Modifying the Legal System for Technical Cases

[Sam_Stone]

Sure, a risk-benefit analysis can be botched, or a company can knowingly ignore the advice of engineers in favor extra profits. If the company behaves negligently, it should be held liable.

The problem is that juries often consider the existance of a risk-benefit analysis to be evidence of wrongdoing, regardless of its validity, any time the answer comes out in favor of saving money.

[Sam_Stone]

Gadarene: What do you think a jury would say if a ladder manufacter was sued after a fatal fall, and the prosecution managed to produce a document which showed that the company had done an analysis which said that they could save 10 lives a year by spending $2 per ladder on a harness, but decided not to for economic reasons?

Would it matter that perhaps the company decided that the $2 would be better spent on non-slip footpads that would save 50 lives per year? Wouldn’t you rather have the company spend the $2 on that? Or should they have spent an additional $2 as well? What if this makes their ladder twice as expensive as the competition’s, and therefore forces them out of the marketplace? Where do you draw the line?

[Jodi]

SAM STONE says:

Wrong. Good engineering is minimizing risk while building a product that is useful, and can be sold at a profit.

Wrong. Good engineering is minimizing risk while building a product that is useful, with only secondary regard to profit. If you cannot build a product for general human use or consumption that is both minimally safe and profitable, then you should err on the side of safety. In other words, there are certain safety standards below which an industry should not fall, even if doing so is the only way to make a product “profitable.” What juries do not like about RBAs is that they tend to reflect too much concern about “profit” and not enough concern about “safety.” The jury is perfectly justified in so concluding. You defend RBAs in general – and unnecessarily, since I don’t have any problem with them – but I don’t hear you arguing that every RBA is done properly, or that the bottom-line profit motive might lead to RBAs with too much emphasis on the “B” to the company and not enough emphasis on the “R” to the consumer. That is generally the context in which RBAs arise as an issue in court.

Ladder manufacturers have drawn a line at some point and said, “This extra small percentage of safety is simply not worth it,” and they are correct for having done so.

They are obviously not automatically correct in every case for having done so. What if the defect is that one leg is shorter than the other three? But, heck! If we ship them, we’ll turn a profit and we think the risk is worth it! Well, a jury may not agree, and it should not be prevented from evaluating the propriety of RBAs on the presumptive ground that it will not understand them.

Good economics = good engineering, AND intelligent safety design, for the simple reason that there is a finite amount of resources that can be allocated for safety.

Whether the amount that has in fact been allocated for safety is reasonable is the question to be determined by the jury. If it isn’t, then the company is negligent and ought to pay for it.

Any time you have finite resources, you should do an analysis to determine where to use those resources to best advantage.

And, again, if your “analysis” is weighed too heavily towards profits and not enough towards risk, then you have a problem. In every company, someone is looking at the RBA and determining that the potential benefit is worth the potential risk, and that somebody is probably motivated by profit. If that motivation for profit overrides the company’s responsibility to safety, they ought to be held liable, and the fact that an RBA was performed should not shield them from liability.

Let me give you an example: Side impact air bags appear to save lives. However, they are only available on a few cars. Why? Are all car companies negligent if they don’t use them? They aren’t universally used because they are expensive. If a car’s main selling point in its low sticker price, then putting a side-impact airbag in the car may kill it in the marketplace, and no one gets the benefit of the airbags ANYWAY. Of course, you can simply pass a law forcing all car manufacturers to use them (or use the legal system like a hammer, which is all too common). So all cars go up in price, and more people stick with their older cars, which are LESS safe than the new ones would have been without the airbags. The bottom line: The fatality rate goes up if you do not follow the recommendations of the Risk-benefit analysis, even if it tells you not to install those airbags.

Let me give YOU an example: A jury determines that side-impact airbags ought to be installed in cars, and that a car manufacturer’s concerns about profit do not excuse failing to install them. This motivates the manufacturer to focus more resources on developing an cost-effective way to install the air-bags and put the cars back on the market. In other words, a jury may reasonably find that a company has an obligation to provide a safer product, regardless of profit. You appear to believe that an RBA must in all cases be followed and in all cases will justify a particular course of action. This is not correct and should not be correct. And, again, the fact that juries reject RBAs in cases just like this does not mean they don’t understand them. (As an aside, an RBA such as the one theorized above might provide a “good faith” defense to a manufacturer, even if a jury concludes the RBA should not have been followed.)

EVERY ONE of these decisions involves a risk-benefit analysis. Each choice might only cost a couple of bucks and a few ounces of weight, but there are hundreds or thousands of those choices. If you did them all no one could afford the car and it would be a lumbering pig. So you do a risk-benefit analysis to try and figure out which ones are worth doing and which ones aren’t. But God help you if one of the rejected choices winds up in court.

“God help you”? At this point, I’d like to ask you to back up your half-baked theory that juries do not understand RBAs and that they are not justified, in some cases, in rejecting them. Have you been involved in such cases? Can you cite some such cases? Because you are now speaking in such sweeping generalizations as to indicate personal knowledge of a particular course of action of rejecting RBAs and/or juries reaching the wrong result out of technical stupidity. I’d be happy to look at those cases if you’d be so kind as to cite them.

Engineering is all about making tradeoffs, including tradeoffs in matters of safety.

Well, duh. The point is that some of those tradeoffs are defensible, and some are not. If a manufacturer is sued, then it becomes a matter for the jury to determine whether the manufacturer was reasonable in making the tradeoffs it did in fact make. To theorize that a jury is too stupid to make that determination is, again, patronizing. And futile, since a jury of your general peers is all you’re going to get anyway, and rightly so.

Risk-Benefit analysis is an attempt to allocate finite resources to where they do the most good, and this includes profitability (it HAS to - there’s no point in building the world’s safest car if no one will drive it).

But surely you see the enormous degree of play in the space between making and marketing a cheap death trap and making and marketing a safety cage that no one can afford. At some point, the tradeoff between safety and profit is not reasonable, and making that tradeoff anyway constitutes negligence.

And if you do a risk-benefit analyis properly, you will ALWAYS come to a point where you draw the line and say, “This much expenditure on safety, and not a penny more”. They are not an evidence of wrongdoing, they are evidence that a company considered safety factors in every area of the design and made the best decisions it could.

They are, in some cases, evidence of wrongdoing, if that line was drawn in the wrong place. They may as easily show that the company cut corners to maximize profits as they may show that “a company considered safety factors in every area of the design and made the best decisions it could.” In other words, you are theorizing a company that is manifestly not negligent and theorizing a jury (wrongly) finding it negligent anyway. You are not acknowledging that the same type of evidence may show that the company was negligent and that a jury could be correct in so finding.

The problem with juries is that they see the RBA itself as prima facie (sp?) evidence of wrongdoing. They believe that all defects should be repaired if a company knows they exist, and only tend to let companies off the hook if they can show that the defect was unknown, and good engineering practices were used. Well, this just isn’t the real world. It’s a fantasy constructed by the media, helped along by plaintiff’s lawyers, and used on juries who lack the understanding of statistical methods to make a proper decision.

Again, at this point I’d like to see some cites to back up your assertions. Juries do not ALWAYS (or even most of the time) see RBAs as prima facie evidence of negligence. They are perfectly capable of recognizing the need for design tradeoffs; they are simply not as willing to draw the line where the company draws (or drew) it. In other words, juries like to see companies err on the side of safety, and they CORRECTLY penalize companies they believe erred on the side of profit. Your theory that juries lack the fundamental understanding of RBAs is flawed, in that you assume that if they understood them, they would, in all cases, accept them. This does not necessarily follow.

If a Risk-Benefit analysis is a good and proper function of engineering science, then a jury must be ignorant of the facts if it doesn’t “like” them.

This does not follow, either. Simply because RBAs are “a good and proper function of engineering science” does not mean they are in all cases done correctly, or correctly implemented.

The jury sees them as ‘trading dollars for lives’, and so do you.

Because, manifestly, that’s what they are.

But every product on the market that carries any risk at all is a collection of tradeoffs between dollars and lives. EVERY one.

The question, of course, is whether that tradoff, in a particular case, is a reasonable one. Sometimes it is; sometimes it isn’t. There’s nothing about that question that is inherently so complicated a jury of laypeople cannot grasp it. It just appears that, sometimes, they don’t reach the same result you would as a professional if the field. Well, tough break. They don’t judge doctors the same way doctors would, or lawyers the same way lawyers would, either.

And it has to be that way. The belief that products can be made perfectly safe is a denial of reality.

Again, we are not dealing with an area of absolutes. We are not forced to choose between perfectly dangerous and perfectly safe. The “tradeoffs” you have repeatedly noted must be made are not, in all cases and inherently, made correctly.
GADARENE says:

There’s a degree of reasonableness involved that makes RBAs for ladders acceptable to most people and RBAs for cars with a life-threatening defect repugnant. I think that’s what jodih is saying–we can usually count on juries to exercise that degree of reason in distinguishing between the two.

Precisely.

[Sam_Stone]

But now you’re changing your premise. I was specifically arguing against the notion that an RBA is prima facie evidence of wrongdoing. Now you’re saying the same thing that I was - an RBA is simply a tool for measurement of risk/cost, and whether a company was negligent or not depends on the results of the RBA and whether or not the company ignored those results or weighted them too far on the side of profits.

But earlier you said,

Again, risk-benefit analyses (or cost-benefit analyses) are a good example of this. Juries get RBAs; they just don’t like them.

and…

Most juries are perfectly able to grasp the idea of weighing the cost to the company (in dollars) of fixing a defect versus the cost to the company (in dollars) of living with the consequences of leaving the defect in place – and knowing that, statistically, X number of people are likely to be injured or killed because of the defect. How is that analysis good engineering? Good engineering is fixing the defect. RBAs are good economics, but “good economics” is a weak defense when faced with a dead child, for example.

and…

Ah, risk-benefit analyses. I think there’s a good argument that RBAs are almost always prejudicial. Why? Because the average person does not like to see a company toting up the costs of human life – even one – versus company profits. Is it an accepted statistical means of determining the whether a particular course of action (a recall or a repair) is justified in terms of money? Yes. But it remains really, really unsavory, for obvious reasons. The problem is not that juries do not understand the workings of RBAs, but that they do not like them.

This last comment of yours agrees completely with what I was saying. RBA’s are reasonable and prudent, and by definition will not ALWAYS wind up on the side of safety (or no ‘analysis’ would be required - if you saw something that improves safety by any increment, just do it).

I would simply argue that if juries do not like them, it’s because they truly do not understand them. They may understand the workings, but not the philosophical and scientific underpinnings which DEMANDS that companies often must trade lives for dollars.

“Because the average person does not like to see a company toting up the costs of human life – even one – versus company profits.”

But an average safety or human factors engineer or scientist does it every day. He has to. Is it ‘unsavory’? Perhaps. But so is cutting into the human body, and doctors do it every day. It’s just part of what a professional has to do.

You know, even government regulation is firmly based on RBA’s. Safety standards are set by doing an RBA and deciding how many dead people are acceptable. This is simply an everyday part of basic engineering, like doing stress tests and load analysis. Are those ‘unsavory’? No. They’re just tools. And so is an RBA. The fact that lay juries are immediately prejudiced by them (as you yourself admitted) means there’s a major flaw in the system.

[Jodi]

I have not changed my “premise” in the slightest. My “premise” was and remains that juries do not like RBAs, but that basic distaste (which is purely anecdotal, anyway) does not mean that they do not understand them.

Juries don’t like RBAs. They don’t like insurance companies. They don’t like the government (if a party). They don’t like the idea of “rehabilitation” as it applies to people with criminal records. They don’t like “registration” programs (at least out here), unless you’re registering sex offenders – then they like them. They don’t like male lawyers to be aggressive when dealing with female witnesses. They don’t like female lawyers to be aggressive at all.

Look, the fault in your premise is your assertion that a personal prejudice against something – even if held by large segments of the population – means that the item or idea producing the prejudice is not truly understood. Again, it is not my experience that this is true. Juries get RBAs; they get insurance companies; they get the idea behind rehabilitation. They just don’t like them or trust them or believe that they work. An attorney faced with such a prejudice has to tailor the evidence to address the prejudice; they cannot merely explain the mechanics of the RBA repeatedly, they must explain why the RBA was a good idea in that particular case, how the RBA was correctly conducted, and why the company was justified in relying upon it. As an attorney, you must recognize that you are facing a probable or potential prejudice and you must defuse it, not by explaining the hows of it – which, contrary to your assertion, juries can grasp – but by explaining the whys – why they are used, and why they are a good idea.

My point is that it is almost always a convenient out – not just in the law but in any field involving communication – to say “these people did not agree with me; therefore they did not understand me” or, similarly, to say “these people did not understand me; therefore they are stupid.” Ninety-nine times out of a hundred, the problem is that I, as a lawyer or a teacher or whatever, have not explained it well enough or, in the alternative, that I have not addressed the concerns people have with a particular idea – concerns that manifest themselves as an inherent if unspoken prejudice. But I have never said that juries who do not “like” a particular idea a priori do not understand it, and I continue to think it’s a dangerously patronizing, as well as erroneous, thesis.

Juries have prejudices. Individual people have prejudices – all of us do. That’s not a “major flaw” in the system; it’s just human nature. And if I, as an attorney, spent my time trying to explain the mechanics of something ad nauseam in an effort to make the jury “understand” it, instead of trying to address the prejudice I sense in an effort to make the jury “like” it (or at least accept it), then I have made a serious tactical error.

[David_B]

Jodi: Referring back to your last message to me (before the conversation moved on), it sounds like we’re in agreement, but I probably didn’t do a very good job of explaining (technically) what the judge did.