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doctrine.181 In contrast, a private right of action may exist at federal law for harms caused by products regulated by the Consumer Product Safety Commission rather than the FDA.182 Looking to the future, plaintiffs’ attorneys no doubt will consider a plethora of product liability allegations against app developers, wearable manufacturers, and their distributors. It is anticipated that arguments will be made that fitness and wellness apps recommended either over-exercise or under-exercise, and it is unlikely to be long before some plaintiff alleges a new syndrome such as “exercise addiction.”183 Other quantified-self apps have faced such exposure. For example, in 2012, the family of an “obsessed” cyclist, who died trying to break a record, unsuccessfully sued the developer of a bicycle GPS app that awarded “King of the Mountain” status to top performers,184 with the trial court concluding that the cyclist “assumed the risks of bicycling and that the defendant (Strava) has shown that bicycling is an inherent risky activity.”185 Annually there are large numbers of deaths and injuries caused by exercise equipment.186 Increasingly, health apps will either control that equipment or potentially cause distractions for users.187 As the wearable market matures, devices will increasingly be built into
181. See Rodriguez v. Am. Med. Sys., 597 F. Appx. 226, 228 (5th Cir. 2014). 182. 15 U.S.C. § 2072 (1981); see also Zepik v. Tidewater Midwest, Inc., 856 F.2d 936, 943 (7th Cir. 1988). 183. See Kristina Berczik et al., Exercise Addiction: Symptoms, Diagnosis, Epidemiology, and Etiology, 47 SUBSTANCE USE & MISUSE 403 (2011). 184. Liz Gannes, GPS App Strava Sued Over Cyclist’s Death, ALL THINGS D (Jun. 19, 2012), http://allthingsd.com/20120619/gps-app-strava-sued-over-cyclists-death/; Helen Pidd, Strava – The App That Turns Cyclists Into Racers, THE GUARDIAN (Jul. 31, 2013), http://www.theguardian.com/lifeandstyle/shortcuts/2013/jul/31/strava-app-cyclists-racers- smartphone. 185. Flint v. Strava, 2013 WL 9744334, 1 (Cal. Super. Ct. June 24, 2013) (order granting motion for summary judgment); see also One-Year-Old Lawsuit Against Strava Dismissed, BICYCLE RETAILER (June 4, 2013), http://www.bicycleretailer.com/north-america/2013/06/04/ one-year-old-lawsuit-against-strava-dismissed#.Vt Ws2sfp38t. 186. See Research & Statistics: Injury Statistics, U.S. CONSUMER PROD. SAFETY COMM’N, http://www.cpsc.gov/en/Research—Statistics/Injury-Statistics/ (last visited Mar. 16, 2016) (providing, for example, that between 2012 and 2014 there were approximately 72,900 injuries seen in hospital emergency rooms). 187. See, e.g., Michael E. Miller, Dave Goldberg’s Death Points to Rise and Risks of Treadmills in Era of Smartphones, WASH. POST (May 5, 2015), http://www.washingtonpost. com/news/morning-mix/wp/2015/05/05/dave-goldbergs-death-points-to-rise-and-risks-of- treadmills-in-era-of-smart-phones/?tid=hp_mm&hpid=z3 (“[Dave] Goldberg slipped and fell while using one of the [treadmills] [ . . . ] He hit his head and died from brain trauma and blood loss.”); Aamer Madhani, Treadmill Injuries Send Thousands to the ER Every Year, USA TODAY (May 5, 2015, 5: 45 PM), http://www.usatoday.com/story/news/2015/05/04/treadmill- emergency-room-injuries-exercise-equipment/26898487/ (describing injuries caused by exercise equipment).