Forty plus years ago, society used the label of addiction for few things — hard drugs being the most recognizable. Today people use “addicted” broadly when discussing how much someone likes chocolate, food, sex, shopping, gambling and surfing the internet, but what really counts as an addiction?
Today, over 90 percent of children and adolescents play video games. Many spend substantial time playing (seven hours and seven minutes per week, on average). A similar trend line can be found in adult behavior as well. Is gaming a new addiction and will there be a wave of litigation as a result?
For decades, the public health community has sought to address life-style problems to protect and improve health. Its work is achieved by promoting healthy lifestyles, researching disease and injury prevention, and detecting, preventing and responding to infectious diseases — a worthy pursuit. The investigation, testing, and warnings it issues have educated and protected society from many harms, including foodborne illnesses, motor vehicle dangers, children’s toys and car seat carriers, and workplace hazards.
The public health community’s expansion into advocacy often has practical and legal consequences. In 1986, at an international conference held in Ottawa, a broad new understanding of health promotion was adopted under the leadership of the World Health Organization (WHO), called “the Ottawa Charter for Health Promotion.”
The Ottawa Charter initiated a tendency to vigorously advocate for and against things deemed to help or hurt the public health. That advocacy has led to litigation. For example, in 2015, a report from the WHO’s International Agency for Research on Cancer said glyphosate, the main ingredient in Monsanto’s Roundup, is a “probable carcinogen.” Bayer, which purchased Monsanto in 2018, now faces over 18,000 lawsuits regarding the ingredient’s use. A California jury recently awarded a couple $2.055 billion in pain, suffering and punitive damages after they alleged the glyphosate exposure caused their blood cancer. And the glyphosate lawsuits didn’t stop with Roundup; lawsuits were soon brought against major food manufacturers and retailers.
In the United States, the U.S. Surgeon General is the leading official on matters of public health. In 1988, the Surgeon General labeled cigarettes and nicotine addictive. Thereafter, the public health community began calling many other substances — chocolate, food, sugar-sweetened drinks — addictive, and behaviors such as gambling and surfing the internet soon followed. However, it was not until 2013 that the American Psychiatric Association (APA) recognized “behavioral addiction” as the nomenclature for “gambling disorder.”
Listed In Classification of Disorders
Starting in 2014, the WHO concluded that the negative health consequences of excessive use of various electronic devices had become a significant public health concern in an increasing number of countries. In 2018, the WHO released the 11th edition of the International Classification of Disorders (ICD-11), and gaming disorder was included as a behavioral addiction for the first time.
A gaming disorder is defined as a clinically significant syndrome, manifested by impaired control over gaming, increased priority given to gaming over other activities, and continuation of gaming despite occurrence of negative consequences.
The WHO’s declaration has generated litigation. In October 2019, a proposed class action lawsuit was filed in Montreal, Quebec, on behalf of parents who claim that their minor sons became addicted to Fortnite, and that Epic Games, the publisher of Fortnite, designed the video game to be highly addictive, thereby knowingly putting the health of users in danger. The complaint’s allegations liken the addiction to a drug addiction and cite the WHO’s decision to classify “video game addiction” as a disease. The question is, is the WHO’s unproven assertion enough?
To meet the burden of proof to establish causation, a plaintiff must offer admissible expert testimony regarding both general and specific causation. General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual’s injury. Courts applying the Daubert standard insist upon reliable information from experts based on knowledge and experience of their discipline. Whether an expert’s opinions have “widespread acceptance” is an “an important factor in ruling particular evidence admissible and ‘a known technique’ which has been able to attract only minimal support within the community may properly be viewed with skepticism.”
The WHO justified its decision to include gaming disorder in its catalog of disorders based “on reviews of available evidence,” and said they reflect a consensus of experts from different disciplines and geographical regions.
Science or Advocacy?
The WHO blurs the line between reputable scientific conclusions and pure public health advocacy. There appears to be a lack of consensus on the scientific positions relating to gaming addiction. Indeed, many experts in the scientific community have voiced concern over classifying gaming disorder as a disease and have urged the WHO to postpone their formalization until more scientific evidence becomes available.
Interestingly, the WHO itself previously sounded this exact caution when they noted in 2015 the lack of empirical data to support a diagnosis of gaming disorder: “[E]pidemiological research in this field is faced with limited and often unreliable data.”
In October 2019, the journal Clinical Psychological Science published a study by Oxford University’s Internet Institute that questions whether the research and scientific attention given to this “immensely popular activity is empirically justified” and concludes that it is not. Members of the WHO team who were tasked with evaluating the available evidence acknowledged that political pressure entered into the decision-making process for considering video gaming a disorder.
The APA publishes the Diagnostic and Statistical Manual of Mental Disorders (DSM), which codifies psychiatric conditions and is used worldwide (although primarily in the United States) as a guide for diagnosing disorders. For various mental health conditions, the DSM is considered “the gold standard” for making clinical diagnoses. In 2013, the APA published its fifth edition of the DSM and did not include gaming disorder as a formal diagnosis. It made the decision to list Internet Gaming Disorder under the Conditions for Further Study section. The working group did not believe there was enough scientific support to endorse it as a formal disorder. The DSM-5 states, “Other excessive behavioral patterns, such as Internet gaming, have also been described, but the research on these and other behavioral syndromes is less clear.”
A review of case law reveals a smattering of decisions in which the issue of video game addiction or gaming addiction have been mentioned. Although many cases make reference to a party’s position, or reference a condition referred to as “video game addiction” or “gaming addiction,” we found none that discussed any objective criteria for the alleged condition, and none in which a court or jury considered whether the term was a recognized condition or whether liability or fault could be imposed for such a condition.
Seventh Circuit Judge Richard Posner famously noted, “[T]he courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.”
As gatekeepers, trial judges will need to decide whether there is legitimate science to support a diagnosis of gaming disorder in the courtroom. Lay people may agree that gaming can be habit-forming, but in a court of law, science supporting an expert witness’s opinion must be based upon sound principles and methods and sufficient, reliable data.
The goal of science is to test hypotheses. That process typically begins with an observation and proceeds to a hypothesis to explain the observation. This is followed by testing the hypothesis using sound methodology that is both valid and reliable. Once results are obtained, the process of peer review, publication and replication is followed. With respect to gaming disorder, one has to consider whether the cart has been put before the horse. Educating the judge on the current state of the science will be paramount in any litigation regarding a claim of addiction to video games.
For any manufacturer— and especially video game manufacturers — to successfully defend against tort claims, an in-depth analysis of the scientific and medical literature on any “condition” associated with its products is not only warranted but sure to be advantageous.
By Kurt D. Weaver and Madeline A. Campbell, Womble Bond Dickinson LLP