Johnson v. Your Baby Can: not much of a case

Larry Sanger

I finally got my hands on the court filing for Johnson v. Your Baby Can.  The case number is BC450907 and it was filed in Superior Court of Los Angeles County on December 8, 2010.  My initial assessment is that no jury is going to find for the plaintiff if this is the case; the case is threadbare, and on several points, laughably so.  I’ll be a little surprised if it actually goes to trial.

Let me state first, once again, that I have no financial or other relationship with Your Baby Can or Robert Titzer, except that I arrange for the Community Foundation of Northwest Mississippi to purchase copies of YBCR to place in Memphis-area preschools, we are helping a group at the University of Memphis to conduct a controlled scientific study of YBCR, and I personally have exchanged many messages with Dr. Titzer and am a satisfied customer.  While I don’t necessarily support Your Baby Can and Dr. Titzer in all of their claims, my disagreements are relatively unimportant and hardly grounds for a lawsuit.  I’m writing this because I’m highly interested in the case, personally, and I want to make sure I understand the issues very well.  I’m sharing the results of my analysis with you.

The suit rests crucially on the claim that Titzer and the Your Baby Can company (YBC) have sold Your Baby Can Read using claims that are false and misleading, not just unproven.  I think that some of the claims they make are plausible but not scientifically proven.  To make their case, the plaintiff must show that the claims are not just unproven, which is fairly easy to support, but false.  And how could they possibly do that, if no relevant studies have yet been completed and published?  Well, it depends on what claims they make.  So, what claims do Titzer and YBC make that are, according to the plaintiffs, false?  Let’s see.

In the “Summary of Action” section (p. 2), there is, first of all, this general claim:

Defendants claim that the Your Baby Can Read! System will have a positive and permanent effect on a child’s life. Defendants further state that the program can teach infants as young as three months old to read by as early as nine months old.

I wonder what the court, and jury, will regard as the item in contention here.  Which of the following claims would make the case, exactly?

1. No babies able to read (after some period of use), using YBCR.  (This is false.)
2. Only a few babies, a tiny number, are able to read, using YBCR.  (This has not been studied in peer-reviewed papers, and is probably false.)
3. Some babies, but not all, are able to read, using YBCR.  (This is true.)
4. Not all (not 100%) of babies are able to read, using YBCR.  (This is also true.)

It is surely very easy to establish claim (4), but what jury would award the case to the plaintiff on that basis?  If they opt for claim (1), they’ll easily lose the case.  Are they gunning for claims (2) or (3)?

Another point of vagueness lies in the definition of “read,” a point surprisingly glossed over in the brief.  (It doesn’t look like the plaintiff’s lawyers had the benefit of advice from actual reading experts.)  What if, as I think is probably the case, most babies who use the program to the end can read a few dozen words from memory, though they cannot yet sound out words phonetically, while a few babies can even sound out words phonetically?

And then there is the issue of time frame.  After how much time should babies be able to read, whether by memorizing whole words or phonetically?  Dr. Titzer is quoted (p. 14) as saying that six-month old babies require about six months before parents “notice some impact, some results,” but some babies take longer.

The plaintiff actually seems to want to make the claim that there is a unanimous consensus (p. 3) of experts that “children using the Your Baby Can Read! System are not reading at all [!], but memorizing the shapes of letters.”  First of all, I happen to know that the claim about unanimous consensus is quite simply false.  I personally know of a few legitimate experts who I’m pretty sure would disagree that children using YBCR “are not reading at all”; and I have heard of other supportive experts as well.  The fact that the Today Show’s producers (the plaintiff’s case actually rests a lot of argumentation on that deeply flawed Today Show segment), who were obviously deeply biased against YBCR, did not bring any such experts onto their show does not mean that they did not exist.

Anyway, the quotation above makes it sounds like they are going to endorse claim (1), which would be fun to refute in court.  In other words, if the crucial claim is that no children can learn to read phonetically using YBCR, the plaintiff’s case is going to collapse.  It is easy to find quite a few instances of tiny tots, who used YBCR, reading phonetically.  The YBC company should be able to bring several such instances into court.  The existence of such early readers is something, I am guessing, the supposed experts were simply ignorant of.

I’ve illustrated just how vague the denial of efficacy is, and how easy it is to establish a few senses in which children are able to read, using YBCR, from an early age.  But, to return to the first quotation from above, will this have  “a positive and permanent effect on a child’s life”?  Well, it depends, of course.  What if a child simply learns to memorize a few words by age 12 months, and the parents thereafter don’t read much to him or otherwise foster the child’s literacy?  Then I wouldn’t be at all surprised if the early experience memorizing some words had a negligible long-term effect.  But then there are plenty of children, like mine, who got an excellent start on reading with YBCR, and with proper support went on to read at an advanced level well before Kindergarten.

I’m not too familiar with the law, but I’d be surprised if the law would allow a group of people to sue Dr. Titzer simply because they used the program and, for whatever reason, it did not have “a positive and permanent effect” on their children’s lives.  Unless there is a guarantee of this, then you pays your money and you takes your chances, as with any number of other educational and health products.  The only way the plaintiff can make the case persuasively, I think, is if they can establish that there is a preponderance of evidence that YBCR had “a positive and permanent effect” on no child’s life, or on a very small number of children’s lives.  That would be hard for the plaintiff to show persuasively, and I’m not even sure that this is a grounds for a suit, because (as far as I can tell) the basic claim of Dr. Titzer and Your Baby Can is that children can learn to read, not that they are positively and permanently benefitted thereby.  After all, if you have, say, an 18 month old who has started to sound out new words, and if by age five that child has not benefitted from being able to read four years earlier, then whose fault is that, really?  The blame surely can’t be pinned on the company that actually helped your child to read at an early age.

For these reasons, I doubt the plaintiffs will want to rest their case mainly on the strength of a vague attack on some vague claim about the efficacy of YBCR.  They will argue for a whole pattern of deceptiveness.  So let’s see what other claims they’re portraying as “false and misleading.”  They have a useful list of claims on p. 3.

“The Your Baby Can Read! System can teach your three-month old to read by the time the child is only nine months old.”

This is presented as obvious hucksterism, but the plausibility of the claim depends entirely on what is meant by “read.”  Obviously, it’s not very plausible that babies can read new words phonetically at nine months.  But they can show that they recognize words, as when a nine-month old raises her hands when she sees the words (not read aloud by alone) “arms up.”  This is, after all, the first step in actual reading, even if it does not meet more stringent definitions.  The plaintiff would have to establish that Dr. Titzer and YBC were trying to get people to believe their product could do more than this.  Surely they can’t build a persuasive case on what experts insist the word “read” must mean, despite the fact that plenty of people are willing to use the word in a more “loose and popular” way.

“The Your Baby Can Read! System can enchance your child’s learning ability.”

This is a gimme: once it is established that a child has learned to read phonetically at an early age (again, many examples of this can be produced), it follows that his or her ability to learn is improved.  The argument will be simple and persuasive to any jury: if a child is able to read phonetically, then he can read independently of his parents.  Since the claim is put in terms of “can,” not “must” (or “is guaranteed to”), you simply need to trot out a few cases, I’d think.  That’s enough to establish possibility.

“The Your Baby Can Read! System is an appropriate tool for teaching your infants with Down’s syndrome or autism to read from a very young age.”

Well, let’s get this straight.  The fact that Dr. Titzer has said that he has observed some 18-month olds with Down’s syndrome actually reading does not mean that he or the Your Baby Can company assert that it is an appropriate tool, much less an appropriate therapy, for Down’s syndrome.

Putting that aside, the claim in bold above might sound bizarre and unlikely, unless you know that Glenn Doman has been having similar results with such children since the 1960s.  Let’s suppose that Dr. Titzer can establish that children with Down’s syndrome can learn to read with YBCR (e.g., bringing in a two-year old child with Down’s syndrome who reads Biscuit to the court).  This goes a long way to establishing that it is “an appropriate tool” for them; I would think that the burden would then be on the plaintiffs to show that it is inappropriate to successfully teach a child with Down’s syndrome to read at an early age.  I’m not a doctor and don’t pretend to have interesting opinions on therapies for children with birth defects, but that doesn’t sound very plausible to me.

“The Your Baby Can Read! System can prevent your child from developing dyslexia and other learning disabilities.”

Surely Dr. Titzer and YBC have not stated that YBCR can prevent your child from developing dyslexia.  There is only a quote on p. 11 from Dr. Titzer saying, “For dyslexia, the most common reading disorder, a lot of the children do not look at the words from left to right.  [The YBCR DVDs] can help prevent that problem, because they’re being taught, as babies, to look at words from left to right.”  All he said is that they can help prevent the problem.

Besides, the fact that Dr. Titzer has said in an interview something that loosely implies the claim in bold does not imply that he and Your Baby Can have guaranteed the claim, or rested their marketing on that basis.  I thought I knew a lot about YBCR, but this is the first time I’ve heard this claim.

Obviously, this hasn’t been proven in scientific studies, but I’m sure Your Baby Can will be able to bring in a few experts who will be able to testify that difficulty understanding that reading goes left-to-right is one of the sources of dyslexia, and that YBCR helps train the reader to read left-to-right.

“The early your child learns the better reader your child will be.”

While we don’t yet have hard scientific evidence of this going back to the earliest ages, there are a number of studies of ordinary precocious readers–meaning ones that started before kindergarten, between the ages of 3 and 5–indicating just this.  The students who arrive in Kindergarten being able to read are still doing better than their age peers in third or sixth grade, and they do even better if they started at age 4, and better still if they started at age 3.  That, anyway, is what I recall from Dolores Durkin’s book on the subject, and she is not the only one to have found this.  See Part 2, Section 12 of my essay (How and Why I Taught My Toddler to Read) for a brief review of the relevant literature.

So while, in a scientific context, this claim should not be made forthrightly and uncritically with respect to babies, it is defensible to make it in less formal contexts.  Surely the standards for advertising are not as stringent as the standards for scientific publishing.

“If your child starts school with an advantage they will keep that advantage all the way through school and vice-versa.”

First, I’m not sure where Dr. Titzer has said any such thing.  There’s nothing in the plaintiff’s filing that has him saying this.  Let’s suppose he has said it, though.

The issue, with respect to reading (which is of course the “advantage”) mentioned, has not been well studied.  But in my own admittedly amateur review of the literature, I found nothing to contradict this claim with respect to early reading, and it seems to be supported (albeit weakly) at least through sixth grade.  So as far as I know, the best the plaintiffs can say is that this claim is made without adequate scientific proof.  Does the law require that all claims made in advertising have adequate scientific proof?

So much for the list of “false and misleading representations.”  The plaintiffs then make another claim I want to address.  They say, “While Defendants maintain that numerous scientific studies support the use of the Your Baby Can Read! System, no such studies exist.” (p. 3)  Later, they clarify this by quoting the exchange in the Today Show segment about YBCR in which Dr. Titzer says, “We have a book full of studies that support the use of our program. It’s literally thicker than this.”  Jeff Rosen then reports: “But instead of published research on Your Baby Can Read!, he sent us this customer satisfaction survey conducted by his own company, along with general studies about child learning that experts we spoke to say he’s twisting and taking out of context.”

I believe I’m somewhat familiar with the studies that Dr. Titzer sent along, if it’s the same that he sent to me.  It turns out that both Dr. Titzer and Mr. Rosen are both correct, albeit only partially.  Dr. Titzer has indeed amassed a lot of research that could be used to make the case that YBCR might be effective, or that the success that parents have had with YBCR should not be surprising; but as Mr. Rosen correctly points out, the studies are general and do not specifically support YBCR.  What the Today Show evidently meant to look like a “gotcha” was really just an instance where Dr. Titzer rather defensively overstated his case, but not too badly, while Mr. Rosen entirely ignored the highly relevant fact that there are indeed a lot of satisfied customers of YBCR.

I could go on, but I’m sure I’ve already written too much.  In sum, the plaintiff’s case as stated here is threadbare indeed.

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