In today’s tech-driven age, we don’t just own phones, we live by them. So with both the Apple iPhone and Samsung Galaxy Note 7 experiencing widespread malfunctioning issues, it is no surprise that angry consumers want to have their day in court and hold these manufacturers liable for damages. Though each company’s phone suffers from a different problem, and thus, the causes of action and case theories will be different, one thing is for certain – the expert witness testimony will be the focal point of litigation.
Apple’s iPhone and “Touch Disease”
More and more owners of Apple’s iPhone 6 and 6 Plus have been complaining about the models becoming unresponsive to touch. Referred to as the “touch disease,” Apple has never officially acknowledged the problem. Despite research suggesting that 11% of all iPhone repairs conducted at Apple stores are due to this particular type of malfunction. Apple can no longer remain silent, however, as they are now facing class action suits in the federal courts of California and Utah as well as in Canada. More and more scorned Apple customers are seeking to exercise their rights and join the class action. Richard McCune is an attorney for the plaintiffs in the California lawsuits. He estimates that nearly 10,000 people have asked to join the lawsuit.
The lawsuits claim that Apple failed to fix a defect that causes “tiny soldered balls under the smartphone’s screen to crack during regular use and render their touchscreens useless”. The flaw is believed to be caused by the phone’s size and “unreinforced logic board”. This causes the phone to bend and damage the “IC” chips, the mechanism that “converts the touches on the touchscreen into action in Apple’s iPhone software”. Symptoms include a flickering screen bearing a gray bar, and intermittent unresponsiveness across the entire display. Because Apple does not conduct repairs on its logic board, most customers plagued with the touch disease are forced to buy a new device.
When customers have brought their phones into Apple to be fixed, they were often charged for replacements or were provided refurbished models with the same issues. It is a very difficult repair to conduct, so bringing the phone to a third-party repair shop does not guarantee a remedy and fixing it yourself is not recommended.
Samsung’s Galaxy Note 7 and the Fire Hazard Recall
On the other side of the smartphone spectrum, Samsung has been facing its own controversy over the Galaxy Note 7 overheating and catching fire. Unlike Apple, Samsung was forced to address the problem directly. It has issued two voluntary recalls after nearly 100 instances of dangerous overheating were reported. Over 1.9 million phones in the United States alone must be collected and recycled. Despite the recalls and Samsung ceasing production of the phones entirely, nearly one million people are still using the phones. Samsung has offered its customers a $100 credit to exchange the Galaxy Note 7 for another Samsung phone.
Unlike the iPhone’s logic board defects, the Galaxy Note 7’s tendency to combust into flames is less complex. Like most phones, the Galaxy Note 7 uses a lithium ion battery, which is highly flammable. If the battery is punctured, separating the positive and negative sides of the battery, it heats up the flammable liquid electrolyte, which can cause an explosion. According to a preliminary report, a manufacturing error that “placed pressure on plates contained within battery cells [and]…brought negative and positive poles into contact,” was the cause of the defect.
Due to the physically dangerous nature of the Samsung defect, it was only a matter of time before the lawsuits commenced. A Florida man was the first to sue the company for second-degree burns on his leg and thumb. These were caused by the phone exploding in his pants pocket. As of last month, there have been 92 reports of the phones overheating, 26 reports of burns, and 55 reports of property damage. A Seattle law firm has stated they will likely file a class action suit against Samsung in the upcoming week.
Phone in the Experts
With massive litigation looming for two of the biggest smartphone manufacturers, expert witness testimony will be indispensable for both the plaintiff and the defense. While experts in more complex, technical fields are to be expected; experts in retail phone repair may provide important testimony for the plaintiffs to establish not just the prevalence of the defect but also give examples of how customers have attempted to ameliorate the defect on their own. Due to the relatively widespread nature of the defects plaguing both companies, someone who is on the front line witnessing these problems everyday can be a great segue into more technically advanced experts. These experts can be particularly useful for plaintiffs in the Apple class action, because Apple employees themselves never engaged in repairs. Rather, their customers could only seek repairs from third parties. For example, Mark Shaffer of iPad Rehab offers important insight on the iPhone defect:
“It’s absolutely a problem in the design. End users are not doing anything to cause this besides using the phone normally… Really all you can do is avoid any activity that would cause the phone to flex. Don’t drop it, definitely don’t put it in any case that requires you to apply force to the phone to get it into and out of the case. Don’t put it in your back pocket, don’t put it in your front pocket if it’s a tight pocket. Actually, don’t put it in any pocket… I feel like most of my job now is just replacing Touch ICs… We really started doing them in November after the phones came off warranty and it’s increased from a handful every month to now, we’re seeing daily anywhere from 5 to 15.”
On a more technical note, mechanical engineering expert witnesses for both sides will be needed to testify to the mechanical structure and design of the phone. These experts will be useful in laying the foundation for understanding the phone’s basic components and functioning. For Samsung in particular, a metallurgical engineering expert can provide testimony as to the design and construction of the metals involved in the overheating and combustion of the Galaxy Note 7.
To the extent that either Apple or Samsung attempt to claim the owners of their phones engaged in conduct that proximately caused the damages, a mobile device forensics expert may be useful. This type of expert can extract a variety of data from the phone such as text messages, calls, web history, locations, and wireless networks. While the information to date suggests that both phones suffer from defects more physical in nature, i.e., the iPhone bending its logic board and the Galaxy Note 7 puncturing its battery, a mobile forensics expert may be able to recover internal data that can nonetheless point to an alternative cause for the defect.
Despite their ubiquity in our lives, cell phones are above all, mere products. How they operate is, in part, dependent upon us. Therefore, in both the Apple and Samsung litigations, it is critical for each party to hire a human factors expert to testify as to how a phone may be affected, if at all, by its owner. Human factors experts analyze how individuals interact with technology, taking into account the issues of perception, attention, memory, and risk.
In both cases, the defendant companies can utilize a human factors expert to emphasize the customer’s role, if any, in the phone’s malfunction. While the experts for the plaintiffs can argue that human error did not contribute to the defect. Or whether owners handled their phones in such a way that would cause the defect in question will be a critical issue in both lawsuits. A human factors expert can help explain an owner’s interactions with the product.
Unlike the iPhone, Samsung’s Galaxy Note 7 has caused physical injuries to its customers. This warrants an additional slew of expert witnesses to prove damages. In this respect, the witnesses commonly used in product liability and personal injury cases will also be needed in the Samsung litigation, such as medical experts to attest to the physical injuries, and accident reconstruction specialists to recreate how the incident occurred. While the latter is typically used in automobile accident cases, an accident reconstruction expert can determine the cause of these fires; particularly in claims where the fires have caused widespread damage.
Overall, it is only the tip of the litigation iceberg for both Apple and Samsung. In the upcoming months, it is likely that the class actions and personal lawsuits will multiply. In light of the complexity, technology, and damages involved, a range of different expert witnesses will certainly be needed in order for either party to advance its case.
