24 October 2012

Legal Liability for Bad Scientific Forecasts in the United States

The verdict in the lawsuit brought against scientists L'Aquila has prompted much discussion and debate. Following the initial poor reporting of the case and its context has followed some much better coverage. For instance, the Chronicle of Higher Education, the New Scientist, David Ropeik writing at Scientific American, and some colleagues of mine at Macquarie University writing at The Conversation have all added valuable context and nuance to this discussion.

Yet, some in the US scientific community, especially officials at AAAS and AGU continue to wax hyperbolic on this issue. For example,
"You risk losing valuable information from experts who would rather spend time in the lab than in prison," said Mark S. Frankel, director of the scientific-responsibility program of the American Association for the Advancement of Science.

"We are hearing concerns from our members," added Christine W. McEntee, executive director of the American Geophysical Union. "This isn't just about earthquakes but about hurricanes and tsunamis too." . . .

But even though the decision will be appealed, doling out convictions and prison time will have a chilling effect on scientists, said Mr. Frankel of the AAAS.

"There is so much uncertainty in science that the best advice still might not be the right advice," he said. With a ruling like this, "some scientists may fear participating in any public-policy process. I already hear from scientists who say that policy is so difficult that they'd be better off in the lab."
Such concerns are vastly overblown, and it is curious to see US scientific societies (mis)appropriating the narrative of the L'Aquila saga as part of their own political battles.

In 2002, Bobbie Klein, a lawyer by training and long-time colleague here at the University of Colorado, and I wrote two legal-review style papers on legal liability for forecasts under US law. One paper was focused on the public sector and the second on the private sector.

With respect to the public sector,  here is what we concluded (for the full paper, which includes a discussion of a range of interesting cases, see it here in PDF):
The decisions reviewed above indicate that the [Federal Tort Claims Act] likely would preclude most if not all claims against the federal government based on inaccurate weather forecasts, especially given the Gaubert decision and the cases applying it in lawsuits against the NWS for forecast-related claims. Bergquist, Monzon, and Taylor all recognize that policy factors, such as cost and the desire not to overwarn, enter into NWS forecasting and warning decisions. However, it would be too strong a statement to say that the federal government will never face a liability risk in its forecasting enterprise. In instances where all discretion has been removed, if other FTCA requirements were met, the government’s failure to follow a mandatory statute, regulation, or policy could expose it to liability. Of course, the Supreme Court could alter the Gaubert test to make it more difficult for the government to seek refuge in the discretionary function exception.
In short, do good science and follow the law and there is essentially no risk of legal liability. Precedent indicates that an inaccurate forecast is not a basis under US law for a claim of legal liability.

With respect to the private sector we concluded that the situation is a bit more complicated (full paper here in PDF):
Lawsuits against private sector weather forecasters for forecasts may increase in the coming years as the private sector expands its forecasting activities, especially if companies make inflated or unfounded claims of their ability to forecast the weather accurately. Thus, companies have to be cognizant of the trade-offs between using claims of forecast accuracy as a marketing tool and the exposure to liability that will result from unfounded claims of capabilities. Absent statutory immunity or a valid limitation of liability clause, private sector forecasters who are sued will have to defend lawsuits for inaccurate forecasts on their merits.

The decisions discussed above provide some guidance as to how such lawsuits could be resolved. At one end of the spectrum, forecasters will not be found liable simply because a forecast is erroneous. Courts in the past have recognized that forecasts are fallible and people who rely on such forecasts assume the risk that a particular prediction may not be realized. The issuance of probabilistic forecasts introduces additional technical considerations (e.g., in evaluating forecast “goodness”) but does not appear to contradict these general findings related to liability. At the other end of the spectrum, a forecaster should be found liable if a forecast was based on a deliberate, knowing falsehood or withholding of information.

Most cases likely will fall in a gray area, where it will be alleged that, while the forecast may have been made in good faith, it strayed from established professional standards. Rigorous verification of forecasts would offer valuable information to producers of forecasts about how to market their products honestly, to users of forecasts about how to use predictive information effectively, and to the court system when it is called upon to evaluate whether a forecast or forecast process meets the applicable professional standard.

In summary, our forecast for the legal liability of private sector forecast providers is “partly cloudy.” Private sector forecasters should take steps to ensure that their exposure is limited and insured as much as possible, so that those partly cloudy skies do not develop into powerful storms.
Even with the additional complications, it is highly unlikely that a forecaster who relies on established professional standards in the issuance of a forecast will be found liable for a poor forecast.

Of course, as in always the case in legal matters, history may not be a guide to the future and those future outcomes may deviate from that represented in past US case law. Even so, in the US scientists would appear to have exceedingly little reason for concern about legal liability for the issuance of forecasts that do not verify. The legal situation will of course be different across different countries.

While I certainly understand the concerns of scientists about legal exposure, the more important issues raised by the L'Aquila case involve the roles of scientists in policy and politics, where legal exposure in the Italian context derives from that larger context, as the more nuanced characterizations of the case have revealed. The L'Aquila lawsuit is to be appealed, so there will continue to be opportunities to discuss the particulars of the case and its broader significance.

Papers cited:

Klein, R and RA Pielke Jr. 2002, Bad weather? Then sue the weatherman! Part I: Legal liability for public sector forecasts. Bull. Amer. Meteorol. Soc. 83:1791-1799. (PDF)

Klein, R and RA Pielke Jr. 2002, Bad weather? Then sue the weatherman! Part II: Legal liability for private sector forecasts. Bull. Amer. Meteorol. Soc. 83:1801-1807. (PDF)