To me, choosing a “top” news story that implicates law and science that occurred in 2012 is easy: the manslaughter conviction of six Italian scientists who failed to predict the April 2009 earthquake in L’Aquila that killed 309 people.
But before I discuss that story, I want to provide context with another case that occurred 20 years ago, one that many still point to as an example of all that is wrong with the American tort system. After all, how can the system be working at all sensibly when a woman is awarded millions of dollars in damages for spilling a cup of coffee on herself?
The story of Stella Liebeck is notorious. But its facts have so frequently been misreported that it really provides an important cautionary tale. In February, 1992, the 79-year-old resident of Albuquerque purchased a cup of coffee through the drive-through of a fast-food restaurant. She was a passenger in a car driven by her grandson, who stopped the car so she could add cream and sugar. While supporting the cup between her knees, she attempted to remove the plastic lid from the Styrofoam cup, but spilled the entire cup, suffering third-degree burns in the area of her groin and upper legs. She required an eight-day hospital stay during which she needed to receive skin grafts. She wanted to settle her claim against the McDonald’s Corporation for $20,000 to cover her medical bills, but her offer was refused with a counteroffer of $800.
Evidence at trial showed that the restaurant routinely maintained its coffee at a temperature of about 190°F, a temperature known to cause third-degree burns in seconds when in contact with the skin and which its own quality-assurance manager testified was not fit for human consumption. Other evidence at trial established that coffee is usually served at about 140°F, that the restaurant knew of more than 700 people previously burned by its coffee over a ten year period, including serious third-degree burns, and that it had received numerous complaints by consumers and safety organizations about the unsafe temperature of its coffee.
The jury found the defendant company negligent and also found the plaintiff contributorily negligent, apportioning their responsibility for the harm at 80% and 20% respectively. The $200,000 damages award was accordingly reduced to $160,000. But the case’s notoriety arose from the jury’s decision to award two days worth of the company’s coffee sales—$2.7 million—as punitive damages, an amount that was reduced by the judge to triple the compensatory damages, i.e. to $480,000.
The true lesson of Liebeck v. McDonald’s Corporation is not one that damns the tort system of the United States. Rather, the lesson is one that demands looking deeper when the news reports stories that appear outlandish. After all, how can twelve jurors and a judge really award significant damages to a woman for spilling coffee on herself? It just doesn’t make sense without understanding the actual facts of the case.
I failed to apply that lesson when I commented on the L’Aquila earthquake a year and a half ago here, when manslaughter charges were first brought against the seismologists. To me, the charges represented little more than a fundamental misunderstanding of science and an unseemly search for a scapegoat. When I first heard the charges had resulted in convictions and sentences for six-years’ imprisonment for the scientists, my reaction was one of astonishment and a readiness for wholesale condemnation of the Italian legal system.
But if we apply the same sober thought that I advocate in judging Ms Liebeck, a similar question arises—how, really, can anyone condemn scientists to prison terms for failing to predict an earthquake? It makes no sense.
The reality is that the scientists were not convicted because of their failure to predict the earthquake. Rather, they were convicted because of their involvement in misleading information being communicated to the public.
Prior to the earthquake, a series of tremblors had been shaking the town, causing widespread concern that a large earthquake was imminent. Concerns were exacerbated because laboratory technician Giampaolo Giuliana had appeared on Italian television about a month before, predicting a major earthquake in the area. He based his prediction on increased levels of radon emission in the area, a measure that has been studied by seismologists but that has produced only inconsistent results. Italy’s Commissione Nazionale per la Previsone e Prevenzione dei Grand Rischi (“National Commission for the Forecast and Prevention of Serious Risks”) was accordingly convened to assess the danger and to communicate that assessment to the public.
The public was told, in an interview with Bernardo De Bernardinis, one of the members of the commission, that the seismic situation in L’Aquila was “certainly normal” and posed “no danger,” adding that “the scientific community continues to assure me that, to the contrary, it’s a favorable situation because of the continuous discharge of energy.” When asked whether the appropriate response to the series of tremblors was to sit back and enjoy a glass of wine, De Bernardinis replied, “Absolutely, absolutely a Montepulciano doc. This seems important.” The result has been characterized as a “sigh of relief” that propagated through the town: “It was repeated almost like a manta: the more tremors, the less danger.”
The circumstances under which the statements were made are complicated by several factors, including a perceived need to respond to the admittedly misleading statements of Giuliana based on radon measurements. Evidence suggests a decision before the commission meeting was held of the need “to reassure the public” and to “shut up any imbecile,” presumed to be a reference to the technician. Evidence also suggests that statements made by the seismologist members of the commission during the one-hour meeting itself were more appropriately measured than those delivered to the public: “It is unlikely that an earthquake like the one in 1703 could occur in the short term, but the possibility cannot be totally excluded” said one member; another noted that “in the seismically active area of L’Aquila, it is not possible to affirm that earthquakes will not occur.” But the public interview with De Bernardinis was held without the presence of those seismologists, who have subsequently been convicted of manslaughter largely because of their failure to contradict the inaccurate statements that were made in their name as members of the commission.
It is at least somewhat heartening that the convictions were based not on an inability of scientists to predict earthquakes but on the entirely human decisions of what statements to make to the public. We can even acknowledge that those decisions were at least imperfect and even probably ill-considered. Still, even with that greater understanding, the convictions remain troubling, with the penalty for errors of judgment seeming all out of proportion.
The Italian judge responsible for the convictions will be releasing full reasons for his decision in a matter of weeks, at which time they can be fully evaluated and criticized. There is no question his decision will be appealed and that many parties representing the interests of scientists will be put forth. We can expect these largely to take the form of speaking of the need for the public to have accurate information and for scientists to have the freedom to provide that information without fear of unreasonable prosecution. Guided by the principle that I think is effectively illustrated by the travesty of second-guessed judgment inflicted on Ms Liebeck, it as appropriate to wait for the judge’s full reasoning before becoming too decisively critical.
(Note: I have been inactive on this blog for too long. I don’t like making “New Year’s Resolutions,” but hope to be more productive with it in 2013. Happy New Year!)