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)

13 comments:

Kip Hansen said...

Dr. Pielke,

What do you think the legal situation is when policy recommendations are made by university housed outfits which based on long-term climate simulations which have not been validated or verified in any real scientific sense?

Kip

dljvjbsl said...

An engineer designs a bridge which collapses due to a design flaw. He is civilly and criminally liable. He will have the defenses that Prof. Pielke outlines. That is accepted. Why do scientists believe that they should be treated in any other way.

David Appell said...

Perhaps. But I don't think it's at all beyond conceiving that the likes of Chris Horner and the American Tradition Institute would sue one or more climate scientists for failing to predict, say, a hurricane, or because some projection for hurricanes did not come true and that states & town had to prepare based on those forecasts, etc. They would sue just for the publicity, if nothing else -- and that's clearly not enough for them. And they would easily cite this Italian case if it suited their purposes....

n.n said...

There are three issues to consider. First, there is the gathering and presentation of material evidence. Second, there is a risk assessment based on the available evidence. Third, there is a response to the risk assessment in the form of adaptation or rejection.

The distribution of liability should correspond to the integrity of each function. If the first is incomplete (i.e. undisclosed) or corrupt, then the liability should rest with the first party. And similar criteria would be applicable to the functions of the second and third parties.

At each stage, the limits of the function need to be specified. For example, with the issue of climate change, the system is incompletely characterized, the contributing components are numerous in quantity and quality (i.e. unwieldy), and the behavior is therefore chaotic (i.e. bounded with limited predictability). The first party would present what they know and don't know for qualification and quantification by the second party, which then present their analysis to guide the direction of the third party.

This is how liability is processed in engineering and other vocations. There is no reason that scientists, risk assessors, and executives should not be held accountable to the same standards and be exposed to risk commensurately. This feedback is necessary to ensure the quality of output at each level.

Incidentally, a lot of problems in our society arise when the feedback mechanism is circumvented in order to dissociate or moderate risk associated with a behavior. This mechanism is imperative for quality control purposes and to constrain the progress of corruption.

dljvjbsl said...

Structural engineers have to be professionally certified and answer to a governing body before they are allowed to lead a design effort. They must certify all designs before they can be built. Do these scientists who make predictions and advise governments on life critical issues have the same requirements for professional certification. Why do they think that they should be different from other professions.

Lawyers can be disbarred and sued. Doctors can be struck off and sued. Engineers can lose their licences and be sued. They can go to jail. Do scientists have to meet the same standards? Do they have to adhere to standards set by a professional body or face the legal consequences? Why not?

stan said...

I don't think that simply meeting some claimed "scientific" standard would be necessarily sufficient as a defense. We know that science standards do not include investigating the quality of data used or checking calculations or replicating the work of others. I can readily see a jury finding liability if the evidence shows that a scientist took money to make a prediction and didn't bother to investigate the trustworthiness of data, calculations, or other studies that were important to the prediction. If the jurors' view of a minimal quality standard was clearly not met, the argument that all scientists are similarly negligent might not hold much water.

Jonathan Gilligan said...

Despite your reassurances, I find the judgment that poor communication skils = manslaughter to be very shocking.

Consider the Iben Browning case in the US in 1990. The geology community was roundly criticized for not being emphatic enough in publicly debunking Browning's nonsense (he predicted a massive earthquake near New Madrid MO in December 1990).

The next time someone like Browning turns up, should geologists consult their lawyers before debunking him, to make sure their statements meet some legal standard of clarity?

I have no problem with the criticism by people such as Ropeik that the scientists in Italy royally messed up on clearly communicating their findings to the public, but equating this failure with criminal homicide is appalling.

Mark B. said...

"We want you to trust us and do what we tell you to do, but don't you dare hold us responsible. That sort of thing is for the crass, grubby money-making private sector."

Maybe if more scientists were brought to the dock, the rest would be a little more careful about uncertainty. If you can't take the heat, please do stay out of the public policy kitchen.

Jonathan Gilligan said...

As Roger points out, US laws are different from Italian laws, so US scientists are not at risk here; but it does seem as though this case opens the door to future criminal prosecutions of Italian scientists who confidently assure the public that global warming is nothing to fear.

If climate change turns out to be anywhere near as bad as most climate scientists believe it will be, then scientists who assure the public there's nothing to worry about (I'm talking about those who say the risks are near zero, not the ones who say the risks are uncertain) would seem to be guilty of the same crime the geologists were convicted of.

I can't see how such criminal prosecutions would possibly enhance the quality of discourse at the intersection of science and the public interest.

dljvjbsl said...

Structural engineers have to be professionally certified and answer to a governing body before they are allowed to lead a design effort. They must certify all designs before they can be built. Do these scientists who make predictions and advise governments on life critical issues have the same requirements for professional certification. Why do they think that they should be different from other professions.

Lawyers can be disbarred and sued. Doctors can be struck off and sued. Engineers can lose their licences and be sued. They can go to jail. Do scientists have to meet the same standards? Do they have to adhere to standards set by a professional body or face the legal consequences? Why not?

Matt said...

@dljvjbsl

"Do they have to adhere to standards set by a professional body or face the legal consequences? Why not?"

No, they don't. Why Not? Because a forcast be it weather, climate or geologic activity (volcanos, earthquakes) is fundamentally different than what structural engeneers do.

If a sturctural engeneer makes a mistake and a building collapses as a result, the deaths and / or injuries of specific individuals can be directly causally tied to the engeneer's mistake.

This can not be done with a forcast. Reguardless of whether the forcast was for disaster or no disaster, people are free to ignore the forcast and prepare or not in any case. No matter how flawed the forcast was, not single specific death or injury can be causally tied to the forcast.

If a procecuter tried to take a scientist to court over a bad forcase and make the argument that more people died than we think would have if the forcast had been made correctly but we don't know which ones died because of the forcast or even how many then hopefully in the US under current US criminal law the procecuter would be laughed at by both judge and jury.
This does not hold

dljvjbsl said...

Matt writes:
================
No, they don't. Why Not? Because a forcast be it weather, climate or geologic activity (volcanos, earthquakes) is fundamentally different than what structural engeneers do
=================


Structural engineers have to make design decisions based on estimates of weather and geologic events. What intensity of hurricane should a building withstand; What magnitude of earthquake etc. These decisions have to be made by people who have been professionally licensed and are legally responsible for the consequences. They must follow professional standards.

Scientists, on the other hand seem to feel that they can make public predictions about serious issue without any responsibility. There is something very wrong about that. I don't know of any other profession that can make critical forecasts and take no responsibility.

Mark said...

But I don't think it's at all beyond conceiving that the likes of Chris Horner and the American Tradition Institute would sue one or more climate scientists for failing to predict, say, a hurricane, or because some projection for hurricanes did not come true.

Straw man.

Horner, even if he was as diabolical as you claim, has more than enough real issues to attend to.

(Incidentally, why did you not lead with David Suzuki, who in 2008 said that all politicians who ignore climate change should be thrown in jail! Or when your side threatens legal sanctions for incorrect belief, is that OK?)

In reality, no prediction, labelled as such, with uncertainties stated, will ever be liable if made in good faith. That's where the Italians failed.

The law is the same as it always was, and religious nut-jobs make outrageous claims every day – without any qualifications at all. Yet they seem to survive the legal storm you think they should be met with.

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