Top Science/Law Story of 2012: Manslaughter Conviction of Seismologists

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!)

Crime and Punishment

In the year 2000, a Virginia woman received some of the worst news possible when her young daughter approached her to discuss some  things that had been making her uncomfortable.  The daughter recounted recent episodes of her 40-year-old stepfather (the woman’s husband) making subtle sexual advances towards her over the last several weeks.  Subsequent investigation by the wife uncovered her husband’s expanding cache of magazines devoted to child pornography, the collection of which had been accompanied by increasingly frequent visits to Internet pornography sites and the solicitation of prostitutes at local massage parlors.

It is easy to understand her reaction, particularly since her husband worked as a schoolteacher:  The result was his legal removal from their home, a conviction for child molestation, treatment with the chemical-castration drug medroxyprogesterone, and a requirement that he attend a rehabilitative twelve-step program for sexual addiction.  The program was unsuccessful — he persistently solicited sexual favors from both the staff and clients at the rehabilitation center.  He was accordingly sentenced to a prison term.

The case was a fascinating one because the specific cause of his pedophilia was identified by neuroscientists who treated him when he presented himself at the University of Virginia Hospital on the eve of beginning his prison sentence, complaining of a headache.  MRI scans identified an approximately egg-sized brain tumor located in the right lobe of his orbitofrontal cortex, an area of the brain known to be correlated with social integration, judgment, and the acquisition of a moral sense.  Damage to that area had previously been identified in certain sociopaths.  Removal of the tumor resulted in a reestablishment of his previous sense of morality, and he returned to his home.  When he began to complain of headaches in October 2001 and had resumed his secret collection of child pornography, a further MRI scan revealed regrowth of the tumor.  His pedophiliac behavior again disappeared after removal of the second tumor.

This case serves as a striking example for the emerging field of “neurolaw,” and I have chosen it for two reasons:  first, it presents one of the most clear illustrations of a link between a specific neurology and criminal behavior; second, it involves a crime that is so offensive that many — perhaps most — would agree that it should be punished even as we agree that it was not the man’s “fault” that he developed a brain tumor.  The example is one that figures in the report released by The Royal Society in the UK this month entitled “Neuroscience and the Law.”  A copy of the report can be found here and the original report by neuroscientists about the patient described above can be found here.  Other aspects of the interaction of neuroscience and law are also of interest, and I may discuss them in future posts, but today I want to limit the focus.  What should the role of criminal punishment be as neuroscience allows us greater insight into the mechanism by which some individuals commit crimes?

Legal philosophy generally identifies four justifications for criminal punishment, although there is sometimes blurring in how they are  categorized by different thinkers:  incapacitation (the criminal must be rendered unable to continue committing the offense); deterrence (punishment must be visible so that others who might be inclined to commit the offense will be deterred from doing so); retribution (the criminal must suffer in some proportion to the suffering he caused in his victims); and rehabilitation (the punishment should operate so that the criminal will understand and accept the wrongness of his actions in a way that will change his future behavior).  Different people place a different level of importance on each of these justifications depending on their own personal philosophies, but virtually everyone recognizes the legitimacy of at least some of them.

In thinking about pedophilia — even pedophilia induced by a brain tumor — it is impossible not to continue to accept incapacitation as a justification for punishment.  Removing the ability to commit the crime is important in protecting children, particularly in circumstances where the person is driven by impulses so strong that he is unable to control them.  Similarly, deterrence has a legitimate role to play in influencing those who may experience similar but controllable impulses by demonstrating the consequences if they give in to them.  And from a retributive perspective, there is no difference in the harm caused to a victim simply because the biological reasons for the  commission of the crime are better understood.

Where a greater understanding of the origins of a crime play the most significant role is in the rehabilitative role of punishment.  That greater understanding allows responses to be fashioned that take account of the underlying neurological causes of crimes so they can be corrected.

But lines can still be difficult to draw.  We all know — people have always known — that there are those born with a predisposition to commit certain kinds of crimes.  To understand where that predisposition comes from because of a better understanding of neurology in no way changes the fact that our societies do believe that punishment is an appropriate response even when that predisposition results from factors outside an individual’s control — genetics, birth defects, formative social environments and pressures, etc.

Pedophilia arouses strong reactions in people.  But the same philosophical principles that continue to demand that we punish it apply to every crime, including those that may not be viewed as passionately.  Even as we come to understand the human brain more fully and to develop an appreciation of how its structure may be linked to crime, the philosophical bases upon which we have traditionally justified punishment remain essentially unchanged.  Those philosophies have been debated for centuries and while there are always issues at the fringes, they are almost universally accepted.

Still, it is unsettling to accept the reality that neuroscience is exposing:  one day you might be punished as a child molester when your real crime is to have developed cancer.

A Mean Act of Revenge Upon Lifeless Clay

Jack Kevorkian died today, and many are commenting about his role in the “right to die” movement.  While I am a supporter of the movement generally, I did not find Kevorkian to be a courageous man.  His actions had a significant detrimental impact on the efforts of others to provide ways for physicians to aid the terminally ill to end their lives on their own terms and with dignity. 

Consider for a moment the case of Diane, and imagine the circumstances she found herself in.  She had been raised by an alcoholic family when she was a child and had suffered a great number of torments in her life, including vaginal cancer as a young woman, clinical depression, and her own alcoholism.  When her physician diagnosed her with myelomonocytic leukemia, she was presented with the options:  She could proceed without treatment and survive for a few weeks or perhaps even a few months if she was lucky, but the last days of her life would surely be spent in pain and without dignity; it was not how she wanted her friends and family to remember her.  If she accepted the treatment her doctor had discussed, there was a 25% change of long-term survival, but the treatment itself — chemotherapy, bone marrow transplantation, irradiation — would also rob her of much of what she valued about life, and would likely result in as much pain as doing nothing.  For her, the 25% chance that such treatment would succeed was not worth it.  Others might have differed in their assessment, but this was hers. 

Neither option presented to her — let the disease run its course or accept a treatment she had rejected — was acceptable, and so she considered the unspoken alternative.  Diane’s physician told her of the Hemlock Society, even knowing that he could be subject to criminal prosecution and professional review, potentially losing his license to practice medicine.  But by having a physician who knew her involved in her decision, her mental state could be assessed to ensure that it was well-considered and not a result of overwhelming despair.  Her physician could explain how to use the drugs he prescribed — ostensibly to help her sleep — so that until the time came, she could live her life with confidence that she had control over when to end it.  She could enjoy the short time she had remaining without being haunted by fears that it would be ineffective or result in any number of consequences she did not want.  In the end, Diane died alone, without her husband or her son at her side, and without her physician there.  She did it alone so that she could protect all of them, but died in the way that she herself chose. 

The story of Diane is one that her physician, Dr. Timothy Quill, published in the New England Journal of Medicine in 1991.  A copy of it can be found here.  It was one of the first public accounts of a physician acknowledging that he had aided a patient in taking her own life.  It was to prompt a debate about the role of physicians at the end of life, and a subsequent study published by the same journal in 1996 found that about 20% of physicians in the United States had knowingly and intentionally prescribed medication to hasten their patients’ deaths. 

But the quiet, thoughtful, and sober approach adopted by Quill and many other physicians to the issue of physician-assisted suicide was very much derailed by the grandstanding antics of Kevorkian.  His theatrical flouting of the law, prompting law-enforcement agencies to act in making an example of him rather than seriously considering the merits of his views, were counterproductive to the medical debate. 

Kevorkian’s fascination with death was long part of his life.  He was not, as many believe, christened with the nickname “Dr. Death” because of his efforts promoting physician-assisted suicide.  That happened long before, during the 1950’s shortly after receiving his medical degree.  While a resident at the University of Michigan hospital, he photographed the eyes of terminally ill patients, ostensibly to identify the actual moment of death as a diagnostic method, but more truly “because it was interesting [and] a taboo subject.”  Later, he presented a paper to the American Association for the Advancement of Science advocating “terminal human experimentation” on condemned convicts before they were executed.  Another of his proposals was to euthanize death-row inmates so that their organs could be harvested for transplantation. 

His views have politely been described as “controversial,” but are perhaps more accurately considered gruesome and bizarre, such as his experiments aimed at transfusing blood from corpses into injured soldiers when other sources of blood were unavailable.  The result of his various investigations was considerable professional damage, causing him to resign or be dismissed from a number of medical centers and hospitals.  His own clinic failed as a business.  For all his current notoriety, Kevorkian was throughout his career considered very much an outsider to the mainstream medical-science community. 

In considering the legacy of Kevorkian, it is important to recognize the long history of the debate over physician-assisted suicide, which dates at least from the days of ancient Greece and Rome.  The modern debate in the United States has its origins in the development of modern anaesthesia.  The first surgeon to use ether as an anaesthetic, J.C. Warren, suggested it could be used “in mitigating the agonies of death.”  In 1870, the nonphysician Samuel D. Williams suggested the use of chloroform and other medications not just to relieve the pain of dying, but to spare a patient that pain completely by ending his life.  Although the proposal was made by a relatively obscure person, it attracted attention, being quoted and discussed in prominent journals and prompting significant discussion within the medical profession.  The various discussions culminated in a formal attempt to legalize physician-assisted suicide in Ohio in 1906, although the act was rejected by the legislature in a vote of 79 to 23. 

Today, there are three states that have legalized the practice of physician-assisted suicide — Oregon, Washington, and Montana.  The history of how that legislation came to pass, and the various court challenges that have been raised, is fascinating in its own right.  For now, suffice it to say that my own view is that those states legalized the practice because of the courageous efforts of physicians who are largely unknown, not because of the actions of Kevorkian.  Indeed their courage is all the greater that they achieved as much as they did despite his activities.

Is Your Scientific Malpractice Insurance Paid Up?

“Thanks to his intuition as a brilliant physicist and by relying on different arguments, Galileo, who practically invented the experimental method, understood why only the sun could function as the centre of the world, as it was then known, that is to say, as a planetary system.  The error of the theologians of the time, when they maintained the centrality of the Earth, was to think that our understanding of the physical world’s structure was, in some way, imposed by the literal sense of Sacred Scripture.”

 Pope John Paul II, November 4, 1992


Pope John Paul II did for the Catholic Church in 1992 what scientists do every single day in their professional lives:  admit to a mistake in understanding the nature of the universe.  Scientists do it because it is a fundamental part of the scientific method to acknowledge the failings in our understanding of the world, and because of our collective commitment to improving that understanding by refusing to become doctrinaire.  A scientist gains no higher respect from his peers than when he tells them he was mistaken and goes on to share what he has learned from that mistake so that they may continue the advance of knowledge.  It is this fundamental pillar of the scientific method that has single-handedly been responsible for its tremendous and astonishing successes. 

As the pope noted in his statement, Galileo was one of those who were responsible for devising such a brutal and uncompromising commitment to the evidence of our own eyes and ears in drawing conclusions about the world.  For this, he was condemned by the Church, sentenced to live under house arrest at his farmhouse in Arcetri, where he would have little to do other than grow blind and die.  It would not be until 1835 — more than 200 years after his conviction — that the Vatican would remove his Dialogue Concerning the Two Chief World Systems from its list of banned books and not until 1992 — more than 350 years after his conviction — that it would formally admit that it was wrong and Galileo was right.  (Some additional commentary that I have previously made about Galileo can be found here.) 

I find it unfortunate that it is again in Italy that ridiculous persecution of scientists is taking place.  It is not the Church this time, but rather the Italian state that is trying to hold scientists to a standard that fails to recognize the fundamental character of the scientific method.  On April 6, 2009, an earthquake struck Italy in the Abruzzo region, resulting in the death of more than 300 people and damaging thousands of building.  About 65,000 lost their homes and most of those were forced to live for weeks in makeshift “tendopoli” — tent cities — that were erected to house the quake refugees, a sad circumstance that Prime Minister Silvio Berlusconi thoughtlessly suggested was an opportunity for them to enjoy a “camping weekend.” 

The region had been experiencing Earth tremors for more than ten weeks in advance of the earthquake, and on March 30, a 4.0-magnitude earthquake struck the region.  There was concern among the public that a larger earthquake would follow, as indeed it did a week later.  A meeting of the Major Risks Committee, which provides advice to the Italian Civil Protection Agency on the risks of natural disasters was held on March 31.  Minutes from the meeting show that the following statements were made about the possibility of a major earthquake in Abruzzo:  “A major earthquake in the area is unlikely but cannot be ruled out”; “in recent times some recent earthquakes have been preceded by minor shocks days or weeks beforehand, but an the other hand many seismic swarms did not result in a major event”; “because L’Aquila is in a high-risk zone it is impossible to say with certainty that there will be no large earthquake”; “there is no reason to believe that a swarm of minor events is a sure predictor of a major shock” — all the sorts of cautious statements by scientists trying to place their understanding of the real risk in context of what they know about seismology and what they do not. 

But at a press conference later held by Bernardo De Bernardinis, a government official who was the deputy technical head of the Civil Protection Agency, reporters were told that “the scientific community tells us there is no danger, because there is an ongoing discharge of energy.”  The idea that small seismic events “release energy,” like letting a bit of steam out of a pressure cooker, is one that is soundly rejected by seismologists; the Earth does not function that way. 

The bizarre aftermath has been the bringing of charges of manslaughter against De Bernardinis and six seismologist members of the Major Risks Committee for their failure to properly warn the public of the danger.  The charges were brought almost a year ago, but a preliminary hearing was not held until last week because of delays resulting from requests by dozens of those damaged by the earthquake to receive civil compensation from the accused scientists.  Astonishingly, the result of the hearing was not an outright dismissal of the homicide charges, but instead a decision to proceed with a trial that will begin on September 20. 

To my mind, this case is an absurd attack on scientists, demanding an infallibility from them that they never claim.  As one of the indicted seismologists noted, there are hundreds of seismic shocks in Italy every year:  “If we were to alert the population every time, we would probably be indicted for unjustified alarm.”  These scientists face not only potential incarceration for twelve years if they are convicted of manslaughter, but also potential civil liability for property damage resulting from the earthquake.  The fact that this possibility is even being entertained is alarming:  It is likely to have a detrimental effect on the kinds of information scientists are willing to share with the public.  And if there is a realistic potential for civil liability arising from the kinds of statements that scientists routinely make, it may indeed make sense for scientists to seek malpractice insurance.  The very idea, though, that scientific research should be haunted by the threat of legal liability in the way that medicine is already, is more than troubling.