Photosensitive epilepsy in the 2016 electionPosted: 10/18/2016 Filed under: Legal Action, Media Coverage, Protective Lenses | Tags: flash, flicker, photosensitive epilepsy, seizures Leave a comment
In recent weeks photosensitive epilepsy received some media attention because of two developments in the 2016 presidential campaign. Who would have thought? While the public probably didn’t learn much about photosensitive seizures in either case, perhaps both situations contributed something to public awareness of seizures triggered by certain lighting effects and images…
Clinton’s blue sunglasses
After Hillary Clinton’s widely publicized medical emergency on September 11, various bloggers and political writers rushed to speculate about possible causes of the episode. Photos of Clinton taken that day showed her wearing sunglasses that appeared dark blue, and some people wondered whether the glasses provided a clue to an undisclosed medical condition.
Visits to this blog surged for several days. More than 95 percent of the nearly 24,000 visitors from September 11 – 13 read two of my prior posts about blue lenses that protect against visually induced seizures. A few readers questioned whether the sunglasses seen on Clinton were the type worn to prevent photosensitive seizures.
My answer was maybe yes, but probably not. Since photos of Clinton that day showed her wearing them outside during the day, they weren’t likely worn for seizure protection. Flickering light doesn’t generally trigger seizures outdoors in daylight and good weather—for flicker to occur there has to be an extreme contrast of light and darkness in rapid succession. It’s certainly possible to have photosensitive seizures triggered outside in daylight, in specific situations: sunlight reflected on a body of water, or a line of trees seen from a moving vehicle, where sunlight is broken up by trees alongside the road. But Clinton was not in those settings when wearing the glasses.
Seizure-inducing images tweeted by angry reader
In a separate election-related incident, the matter of photosensitive seizures was taken in a troubling direction. In response to articles he wrote critical of Donald Drumpf, Newsweek journalist Kurt Eichenwald received a menacing tweet from an unhappy reader that referred to Eichenwald’s epilepsy and included an embedded video of flashing images. When the video started, Eichenwald dropped his iPad before a seizure could develop.
It certainly wasn’t the first time seizure-inducing images were placed online for the purpose of triggering people with photosensitive epilepsy, but it’s the first instance I’m aware of that’s tied to this rancorous political season. Criminal defense attorney Scott Greenfield claimed in his blog that the episode qualifies as an attempted assault. “Yes, even Twitter can be used to commit an assault, regardless of whether Eichenwald was a victim,” he wrote.
For more on the legal and technology issues raised by the tweet to Eichenwald, check out this Future Tense article, in which UC Davis law professor Elizabeth Joh concludes, “…the existing tools of criminal law probably do address a tweet likely intended to harm its recipient or to create a reasonable apprehension of fear in him.” But she adds, “That doesn’t speak to the likelihood of prosecuting the troll, which may be low.”
Video gaming while driving: not a good idea!Posted: 05/18/2013 Filed under: Gamers, Health Consequences, Legal Action | Tags: computer games, flash, flicker, photosensitive epilepsy, photosensitivity, seizures, video games 1 Comment
This week a motorist in Scotland was seen—and photographed—playing the video game Real Racing on his iPad while driving on a highway at 65 miles per hour.
In this country some states have laws that prohibit texting or phoning while driving. Most people realize that using any electronic device while driving is a distraction that impairs the driver’s judgment and attention, placing him/her plus any passengers, pedestrians, and nearby drivers at risk. It’s risky and unwise, and illegal in some places, but it’s a widespread practice nonetheless.
Gaming while driving is beyond reckless. Think of it: what if, in addition to the game creating a dangerous distraction, the images trigger a seizure in the driver? Even a brief seizure of a few seconds, especially at 65 mph, could lead to tragedy.
I tested lots of “footage” of Real Racing on the flash and pattern analyzer that determines whether digital image sequences fall within safety guidelines for photosensitive epilepsy. Although this particular game tested within the safety limits for luminosity/flash rate/pattern movement, many other games don’t. Maybe this driver only drives while playing games that pass the seizure safety test…and plays the rest at home.
Scottish police have brought charges against the 20-year-old suspect. “Motoring groups and politicians have condemned his antics,” according to the Daily Record. Read more…
Lawsuits filed after games caused seizuresPosted: 04/06/2013 Filed under: Legal Action, Seizure Warnings, Video Game Companies | Tags: American Academy of Pediatrics, computer games, Nintendo, photosensitive epilepsy, photosensitivity, product liability, seizure warning, Sony, Ubisoft, video games 3 Comments
No consumer has won a product liability/personal injury case against a game manufacturer whose video game triggered seizures. Cases were either dismissed, settled, or won by the game company.
Despite their limited usefulness to consumers, seizure warning notices do seem to provide legal protection to game publishers. And juries have a hard time awarding damages to plaintiffs with a pre-existing condition, even if plaintiffs didn’t know of their photosensitive epilepsy prior to the seizure(s) triggered by a video game.
In one case Nintendo actually conceded that its game had in fact triggered seizures, but that didn’t get in the way of the company winning the case. A judge later overturned the jury’s verdict because Nintendo had withheld critical information in contempt of court.
The cases date back to 1991, but the apparent total number of cases–ten–is pretty small. One has to wonder what percentage of the seizures triggered by exposure to video games are ever identified as visually induced seizures.
One of the few consumers to reach a settlement is John Ledford of Alabama, whose settlement agreement bars John from discussing his own case. John has found another way to raise awareness of video game seizures. He has researched other cases and reached out to epilepsy organizations around the globe to raise their awareness of the continuing seizure hazard from video game images. John’s Facebook page contains most of the history I’ve assembled here:
|1991||MI||15-year old Laura Moceri had grand mal seizure while playing.||Kid Icarus (Nintendo)||Lost|
|1993||IL||Chicago boy suffered occasional seizures during many hours of game play.||Nintendo||Dismissed|
|1995||AL||John Ledford had his first ever grand mal seizure while playing game at an arcade. The seizure damaged his optic nerve and caused blindness in one eye.||King of the Monsters II (SNK Corp.)||Settled|
|1998||LA||13 year-old Joey Roccaforte had clusters of violent seizures||Mega Man X (Super Nintendo)||Jury ruled for Nintendo; judge later vacated the decision because Nintendo withheld critical information before and during trial.|
|2001||LA||Esther Walker, mother of 30-year old Benjamin Walker, who died from hitting his head on a table and sustaining internal injuries during a game-induced seizure.||Nintendo 64||Lost|
|2001||LA||11 year-old Michael Martin, son of Eric Martin, mayor of St. Martinsville, LA. Seizures that began happening during games began occurring also during sleep.||Super Mario Kart (Nintendo 64)||Settled personal injury claim; lost case advocating better warnings.|
|2001||LA||6 year –old Kynan Hebert, son of Lynette Benoit||Nintendo||Dismissed|
|2002||FL||16 year-old Dominic Zummo||Star Wars Episode I: Jedi Power Battles (LucasArts Entertainment, SONY)||Unknown|
|2007||NY||While watching his brother play a game, 4 year-old boy had a seizure causing permanent injury.||Spyro: Enter the Dragonfly (Vivendi, SONY Playstation 2)||Last available information: attorney for plaintiff was seeking other plaintiffs for class action suit|
|2011||CA||Navy F-18 pilot John Ryan McLaughlin injured in a grand mal seizure that causes permanent loss of flight status||Oblivion: The Elder Scrolls IV (Bethesda Software), Sony Playstation 3.||Still pending; no other information available.|
What constitutes product liability?
In 1997 the criteria for product manufacturer’s liability for a product that has caused harm were revised by the American Law Institute, an independent body of legal experts that drafts and publishes restatements of common law in order to clarify and simplify it. Its work is used as a resource by state lawmakers, judges, and lawyers. Every state has its own laws concerning burden of proof, the awarding of damages, and the like.
The 1997 restatement of product liability law states, “a product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design or is defective because of inadequate instructions or warnings.” These conditions are then defined separately:
- A product “contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.”
- A product “contains a design defect when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the reasonable alternative design renders the product not reasonably safe.”
- A product “is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution and the omission of the instructions or warnings renders the product not reasonably safe.”
Some game companies are apparently working to make games that do not provoke seizures, but only Ubisoft has made a public commitment. As far as I can tell, most are merely reworking their warnings.
Nintendo knew about, downplayed seizure risks: BBC reportPosted: 02/20/2013 Filed under: Legal Action, Seizure Risk, Seizure Warnings, Video Game Companies | Tags: computer games, flash, flicker, Nintendo, photosensitive epilepsy, seizures, video games 5 Comments
A BBC report on Nintendo revealed that the company knew more than 20 years ago which of its games were most likely to cause seizures–and downplayed the seizure risk to customers. A former Nintendo customer relations employee interviewed for the story said that many customers called to complain about experiencing seizures. Because he wanted to advise customers concerned about the seizure risk, he asked the company’s R & D group for a list of the games most likely to cause seizures.
Developers came up with a list of more than 30 games. Before the list was released to customers, he said, the company’s lawyers pared down the list to 12 – 15 titles. As customer complaints about seizures grew, Nintendo stopped releasing any seizure information about specific games. The Nintendo executive interviewed asserted that the company began making its games safer and started including seizure warnings with game instructions as soon as the problem came to their attention—in 1991.
The story, featured on the BBC’s Outrageous Fortune program in 2004, also includes an interview with photosensitive epilepsy expert Prof. Graham Harding. Using his own flash and pattern analyzer Prof. Harding shows the results of testing some Nintendo games for seizure safety.
To view the ten-minute segment about video game seizures in the report on Nintendo, first go to www.youtube.com/watch?v=0aFhW56c2Vg and fast forward to about 5:15 into the clip. The seizure segment continues at the beginning of this clip.
The documentary was never aired in the US, and I’d long since given up searching for it online. But I recently came upon it thanks to John Ledford, who has been tracking seizure lawsuits filed against the game industry. John became blind in one eye as a result of his first grand mal seizure—which occurred while he was playing a video game in 1994.
Why we ignore seizure warnings: Some “light” readingPosted: 08/24/2011 Filed under: Legal Action, Seizure Warnings | Tags: computer games, photosensitive epilepsy, photosensitivity, seizure warning, seizures, video games Leave a comment
Aftter seeing so many useless disclaimers, it’s no wonder people skip over the seizure warnings that come with video games. We’d rather start using our new purchase instead of reading through safety precautions that presume we have no common sense.
A few months ago I gave an example of a ridiculous-sounding product warning to illustrate why it is that most folks routinely skip over the safety advisories in product manuals. I started searching for other examples of silly disclaimers in product literature that are placed to protect the manufacturer from liability claims. Here are a few:
- “ATTENTION: The cutting edges of scissors are sharp and care should be taken whenever cutting or handling.” — crayon manufacturer’s manual for arts and crafts projects
- “Although all possible measures have been taken to ensure the accuracy of the material presented, neither the author nor the publisher is liable in case of misinterpretation of directions, misapplication, or typographical error.” — book on growing your own vegetables, fruits and herbs
- “DO NOT run the vacuum over large-sized objects.” — vacuum cleaner owner’s manual
- ”Do not place fan in or near a window, to avoid contact with the outdoor elements.” — manual for a personal fan
Some enterprising people have already collected many examples of this disclaimer genre that make for amusing reading. Here are some links to silly warnings/disclaimers that will make you shake your head in wonderment. Note that I can’t vouch for the authenticity of the items on these lists nor guarantee that you will be amused (that’s a disclaimer).
It happened once during a video game. Now what?Posted: 06/30/2011 Filed under: Diagnostic Challenges, Legal Action, Seizure Warnings, Video Game Companies | Tags: computer games, flash, flicker, photosensitive epilepsy, photosensitivity, seizure prevention, seizure warning, seizures, video games, World of Warcraft 1 Comment
You were playing your usual MMORPG when you noticed that your vision was doing strange things, or maybe you had a funny feeling in your stomach, followed by a somewhat dazed and “out of it” feeling. Maybe a friend who was with you noticed you sitting and staring for about half a minute. The product literature, which you read very carefully (right!) before trying out this game for the first time, included warnings about possible seizures. So you check the literature again, do some online searches, and the symptoms you read about sound like what you’ve just experienced. This is all very strange. Where to go from here? What impact will this have on your life?
First, remember that you don’t have to have classic epilepsy — unprovoked seizures — in order to experience a seizure from bright flashes. Although the tendency to have seizures only from flash and flicker is often called photosensitive epilepsy, this name can be misleading and unnecessarily alarming. To be more precise and accurate, some researchers use the term visually induced seizures. Having a seizure during a video game does not mean you should assume you’ve developed epilepsy.
Of course, it could have been a one-time thing. Maybe there was some contributing circumstance (there often is). For example, maybe you were playing after sleeping only two hours the night before. Or you got ten hours of sleep but you sat in front of your console for four hours without taking a break. Or maybe you’d had more beer than usual. If you’re a woman, maybe you’re expecting your period. Maybe a new version/expansion of the game includes brighter, flashier screens? Do other things that flash ever make you feel strange or really uncomfortable? Flash photography, fireworks, emergency lights on police and fire vehicles? Fluorescent bulbs that aren’t working right?
If so, you’ll need to decide how you feel about the risk of experiencing more seizures from games with bright flashes. Depending on how severe the seizure symptoms and after-effects were, you might want to try exposure to the same game just to see if you begin to feel weird sensations again — for just long enough to begin feeling something strange — so you can stop playing as soon as you begin to feel something strange. (For some people, though, by the time they can feel as though a seizure is coming on, they aren’t able to take control of the situation to avert it.) If you try the same game again, at the same playing level, under similar circumstances, you may be able to determine if what happened was a fluke or maybe wasn’t even a seizure, after all. Then try playing it under different circumstances–on a full night’s sleep. Without alcohol, or whatever the contributing factor might have been. It might be that you’re fine unless you’ve got a specific set of factors that lower your seizure threshold.
If you are pretty sure the game’s given you at least one seizure, you need to think about taking precautions to avoid situations where you might be triggered again. Or, if you’re an adult, like Julian who posted his story on GameSpy, you can accept the fact that this is an occasional problem you’re willing to live with. I very much admire the candor of his story. He understands why warnings exist and knows that as an adult he’s free to choose what works best for him. He knows he’ll get a seizure once in a while when he plays, and he’s OK with it. As he says, the seizure warnings are primarily for parents, whose children aren’t really mature enough to look after themselves and make those decisions. For many people, though, seizures are disruptive and somewhat disabling, and they affect access to driving a car, so the risk may not be worth it.
If you’re a young person living at home, you’ve got a dilemma about telling your parents. They probably never liked your games anyway, and thought you should be spending more time on doing homework and getting exercise. What if talking to them about this gives them the ammunition—as it were—to take away your Playstation? What if they become overprotective and worry about every flashing light you encounter from now to eternity? On the other hand, maybe this is something they ought to know about? If you have an employer, is it any of the company’s business? (This is a really tough issue but is probably not really pressing if your seizures have very specific, reasonably easy to control triggers. You wouldn’t be sitting at your desk playing World of Warcraft during lunch anyway, right?)
You might feel weird about telling your friends. Depending on your age and their maturity, some of them might appear to find this funny or see it as an excuse to point out you have a significant wimp factor. Besides, when kids get together they like to play video games. Do you really want to set yourself apart from the rest? How else could you possibly amuse yourself without your friends? (Test the waters by announcing you’re going gluten-free and see if they roll their eyes.) On the other hand, they might be impressed. Note the title of former Internet TV show Epileptic Gaming, online games named The Epilepsy Game, etc.
Think the company that makes the video game wants to hear from you about your seizure? Not really, because they already told you so! They already warned you about seizures in the instruction manual! Occasionally consumers do take their seizure complaints to game developers and hardware manufacturers by filing a lawsuit. This is a long and stressful process.
Can a doctor help? If you decide to mention to a physician what happened, the most likely responses you will hear are:
- “If the game bothers you, don’t play it. You should probably avoid strobe lights, too.”
- “That’s extremely rare.”
- “Doesn’t sound like a seizure. You would have had convulsions.”
- “We don’t treat anyone for having just one seizure.”
Game forums blame pilot, natchPosted: 05/17/2011 Filed under: Legal Action, Video Game Companies | Tags: computer games, Oblivion: The Elder Scrolls, Playstation, seizures, Sony, video games Leave a comment
While product liability suits don’t generally get a lot of respect, litigation is often an effective way to pressure manufacturers to make their products safer for consumers. In my last post I was wondering what the game forums would have to say about the lawsuit recently filed by John Ryan McLaughlin, a former F-18 pilot who has permanently lost his flight status as a result of a seizure he experienced while playing Oblivion: The Elder Scrolls IV.
A thick skin is required just to lurk on these forums because the level of hostility can be so high when posters comment on a perceived threat to a game or game company. Some of these game forums are populated by folks paid to post comments supportive of the company/industry, but I suspect most of the people who post their disdain for those with photosensitive epilepsy are just—how should I say this—lacking in social graces and emboldened by the anonymity of the Internet. As expected, talk of McLaughlin’s legal action quickly brought out contemptuous and often ill-informed postings.
Here are a few examples of what I found in the forums, somewhat sanitized. Most are plug-and-play responses that have been trotted out already in other discussions about video games provoking seizures:
- The pilot should be grateful to the game for exposing a hidden condition he didn’t know he had. Especially since the consequences would likely be quite dire if a seizure had happened in the cockpit.
- It’s probably a coincidence that the seizure happened while he was playing.
- The poster has epilepsy and has never had a game seizure. So obviously there’s something fishy about the story.
- If the game hadn’t triggered a seizure, something else would have.
- Maybe his sensitivity to all that screen flashing developed from all the years of flying F-18s, and the video game just triggered a seizure. (This one is my personal favorite.)
Navy pilot loses flight status after video game seizurePosted: 05/11/2011 Filed under: Diagnostic Challenges, Legal Action, Video Game Companies | Tags: Bethesda Softworks, computer games, Oblivion: The Elder Scrolls, photic stimulation, Playstation, seizures, Sony, video games 2 Comments
A former Navy pilot permanently lost his flight status after experiencing a seizure while playing the game Oblivion: The Elder Scrolls IV on a Sony Playstation 3. John Ryan McLaughlin, an F-18 pilot based in San Diego, also broke a bone in the incident. McLaughlin has filed suit against the game manufacturer, Bethesda Softworks, and Zenimax Media, its corporate parent, as well as Sony. Read the story here.
Note that pilots are very, very carefully screened for possible seizure disorders–using photic stimulation, which really can’t replicate the visual experience of a video game. I have to wonder how the game forums will respond to this…usually these commenters love to blame the parents of children who have video game seizures, claiming everyone should have anticipated it would happen. This very sobering case involves someone highly trained to defend our country, who’s been tested up and down to detect even the hint of a seizure problem, who now can’t use his flight training anymore. Ever. Are the game forums going to blame a guy who’s been certified seizure-free for not paying attention to a warning in the game’s user manual? Or maybe find his parents responsible?
Read more about lawsuits filed by consumers who experienced seizures from video games.