In the summer of 2010 a complaint was registered with the US District Court (Oregon) against Justin Bieber, Island Def Jam Records, and the concert promoter, AEG Worldwide. In January of this year, it was withdrawn for a number of reasons- one of which was lack of legal representation.
Justin Bieber (who, like Bobby Orr and Wayne Gretzky, hails from just down the road from me in Canada) does give concerts that probably exceed the weekly dose of exposure of noise or music exposure, using even the most conservative of estimates (such as that of OSHA). In the claim, a woman maintained that after attending one of his concerts she experienced severe tinnitus, hyperacusis, and a reduced quality of life.
But what if there was a court case to determine if there was sufficient music exposure to cause permanent tinnitus, hyperacusis, and/or hearing loss? The first thing that any lawyer would do would be to hire an audiologist who would serve as an expert witness for Justin Bieber’s defense. The claimant’s side would probably not need to hire an expert witness because, as it so happened, the claimant’s lawyer had taken an audiology elective in law school and knew all about hearing and hearing loss prevention. The questioning would go something like this:
Claimant’s lawyer (we’ll call him Perry Mason): Did you know that loud music can cause hearing loss?
Bieber’s expert witness (we’ll call her Mary Audio): There are many articles in the literature that say that prolonged exposure to noise (and music) can cause permanent hearing loss, especially if the noise dose is exceeded.
Parry Mason: What is the noise dose?
Mary Audio: Well, uh,…, it’s like a dose of radiation exposure- it’s not just the sound level, but it’s also the duration of the exposure. An x-ray technician can be exposed to many x-rays, but if total exposure exceeds a certain combination of a large number of them within a short amount of time, then the maximum dose may be exceeded.
Parry Mason: Was the noise dose exceeded at the Justin Bieber concert?
Mary Audio: I have no idea.
Parry Mason: What do you mean that you have no idea!…. And stop crying!
Mary Audio: Well, stop yelling at me! (The expert witness wiped her eyes with a crumpled tissue). I don’t know if the maximum dose has been exceeded since there will be different sound levels depending on where the claimant may have been sitting in the concert. Also, I have no idea about what other noise or music the claimant may have been exposed to prior (or just after) the concert.
Perry Mason: As we heard yesterday, the claimant’s audiologist testified that there was a 35-decibel notch in the audiogram. She hadn’t complained of tinnitus or hyperacusis before the concert, so doesn’t it stand to reason that the concert caused the tinnitus and hyperacusis? … And stop crying!
Mary Audio: I don’t know the answer, and stop asking me questions I can’t answer! Nobody knows the answer to that. We know that tinnitus can be caused by many things, and that frequently it is a vicious circle- the more that tinnitus is noticed, and the more it bothers a person, the more it’s noticed. I don’t know why it started immediately after the concert. The claimant could have had the hearing loss for many years. When our hearing is damaged it would be nice if blood gushed out of our ears, but it’s much more subtle. And the damage may not show up as something that we can measure. There may be no measurable hearing loss on an audiogram.
Perry Mason: You lie!!! I had my hearing tested recently because my wife told me that I was ignoring her and the audiologist told me my hearing was perfect because my audiogram was perfect.
Mary Audio: So do you have a question?
Perry Mason: I’m the one asking questions here- don’t ask me a question!
Judge: Order in the court, please. Ms. Audio, please answer the question.
Mary Audio: Can we have the court reporter read the question again?
Court Reporter: I’m not sure, your honor. I think that Mr. Mason had asked how can you know that a person has a hearing loss if the audiogram is normal. After all, if the audiogram is normal, then hearing should be normal. Right, Mr. Mason?
Perry Mason: Right, you are. And may I add, how nice your hair looks today.
Mary Audio: I have nice hair too. Well, it turns out that when there is damage to the hearing mechanism, there can be pathology throughout the auditory system involving a number of cochlear structures, the VIII auditory nerve and even various elements of the central auditory system.
Perry Mason: Are you saying that the audiogram is an insensitive measure of hearing loss and that perhaps there is a lot of damage despite having a normal audiogram?
Mary Audio: Yes. By the time one sees an audiometric loss on an audiogram, a lot of cochlear damage has already occurred.
Perry Mason: So why don’t you and your colleagues do “real hearing tests” that can determine whether there is pathology?
Mary Audio: sniff, sniff,…, well,…, there are some tests, but we were taught in school that we should do an audiogram to test hearing…
Perry Mason: Do I need to remind you to stop crying? So, what other tests should my client have had to see if Mr. Beiber’s concert had created damage?
Mary Audio: Well, there is otoacoustic emission testing, some evoked potential tests are showing promise, and some central auditory tests may indicate pathology. I just haven’t done these tests since I was in school. And besides, they take so long to do!
Perry Mason: So, what you are saying is that you don’t know if Mr. Bieber’s concert caused my client to have tinnitus and hyperacusis, and you are too lazy (and too busy) to do any tests that may show pathology?
Mary Audio: Well, uh, …, yes.
Perry Mason: Please speak up. The court could not hear your response.
Mary Audio: Yes. Although we are well trained, many audiologists don’t have the time or the hardware to perform all of the tests to ascertain if there is a problem due to loud noise or loud music.
Perry Mason: You are the most incompetent of all expert witnesses I have ever seen… and stop crying!
So goes the trial.
We really are only in our infancy in determining which tests to perform and how to perform them. I would suspect that we should be dwelling more on auditory function tests rather than auditory acuity tests. In the meantime, I suspect that Justin Bieber is quite safe from litigation.