo could find itself in an uncomfortable situation, thanks to a recent
decision of the Louisiana Court of Appeal.
In Roccaforte v. Nintendo of America, Inc., Nintendo actually stipulated
that a Nintendo video game had caused the plaintiff's seizures.
However, the jury returned a verdict for Nintendo, finding that although the
company did not provide adequate warnings of the safety risk, the video game
products were not unreasonably dangerous in design and that the failure to
provide an adequate warning was not the proximate cause of the plaintiff's
seizures.
Unfortunately for Nintendo, the Louisiana Court of Appeal for the Fifth
Circuit held in November of last year that the company's numerous discovery
abuses during the Roccaforte trial required that the verdict be vacated and
the case remanded for a new trial. The district court sanctioned
Nintendo for questionable oversights twice during the trial. In the
first instance, Nintendo, without court approval, redacted the contact
information of consumers who complained of video game related seizures from
documents requested by the plaintiff. On the second occasion, Nintendo
failed to turn over hundreds of pages of documents which proved that not
only was Nintendo aware of the problem of video game induced seizures, but
also that the company knew which games were more likely to cause such
seizures. The information was finally given to the plaintiff on the
third day of the trial. It was only at this point that Nintendo
stipulated that the video game had caused the plaintiff's seizures.
The appeals court held that in light of these discovery abuses
"the interests of justice would best be served by vacating the verdict and
remanding the matter for a new trial, where the evidence not previously
available to plaintiffs may best be presented for consideration by a trier
of fact."
This appellate decision raises two problems for Nintendo. The
first is the possibility that with this new evidence the company may lose in
a new trial. Secondly, and perhaps more importantly, such evidence will
become a powerful tool in the hands of the attorneys in the pending Benoit
and Martin lawsuits. If the plaintiff in Martin is able to obtain class
certification for a national consumer class, Nintendo will likely face a
very nasty and expensive legal challenge. Without a doubt, these cases will
be closely followed by video game insiders, as the outcomes will likely have
a lasting impact upon this $9 billion per year industry.
(http://cyberatlas.internet.com/big_picture/applications/article/0,,1301_973421,00.html).
