Video-game giant Nintendo defends actions on seizures
By ANGELA SIMONEAUX
asimoneaux@theadvocate.com
Acadiana bureau
LAFAYETTE -- Ten days of testimony were completed Thursday in federal court in the case of a St. Martin Parish family who claims Nintendo of America failed to follow consumer protection rules.
Some people who are sensitive to certain patterns or qualities of light can suffer a seizure if exposed to those patterns or qualities, according to latest testimony in the final portion of a two-part trial. And some video games may have contained those patterns or qualities of light.
The family of St. Martinville Mayor Eric Martin and his son, Michael, claims the video game giant failed to report that its games contain defects that presented a "substantial hazard" and create an unreasonable risk of serious injury or death.
The two-part trial began in July, with both the federal reporting issue and a personal injury claim. The Martins, represented by a team of attorneys led by Richard C. Trahant of Metairie, claimed Michael suffered a seizure from playing the games.
After three days of testimony before a jury, the parties reached an undisclosed settlement on the personal injury claim. Trial was halted and the jury dismissed.
Nintendo is represented by a team of attorneys led by Michael B. North of New Orleans.
At issue now is what Nintendo knew about a possible connection between seizures and video games and whether Nintendo's years of package warnings, self-imposed game-creation guidelines and correspondence with the U.S. Consumer Product Safety Commission were adequate under federal law.
Nintendo claims it has done its own research, funded independent research, set up guidelines designed to reduce the possibility of seizures in photosensitive people, answered all communications from the commission and kept close track of consumer complaints in an attempt to ensure their products were not harmful.
The trial on the federal reporting issue resumed last month, and the latest round of testimony was completed Thursday.
One witness, a physician who is an expert in epilepsy, will give additional testimony later this month. After his testimony is complete, the trial will officially be over.
Presiding U.S. District Judge Richard Haik said he will give the attorneys 45 days after the trial transcript is complete to file their arguments about the evidence and the law. Then he will rule.
During the trial, much testimony centered around what Nintendo knew and what it did with that knowledge.
One of the main witnesses was Richard Flamm, the company's general counsel.
Flamm testified that the product safety commission was aware of seizures experienced during or after video game play as early as 1989 but never opened an official case about the connection.
Even if that had not been true, Flamm testified he believes Nintendo did not have to report anything to the commission because the games did not contain a defect that caused any injury to anyone.
"We had no reporting requirements regardless of whether they were informed or not," Flamm testified under cross examination.
According to Flamm's testimony and that of other Nintendo officials, the company received fewer than 2,000 complaints of incidents that might have indicated a possible seizure, compared to the sale of millions of games.
For example, the company sold 1.5 million copies of the game Star Wars Episode I and had no complaints of seizure-related incidents. The company sold more than 1 million copies of the game Yoshi's Story and had only one seizure-related complaint, he testified.
Flamm said he has learned, by reviewing studies on the connections between video games and seizures, that generally it is only people who have an existing neurological condition who have seizures after playing some games.
"Video games don't cause epilepsy or seizures. They are caused by a pre-existing neurological condition," Flamm testified.
Generally those people are "photosensitive," meaning they are sensitive to the intensity of light and/or the flashing or flickering of light, he testified.
Studies have shown that other things that can trigger seizures in these people include venetian blinds, striped walls, stairs, striped clothing, reflected light, helicopter blades, malfunctioning fluorescent lights, strobe lights and the light from a welder's torch, he testified.
Nintendo placed warnings in its products about the possibility of video games triggering seizures in photosensitive people, Flamm testified.
He also testified that Nintendo donated funds to the Japanese Epilepsy Association to help fund research into the connection.
Using the findings of these studies and others, Flamm testified, Nintendo instituted some recommendations for its game designers that the company hoped might decrease the seizure triggers.
Among these recommendations were a limit on the number of times per second a light can flash, and a limit on the brightness of certain lights and their duration on the screen, he testified.
Since those recommendations have been instituted, the number of seizures reported to the company by consumers has dropped from 22 in 1999 to six in 2003.
The company also hired an epilepsy expert who reviewed all the research available, and Nintendo's response to it, to make sure the company was doing what it should, Flamm testified.
"He looked at all the studies and then wrote his paper. After reading it, I felt very comfortable that we did understand the literature and the factors involved, and that the steps we were taking were appropriate," Flamm testified.
The Martin family maintains that Nintendo should have reported that its video games were not safe and not suitable for use because they triggered seizures.
They want Haik to order Nintendo to put warnings about the possibility of video games triggering seizures on the video game packages and on the screen while the game is in use, court documents indicate.
They want Nintendo to rank all games according to the seizure risk, reformat all its games to reduce the chance of seizures, fund a nationwide advertising campaign to inform the public about the chance of seizures, allow all game owners to trade high seizure risk games in for low seizure risk games and to establish a refund program so everyone with Nintendo games can get their money back, court documents indicate.
The family also wants money for damages, court costs, attorney fees and expert fees.
