Should Scientists Be Held Legally Responsible for Their Results?

That title is lifted from Popular Science’s brief article. The idea is that scientists—as philosopher Christopher Essex reminded me, just like doctors and accountants and businessmen and engineers and everybody else who offers opinions for consideration already do—should put their money where their pronouncements are. Sue them

Pop Sci reminds us of how Bernardo De Bernardinis, the vice-director of Italy’s Department of Civil Protection

told reporters that citizens should not worry, and even agreed with a journalist who suggested that people should relax with a glass of wine.

Six days later, a major earthquake struck L’Aquila, a city in Abruzzo, killing more than 300 people. Soon after, citizens requested an investigation into the panelists’ findings, and the public prosecutor obliged. De Bernardinis and the panelists were charged with manslaughter and now face up to 15 years in prison. The L’Aquila judge who determined that the case could go to court said the defendants provided “imprecise, incomplete and contradictory information” and effectively “thwarted the activities designed to protect the public.”

That’s a lotta years! All for a busted forecast. (We covered the story here; it’s more complicated than the quotation suggests.)

And then, “In 1989 a scientific advisory group reported that it was unlikely that BSE could be transmitted to humans. Through the early 1990s, government ministries reassured the public that it was safe to eat homegrown beef.” It wasn’t. People died, grief ensued, but suing lawyers were not unleashed. (Government bureaucrats were instead.)

South African lawmakers are proposing to make forecasting the weather illegal unless one has a license to do so (link). Easy to scoff at this one, since as Mark Twain said, etc. Then, think how seriously weather forecasts are taken in, say, Oklahoma. Somebody there says a tornado’s a comin’, and people take action. Expensive action, too. So the forecaster better be damn sure of himself. And woe betide the weatherman who says all is well when it isn’t.

But sue him for a mistake? Well, why not? Much as we hate to encourage unslakeable lawyers and their symbiotic gelatinous bottom feeders like JG Wentworth who will buy out (among other things) structured settlements won in law suits, these scavengers (sometimes) provide the useful function of eating the necrotic flesh of capitalism.

Instilling the fear of buzzards into scientists might sharpen their wits. It might for instance stem the flow of purple, hyperbolic prose and Chicken Little-ing from the environmentalist crowd if they knew that their words were going to be checked against the facts.

But how do we decide who gets sued? Should we sue those guys who a few months ago predicted, via statistical modeling, that the neutrino had no mass? Should we pull to the bar the group who got us all excited, via statistical modeling, that the Higgs was finally found, but who were (probably) premature? What about all the champagne that was bought and probably consumed after the first happy but ultimately wrong announcement? Should the crew who manned the accelerator be legally responsible for the bill?http://wmbriggs.com/blog/wp-admin/post-new.php

Can we sue those fellows who swore that brief exposure to a 72 × 45 pixels American flag turned people into Republicans? They learned this “fact” via statistical modeling. And what about all those especially earnest folks at the EPA who will protect us no matter what, who create statistical models aplenty proving that exposure to some barely detectable chemical will increase our risk of cancer from 20% to 20.001%? Can we haul them off to jail after it proves that their fretting was false?

How about the climatologists who swore, by golly and by gum, that the temperatures now should have been warmer than they are? Tar and feather them, litigationally speaking? After all, lots of money was spent believing these forecasts were accurate. Who should pay now that we have learned that they weren’t? We needn’t arrest James Hansen, incidentally, because he’s developed the habit of hauling himself off to jail from time to time.

Why, if we were allowed to sue scientists for failed predictions, the courts would have to run twenty-four hours a day, every day of the year, even Christmas, and that would be just for the sociologists, like those guys who claimed, via statistical modeling, that brief exposure to a 4th of July parade turned people into Republicans. We’d have to build special holding pens for the climatologists.

Scientists have a special right to be wrong, don’t they? They’re better than ordinary people somehow, aren’t they? If we held them accountable, they might be too scared to think of new theories. And the world always needs new theories. And, hey!, somebody might even sue me!

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Thanks to an anonymous reader for suggesting this topic.

See this real-life possibility of a meteorologist being sued from Brazil, a case where lots of money was involved.

19 Comments

  1. I don’t think we should sue the scientists unless they obtain our money via fraudulent means (e.g. by gaming grants).

    What we should have is legal recourse (other than the ballot box) against politicians and other authorities who defraud or mislead the public with bogus science. If these particular gelatinous bottom-feeders (to use your delicious term) knew that they could do hard time or be forced to reimburse the public treasury, they might be more careful to ensure that they are correct and did not rely on bad science.

    Sadly, until civilization and morals advance considerably, we will always have crooks and charlatans who will use whatever means they have at their disposal to expropriate from their fellow man what is not rightfully theirs. Some of them even delude themselves to the point of believing they are on a crusade to save mankind and thus no means is off-limits.

    This is, in my view, the strongest argument for limited government. Not that government programs per se are necessarily bad (although they do seem to fail rather spectacularly and rather often), but that we can’t count on flawed humans to administer vast amounts of our wealth with integrity.

  2. Let’s say that some number of years from now that the CO2-caused global warming “thing” has fallen from favor and large publicly traded companies that have invested heavily in CO2 mitigation products (solar power, windmills, electric cars, hydrogen cars etc.) have to write off these investments causing a loss to stockholders. Imagine a “class action” suit against not a scientist but a large university (and its large endowment) for failing to supervise its faculty members as they published stuff that was wrong. Not wrong as in it was the best they could do but the data was thin or their luck was bad … but wrong as in they tortured the data or failed to disclose unfavorable data or were incompetent or just lied.

  3. “We’d have to build special holding pens for the climatologists.”

    Holding pens need guards, administrators & prosecutors. Looks like we would finally see those green jobs. 🙂

    If instead of climategate I & II it were pharmagate I & II email servers would have been ceased by prosecutors and ever email that was not already released would have been subject to an intensive discovery process. What we see with the special treatment of Climate Science in the application of Virginia Fraud Against Taxpayers Act is shameful. How can there be a prosecution when politics will not even allow simple discovery?

    Once science leaves the lab & enters public policy it better be unscrupulous.

    Prosecutions of scientists when applicable should proceed.

  4. In the February issue the editor of Popular Science wrote an editorial proclaiming the Joplin MO tornado the “most devastating single tornado on record” and then used that misinformation in a weaselly vomit inducing manner to smear anyone who questions global warming.

    Joplin was still #7. But was the only one in the top #25 that occurred since 1955.

    http://www.spc.noaa.gov/faq/tornado/killers.html

    Popular Science, a magazine I used to read, has been captured by climate propagandists.

  5. Yes, sue the bejabbers out of them! Heck, I might sue you for this post. Jurisprudentially, there are quasi-tort provisions that hold you vicariously liable for hurting my feelings. And I’m weeping right now.

  6. @Bruce: PopSci isn’t alone in that category: most mass-market magazines (sadly, these days, Scientific American fails to distinguish itself from most other “science” magazines) have been dumbed-down and politicized in a tragic fashion. I can never read a story in any of them without wondering what the “agenda” is.

  7. There must still be freedom of speech. As long as you include a disclaimer like “for informational purposes only”, you should be allowed to say anything without fear of legal accountability, and usually this must not actually be stated, as it’s implied.

  8. You will have to prove that you personally were hurt, phically or financially by the bad science. It would be hard to claim that claims of massless nutrinos (nutrini?) have done that.

  9. Being legally responsible would put a heck of a kibosh on research. Though there has to be some responsibility when acting in public advisory capacity especially if it self (non-commissioned) advisory which is advocacy in disguise. Committing fraud with public money should carry a penalty (which I think it already does).

    From my flying days it was rare to encounter a forecast that contained the words “no chance” in regard to thunderstorms and icing although I once saw a forecast that said “no chance of a tornado”. In the winter “chance of icing” was rarely missing. Likewise summer had “chance of thunderstorms”**. It’s kinda like the label that says: ” do not use this garbage can as a pet or child carrier”. The NWS doesn’t like to get sued apparently.

    Leaving out the uncertainties in a science should be seen as tantamount to omitting those CYA labels. Being required to include them might help quell the use of scary and misleading statements to the media (and in abstracts) in regard to research.

    But that said, proving negligent or even reckless statements would be darn hard to prove.

    ** I once did a project for the NWS and one of my contacts wryly noted that summer forecasts were easy: “sunny with a chance of thunderstorms”.

  10. All,

    Since posting this, I’ve already started receiving spam email.

    Attorney Briggs,

    Chances are you would like better quality and more new case intake from your firm’s website…

    Some kind of attorney marketing company. Sheesh. Add marketers to the list with hyenas, vultures, etc.

  11. The basic principle is I think fairly simple here but the devil is in the details.

    If someone specifically advises a course of treatment or behaviour which turns out to be detrimental, then there should be a liability which is jointly proportionate in some sense to the claimed credibility of the advisor and to the extent by which the advice differs from what would be considered reasonable by someone who had done “due diligence” (by way of researching the state of knowledge etc) at the time of the advice. Any such liability is aggravated by having been given in apparent “bad faith” or even without “due regard” for possible consequences, and/or by a fee having been charged for the advice.

    I was initially shocked to hear of the Italian situation but your description of the news report does change things a little bit. However, I suspect that in the end the advice to sit tight and have a drink will be found to have been, perhaps unduly cavalier, but not to the extent of liability in the light of the reasonable (albeit possibly incorrect) perception of a need to avoid a dangerous panic.

    FTL neutrinos and Higgsons are of course only there as a joke, but wrt climate predictions it may be that a century from now we will have enough information to decide who was right and who was wrong. Even then though, it may be easier to establish bad faith (as in the tobacco cases with incriminating internal memos) than lack of due diligence on any particular side.

  12. “You will have to prove that you personally were hurt, phically or financially by the bad science.”

    Not really, you don’t need any proof of harm, you just need a good horror story. If you recall the Dow Corning silicone breast implants case, the women sued clainimg the implants caused all sorts of diseases. They told horror stories about the awful things that had happened to them, supposed caused by the implants. Expert witnesses testified that these horror stories were believable. Dow Corning was bankrupted. Later large studies in the US, Europe and Scandanavia showed women with these implants had no higher disease or mortality rates than women without the implants. The studies were too late to do Dow Corning any good. You just need a good lawyer and a sympathetic or guillable judge or jury.

  13. Assignment of legal responsibility for bad advice is a very difficult matter. On the one hand, you may not hear many licensed engineers proclaiming all the local bridges to be unsafe without application of their magic elixir, because an engineer can be defrocked, sued, and thrown in the can for providing bad advice in the wrong context. On the other hand, you do see licensed physicians and psychiatrists on TV getting away with promoting fake remedies for real problems, and actual remedies for unreal problems, and meanwhile the docs who are just doing their jobs the best way they can are getting sued for malpractice over errors or bad luck. How should the law deal with all the psychics, astrologers, used car salesmen, and wine stewards, much less the climate “scientists”, the spreaders of rumors about vaccination, and the predictors of pandemics? And then there are the politicians who steal elections by lying and when in office make economically ruinous decisions.

    The last few years of teeth-grinding over the global warming scam has, in a way, been an awakening experience for me. Now my quackery detector is very sensitive, and I am aware of scientists and “experts” — even engineers — of all kinds and levels making dubious claims, believing unsupported things, and spouting off authoritatively when they don’t have a clue. Science just isn’t the shining edifice of fascinating facts and noble knowers of those facts that it is cracked up to be in popular science books and videos. Even we who are part of it can wishfully fall into thinking that it is what it is like. I now see it as more of a shanty town.

  14. After careful consideration of a couple of minutes, I remembered that I’d thought about this previously.

    Legal action should only be taken against any professional if they deliberately misled. Either in the provision of information or in their competence to deliver information/advice.

    Misleading can be in the form of omission of subtantial information; including but not limited to data, other relevant information sources, measures of uncertainty, methods used to arrive at the conclusions/results, assumptions made and the limitations of analysis.

    Providing a disclaimer to attempt to dodge these points should be prohibited under law. When a paid servant provides such a disclaimer along with their commissioned work, you have a moral right (if not obligation) to refuse payment as they have, in effect, failed to deliver the advice sought.

  15. How about holding lawyers legally responsible for their results? Tort the torters.

    Or else do away with the lawyers, following Shakespeare’s advice, which solves the problem rather neatly.

    Remember all you sue-happy victims, that knife cuts both ways.

  16. I think you will find in practice that most scientists, especially climate scientists, cover their arses fairly well. I make this observation on the basis of reading two very very long reports on (1) ocean acidification and (2) the health impacts of a warming planet.

    I am paraphrasing but the gist of the conclusions to such studies generally run like this:

    “Ocean acidification [or insert whatever worry you can think up] is a clear and present danger. However, we have no empirical basis upon which to make such a claim and enormous uncertainties remain and more research funding is required.”

    If you think I am exaggerating here, people really do need to read these sorts of reports. I’m presuming the first part of the paragraph is there for the media to cite.

  17. People who predict tornadoes could start predicting the stock market instead. Which will result in lots more people being killed by tornadoes, and no change at all in the predictability of the stock market. And with nobody predicting tornadoes, there’s nobody to sue.

    Clearly the costs of making no predictions at all are bigger than the costs of making the occasional false prediction.

  18. As an economic geologist working in mining and exploration, I can state that frequently both our reputation and potentially our money is put on the line. This is because mineral reserve and resource statements published in stock exchange documents must be signed off by qualified professionals. This requirement evolved as a reaction to successful fraudulent misuse of such data.

    That is the nub. We are obliged to be both scientists and professionals who take responsibility for what we say. My problem with climate scientists is that they have yet to become a profession. Nevertheless large sums of money are poured into climate research based on their scientific statements. Furthermore, large sums of money are extracted from taxpayers based on their conclusions. The absence of professional conduct is the problem.

    It seems dereliction of economic sense that anyone would take the advice of any scientist for financial advice who has not been trained as a professional to produce scientific data to a standard that can be audited by third party peers. Although one can argue that self-regulated professional bodies provide limited insurance against fraud, it is a lot better than allowing scientists who have no commercial experience providing data for commercial decisions.

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