Attorney Soliciting Video Game Seizure Cases

November 3, 2009 -

A Syracuse attorney is taking on the case of a four-year-old boy who had a seizure while watching his brother play a video game on his PS2.

The attorney, Michael P. Kenny, has taken Sony and Vivendi to court over the video game Spyro: Enter the Dragonfly because of certain "seizure triggers" in the game, which was released in 2002. The case was filed in 2007, but is just entering the discovery phase.

Kenny, who has set up a site with information about video game induced seizures, is also soliciting more people to come forward in the apparent hopes of setting up a class action suit.

According to the news release from Kenny:

"The video game companies know there is a problem, and they choose not to fix it. The video games seizures have a cause, and the manufacturers choose not to correct it." Kenny asserts that the video game manufacturers knowingly place their financial gain ahead of people's health. He added, "Without federal legislation to compel the video game companies to take action, we have no choice but to litigate on behalf of the victims."

The release also points out that using a Cambridge professor's device known as the Harding Flash and Pattern Analyzer could help prevent photosensitive epileptic seizures:

The Harding Flash and Pattern Analyzer has used by television broadcasters in the UK to identify seizure-inducing light movement, and Kenny uses the device to analyze video games. He noted that the federal government limits the number of flashes per second from the strobe warning lights in its facilities. "The government is willing to take basic steps to protect people in federal buildings," Kenny said, but "video game manufacturers have not taken the same steps to protect our children at play."

Legitimate concern or another lawyer captilizing on the ills of video games?

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Comments

Re: Attorney Soliciting Video Game Seizure Cases

He is just doing his job, taking money where he can and as fast as he can. Even if he looses a cause the poor bastard that contracted him WILL HAVE TO PAY HIS HONORARIES. So for the lawyer it is a win <-> win situation.

 

Re: Attorney Soliciting Video Game Seizure Cases

I'm so sick of the McDonald's coffee argument.

The case held up because:

1) McDonald's coffee was too damn hot.

2) McDonald's coffee had been too damn hot for a long time.

3) McDonald's coffee had been too damn hot for so long that they had been thoroughly warned that it was too damn hot.  (Documents obtained from McDonald's showed that from 1982 to 1992 the company had received more than 700 reports of people burned by McDonald's coffee to varying degrees of severity, and had settled claims arising from scalding injuries for more than $500,000.)

4) Despite #s 1-3, McDonalds continued selling coffee while it was too damn hot.

Nothing being served at a restaurant should cause 3rd degree burns in under 12 seconds.  Additionally, the woman initially wanted McDonalds to cover her medical bills.  They refused.  She got a lawyer.

Now, please don't get me wrong.  You shouldn't try to hold a cup full of a liquid that's too damn hot between your legs, but this figured into the settlement as the jury found her "partially" responsible for her injuries.

Re: Attorney Soliciting Video Game Seizure Cases

The question is: why would McDonalds continue to make coffee that freaking hot? There must have been a reason, because what money were they saving by letting people get burned by it? Not to mention the amount of money wasted on electricity to keep the coffee a few degrees warmer. I don't see WHY they would have the coffee that hot, unless they were doing it to suit customer demand. Many people don't drink coffee right when they get it (from the drive through), they'll wait till they get home to drink it, where it will be the perfect temperature. Even that doesn't seem that plausible though, as it doesn't seem like they'd make that much more money from having hotter coffee. I'm just wondering what McDonald's line of thinking was.

Do you know how much the settlement was for? If it's more than court costs and maybe $10,000 (plus lost work days) in damages, I'd say it was unfair. But $10,000 in damages isn't too extreme, that I can side with. The cases where a person gets hundreds of thousands, even millions, in damages though...yeah right.

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

Re: Attorney Soliciting Video Game Seizure Cases

The coffee was served at 88 C (190 F). To make and serve coffee as fast as possible, they had to serve it while still nearly boiling. The victim was paid $160,000 in compensatory damages for her 2 years spent in hospital to recover, and another $480,000 in punitive damage.

 

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Re: Attorney Soliciting Video Game Seizure Cases

Nintendo uses the Harding Test for 1st party certification I believe.

Sony sometimes checks it, but I know MS doesn't care.

 

 

Maybe epileptics shouldn't be playing video games just as quadraplegics shouldn't be snowboarding...

 

 

 

"You know what I wish? I wish all the scum of the Earth had one throat and I had my hands about it."

"You know what I wish? I wish all the scum of the Earth had one throat and I had my hands about it."

Re: Attorney Soliciting Video Game Seizure Cases

There's a content warning on the game of the box that specifically tells the gamer about certain scenes that could induce a seizure. That is the parent's fault for not looking. BUT, if the parent(s) didn't know the son would have seizures, then that is diff. Also if the parent(s) didn't care about it, then the parent(s) should be held accountable.

"It's better to be hated for who you are, then be loved for who you are not." - Montgomery Gentry

Re: Attorney Soliciting Video Game Seizure Cases

Lessie here, I actually have the game here, AH! here we go, Spyro: Enter the Dragonfly (aka a poor rendition of the spyro franchise)

In the manual, on the inside cover, with an indigo background and white text, the first thing written:

 

WARNING: READ BEFORE USING YOUR PLAYSTATION®2 COMPUTER ENTERTAINMENT SYSTEM.

A very small percentage of induviduals may experience epileptic seizures when exposed to certain light patterns or flashing lights. Exposure to certain patterns or backgrounds on a television screen or while playing video games, including games played on the Playstation 2 console, may induce epileptic seizure in these induviduals. Certain conditions may induce previously undetected epileptic symptoms even in persons who have no history of prior seizures or epilepsy. If you, or anyone in your family, has an epileptic condition, consult your physician prior to playing. If you experience any of the following symptoms while playing a video game - dizziness, altered vision, eye or muscle twitches, loss of awareness, disorientation, any involuntary movement, or convulsions - IMMEDIATELY discontinue use and consult your physician before resuming play.

 

This warning, with the exception of the console name, is exactly the same in even earlier games in the series and in every game I have, in the same spot. So it's a case of ignoring the blatant signs, ignoring the preliminary symptoms, and when a full blown seizure hits, try and blame someone else.

Re: Attorney Soliciting Video Game Seizure Cases

"The video game companies know there is a problem, and they choose not to fix it."

So the evil video game industry is "choosing" not to cure photosensitive epilepsy. Maybe that's because they're the video game industry and not anything to do with medicinal/healthcare research.

Flashing lights in various unpredictable forms may trigger an epileptic fit in some people. It is not the game's fault if this happens to you. Nor, if you didn't know you were susceptible, is it your fault. It's a cause-and-effect that simply cannot be predicted.

On the face of it (and that's where this appears to be coming from) it's like saying the tobacco industry is causing people to contract lung cancer, the fast food industry is causing people to contract diabetes. If you dig even slightly below the surface then it's clear that it Very Very Isn't.

 

Re: Attorney Soliciting Video Game Seizure Cases

My sister actually had a seizure from playing a video game back in the day. She was playing some fighting game on a PS1 at a Best Buy demo station. Honestly, there was no way that she, Best Buy, the game company or Sony could have known that something like that would happen specifically to her. No one was aware that she would have seizure due to photosensitivity. Granted, yes it was always a possibility, but it's kind of a risk in everyday life.

Like chada said in the peanut analogy, those are your options, and my sister chose option A.

Re: Attorney Soliciting Video Game Seizure Cases

You can not create 100% of entertainment to be suitable for 100% of people. Any attempt to do this will result in 100% chance of failure.

 

Now go cry in your corner about life not being fair....

~Weatherlight~

~Weatherlight~

Re: Attorney Soliciting Video Game Seizure Cases

This guy's being a JT style asshole, plain and simple.

Re: Attorney Soliciting Video Game Seizure Cases

Dude, if this goes class-action, I'm so having a rave in the main court-room lobby. Strobe lights for everyone!

Re: Attorney Soliciting Video Game Seizure Cases

sorry but if this kid had a known history of photo sensitive seizures or epilepsy, then not only should the video game manufacturers not be blamed, but Child protective services needs to be opening a case file on mom and dad. bad parenting at its finest. If the kid is diabetic and mom buys and feeds him soda with sugar, whoose fault is that? Exactly!

The child suffers from a medical condition whereby certain events in his environment may trigger a medical event. There are tons of conditions similar to this. Diabetes, allergies, lots of others. It is not society or a comercial vendors role to be the watchdog of personal behavior for these sorts of things. I don't sue Planters because I am allergic to peanuts, I simply do not eat peanuts. I do not sue coke because I am a diabetic. Instead I or those careing for me know to not eat sugar. This is not a complicated process.

Re: Attorney Soliciting Video Game Seizure Cases

In many cases, it could be argued that the flashes are caused by player action, firing a gun, collecting a prize etc, if someone uses a strobe light in front of an epileptic and they have a seizure, is it the fault of the company that made the strobe light?

My wife has photosensitive epilepsy, and if something is flashing at an uncomfortable speed, do you know what she does? She tells me 'That's too much flashing lights', and I either stop the game, or she offers to go do something in another room, you cannot bend the world around the sensitivities of others, there has to be a certain degree of common sense on the consumer side as well, and as for trying to get together a profit making scheme to attack the fact that some things can cause epilepsy...well... no prizes for guessing what his motivation is, and you can be certain it's nothing to do with the medical health of the 'victims'

Re: Attorney Soliciting Video Game Seizure Cases

Heh, he sounds exactliky like he-who-is-no-longer-now-ever-will-be-employed but with a different argument.

Re: Attorney Soliciting Video Game Seizure Cases

Hah, I just realized the perfect analogy for this. I posted it above in response to nighstalker160, but I'll repeat it here.

Consider this: You are allergic to peanuts. You have never tried nuts before, so you never knew if you were or not, it just happens that you unknowingly are. Or, hell, maybe you JUST developed allergies for peanuts within the past week (like photo-sensitive epilepsy, allergies can sprout up anywhere, at anytime, to anyone), and you didn't know that you're newly allergic to peanuts. You buy a Snickers bar, of course knowing that it has nuts in it (much like how every game box and game manual is plastered with seizure warnings), and take a bite. Your allergic reaction kicks in, and you have to be taken to the hospital.

Here, you have several options:

a) Stop eating nuts and go on with your life.

b) Forget about your allergies and eat another Snickers bar, and then die.

c) Blame the company that made the snickers bar, claiming that they should have done more to reduce the amount of nut inside the bar, claiming that the company is being irresponsible, sue said company, and ask the government to rid the world of peanuts just because YOU are allergic to them.

If you picked option c, then congratulations, your name is probably Michael P. Kenny.

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

Re: Attorney Soliciting Video Game Seizure Cases

Michael P Kenny went for option D.

1. Find person who had epileptic reaction to gaming.

2. Offer to represent that person, and anyone else he can string along with his flim-flam in a class-action suit.

3. ???

4. Profit.

--------------------------------------------------

I LIKE the fence. I get 2 groups to laugh at then.

-------------------------------------------------- I LIKE the fence. I get 2 groups to laugh at then.

Re: Attorney Soliciting Video Game Seizure Cases

Bleh. I sure hope he doesn't profit from this. Granted, it isn't even in my country, but I hate seeing such a slippery slope. It's bad enough that in the US someone sued McDonalds and WON because the coffee was "too hot," and they spilt some on themselves. Now their coffee is monitored to be at a lower temperature, totally undermining anyone that WANTS their coffee to be that hot.

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

Re: Attorney Soliciting Video Game Seizure Cases

This again? Seriously?


The issue was that the coffee WAS too damn hot. It was so hot that it melted flesh on impact. The issue being that food should never be at a temperature where it is physically impossible to consume it unless you are currently cooking it. Coffee does not have this. The McDonald's line was that most people did not drink their coffee from the drive through right away. But the people ARE wanting to buy something that is ready to drink right then and there and won't cause them severe physical trauma if they spill it on themselves.

 

It's like this. If I open up a business selling trained guard dogs, put up signs saying "get your trained guard dogs here right now," and you come to me to buy one, then you are probably expecting a TRAINED GUARD DOG. I can't just hand you a puppy who has had some training and say "Oh most of our customers like to finish off their training at home in the environment that the dog will be working in." That's a total cop-out when what I offered has A) not at all been that which I advertised and B) what I am offering has the potential to put you in serious jeapardy.

Re: Attorney Soliciting Video Game Seizure Cases

I think it would be more akin to giving you a guard dog that is sedated, so you have to wait until you get home for hiim to be useful. As for the coffee, come on, everyone takes a sip to see how hot it is, if it's too damn hot then a reasonable person would just wait until it cooled down. And this person accidently spilled it on him/herself. I still don't think it should've held in court, it seems like a sign of a sue-happy America.

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

Re: Attorney Soliciting Video Game Seizure Cases

While there might be some real concerns about seizures lets not forget that even turning on the lights in your home can cause the attack.

http://www.magicinkgaming.com/

Re: Attorney Soliciting Video Game Seizure Cases

Let me just grab a game from my collection...ah yes, Bioshock. Hm...it looks like there isn't anything about seizures on the front! Gasp!

But wait...let's flip it over. Right along the bottom, half of the box wide and a centimeter thick, is a warning. Boldly colored, contrasting greatly with the black coloring in the background, impossible to miss. It says, "WARNING" in black letters with orange background, with a yellow warning triangle with an exclamation point inside of it right next to WARNING. Then, it says, "Read instruction manual for information about photosensitive seizures and other important safety and health information."

Huh. Let's open up the box and pull out the manual then...Flip it open...and the entire first page is one giant warning. It says, and I quote, "A very small percentage of people may experience a seizure when exposed to certain visual images, including flashing lights or patterns that may appear in video games." And then goes on to describe symptoms, and what to do if any symptoms arise. It even says at the bottom, "If you or any of your relatives have a history of seizures or epilepsy, consult a doctor before playing."

Seems to me like the gaming industry covered all of their bases. Perhaps the parents just weren't covering theirs.

Oh, and to sample the lawyer's piece, "The Harding Flash and Pattern Analyzer has used by television broadcasters in the UK to identify seizure-inducing light movement, and Kenny uses the device to analyze video games. He noted that the federal government limits the number of flashes per second from the strobe warning lights in its facilities. "The government is willing to take basic steps to protect people in federal buildings," Kenny said, but "video game manufacturers have not taken the same steps to protect our children at play."

Excuse me, Mr. Lawter, but that is why the warning is there. We don't need the government to regulate how many flashes-per-second we see onscreen, if a game is deemed too damaging to our health then we simply stop playing it. I seriously doubt that video game developers sit in a closed, smoke-filled back room devising ways to give gamers seizures, it's just that the amount of action in a good video game, coupled with the occassional glitch that makes lots of pretty/hectic colors, makes for lots of movement, lots of flashes. So slap a warning on it and leave it at that, it isn't Sony's fault if your kid has a seizure, the kid could get the seizure from any number of things. Fuck, most people with epilepsy don't even have photo-sensitive epilepsy, they seizure from other causes unrelated to lights/sounds. Just be a good parent, and if you see warning signs, get it checked out. The doctor will recommend whether or not you/your kid should be playing video games, or will set guidelines on how long you should play them for (game manuals say to take a break every hour or so anyways).

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

Re: Attorney Soliciting Video Game Seizure Cases

two words to describe this article, Bull [Explictive]

Watching JT on GP is just like watching an episode of Jerry springer only as funny as the fights

America has just became its own version of the Jerry Springer Show after a bizarre moment in Florida involving a carnival worker.

Re: Attorney Soliciting Video Game Seizure Cases

It'll be a very tall order to get this through... if it does... well, doesn't that mean, any, and all sale of video games will cease? A Industry implodes? Economys die?

Re: Attorney Soliciting Video Game Seizure Cases

Outside money, he seems to be pushing for video games to be validated through some kind of device that tests video for the relavent effect.

I wonder if he (or a buddy) gets a cut from that device.

Re: Attorney Soliciting Video Game Seizure Cases

He's a parasitic lawyer, he only cares about stuffing his pockets by whipping up some fear-mongering.

--------------------------------------------------

I LIKE the fence. I get 2 groups to laugh at then.

-------------------------------------------------- I LIKE the fence. I get 2 groups to laugh at then.

Re: Attorney Soliciting Video Game Seizure Cases

"The video game companies know there is a problem, and they choose not to fix it. The video games seizures have a cause, and the manufacturers choose not to correct it." Kenny asserts that the video game manufacturers knowingly place their financial gain ahead of people's health. He added, "Without federal legislation to compel the video game companies to take action, we have no choice but to litigate on behalf of the victims."

so... his evidence that video game companies havent changed their policies is a game from 7 years ago? Not that it matters with disclaimers on every package. They won't get a dime from any game company, prompt for a new law to be made maybe.

Re: Attorney Soliciting Video Game Seizure Cases

That's why the manuals and the boxes prominently feature a nice label that says "Photosensitive persons may not want to play this game". Everyone learned that lesson the hard way after the infamous episode of Pokemon which caused a significant portion of Tokyo's children to suffer seizures at once.

I actually saw a guy have a seizure at a LAN party for Unreal Tournament at Wizards of the Coast back in 2001. Everyone who came in there were warned that if they are Photosenstive, they may not want to risk playing. The guy played irregardless and suffered a seizure while being shot at by a Plasma rifle (which causes extremely bright flashes of white).

This case is crap. If the person has a prior history of seizure's as well which will be revealed in discovery, well... Open and shut.

----
Papa Midnight
http://www.thesupersoldiers.com

----
Papa Midnight

Re: Attorney Soliciting Video Game Seizure Cases

The first thing to note is that merely having a warning on a product does not necessarily insulate you from liability. Those disclaimers are there more to discourage people from filing litigation on the assumption the company is protected. In cases of purposeful wrongdoing, recklessness or gross negligence those disclaimers are often completely discounted by courts.

Still though, to win on this, this guy would have to show:

1. That the game in fact caused the seizure (which could be tought unless there's medical documentation to that effect)

2. That the video game companies were aware of a significant potential for seizures (1% is generally considered enough though)

3. That the video game companies deliberately, recklessly, or through gross negligence, failed to take corrective action.

In other words...tall order.

Re: Attorney Soliciting Video Game Seizure Cases

What kinds of "corrective action" could a game company do though? There's always the possibility of a glitch happening that causes the camera to wig out, and a game will never cause a person to develop photo-sensitive epilepsy (which is a very small amount of epileptics anyways), why should a gaming company dim their game just because somebody MIGHT have a seizure?

This case is similar to suing a car company because someone's PDST caused them to crash their car. There isn't much that a company could reasonably do, responsibility rests on the consumer to be careful when using a machine that has the potential to cause damage. That'd be like suing Mars Bars for getting sick from a previously-unknown allergic reaction to peanuts after eating a Snickers bar. Mars Bars shouldn't be expected to take out peanuts, and if a person dies from the allergic reaction, it should be considered a fluke, something unavoidable, and having nothing to do with Mars Bars (as it has a warning stating that it has peanuts).

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

Re: Attorney Soliciting Video Game Seizure Cases

If we are to believe this guy and other "activists", the games industry is run by folks even more evil and nefarious than the tobacco industry. 

I don't doubt that people sensitive to seizure may have issues with games, but whenever you have lawyers coming out with accusations of intentional action and looking to make big $$...it loses a lot of sympathy I have. 

I get motion sickness from certain games.  Should I get a lawyer?

Re: Attorney Soliciting Video Game Seizure Cases

Every Sega game I booted on the Megadrive gave this warning. That nevber changed. Seriously. Fucking idiots.

Re: Attorney Soliciting Video Game Seizure Cases

Correct me if i'm wrong, but hasn't there been warnings inserted on the box, inside the instruction manual, and recently, the first thing one sees when consoles are turned on, for EVERY game released for the better part of the last DECADE?

He's behind the times. This isn't going to go anywhere.

Re: Attorney Soliciting Video Game Seizure Cases

I remember the "Nintendo killed my son" story, more than 15 years ago. This cover by The Sun triggered a moral panic quite intense in 1993. As a result, in France, there are red warning directly on the cover of the game boxes, plus one or two pages on each manual.

As far as I know, it was the first videogame-related moral panic that sparked in my country, except, perhaps, the "neo-nazi video games". Anyway, both of them established this medium's bad reputation for years to come. Only to be aggravated by violence- and addiction-related issues.

Oh, and recently, we had heard a story about a british mom whose son had such a seizure. It was coverd by GP a couple of times.

Re: Attorney Soliciting Video Game Seizure Cases

I see photosensitive seizure warnings on games all the time and, honestly, aside from the warnings and taking a few basic precautions on how things are displayed, game developers really can't do much else to eliminate the risk because they can't control what the end user might do.

Re: Attorney Soliciting Video Game Seizure Cases

 Thats the key there, no control over what a user might do.

There might be a static light in the game that a user sees through a number of columns, and they just happen to make their character run by those columns at the correct speed so the light flashes on their screen in the right way, or they are toggling cover (gears of war for example) near a light source and do it in just the right way to set off the seizure.

The end user has full control over timing and their relation to light sources in the game, there is NO way for them to fully control light blinking with current tech.  The closest they can do is check the pattern/frequency of direct view of a light source, but that would probably suck up memory/processor cycles a fair amount, and it wouldn't govern indirect lighting issues.

Re: Attorney Soliciting Video Game Seizure Cases

Isn't he about 20 years behind the times with his hope to make an issue of this?

Seriously, they have warned about the possibility of epileptic seizures in game manuals since at least the NES/Master System days, if not before even then.

--------------------------------------------------

I LIKE the fence. I get 2 groups to laugh at then.

-------------------------------------------------- I LIKE the fence. I get 2 groups to laugh at then.

Re: Attorney Soliciting Video Game Seizure Cases

Was the whole "Warning: Games may cause epiletic seizure, play in a well lit room *blah blah blah*" A whole industry thing or was that only a nintendo thing? Because I think every manual of the game has that warning.

Re: Attorney Soliciting Video Game Seizure Cases

Pretty much every game i've bothered to look at the manual says something about the small possibility of seizures while playing.  Doesn't that proper warning protect them from lawsuits over it?

Re: Attorney Soliciting Video Game Seizure Cases

It's also on all video game cases this generation.  The DS and Wii also have an on-screen warning when you turn those systems on.

 

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