Scientists on Trial

September 30, 2011

According to the Daily Telegraph (2011 WL 18762019), several Italian scientists are on trial for manslaughter after they failed to predict and warn townspeople of a 6.3 magnitude earthquake that killed more than 300 people in 2009. The scientists worked for the government’s Great Risks Commission, which evaluates the likelihood for natural disasters. The commission met at the request of residents of l’Aquila, Italy, to discuss whether multiple small tremors meant the town should prepare for a large quake. The commission concluded that a large quake was unlikely. Six days later, the earthquake hit, killing hundreds and causing millions of dollars in property damage. Scientists the world over are up in arms regarding the possibility that scientists could be held liable, criminally and civilly, for not correctly predicting natural disasters.

How have U.S. courts handled similar claims against scientists? To find out, I expanded my inquiry to other forces of nature like the weather.  I ran the following search in All State & Federal on WestlawNext or ALLCASES on Westlaw:

fail! /4 predict! warn! noti! +10 earthquake storm “natural disaster” volcan!

There were no criminal cases to be found against scientists. However, plaintiffs have been trying to sue the United States National Weather Service (NWS) for decades. (Try, ptn(“national weather service”) in dockets content.) If you are wondering about your chances of success in suing the local t.v. weatherman for not predicting a storm that ruined your wedding, check out the following law review article for a discussion of the duty of care owed by meteorologists: 66 TXLR 683. Cases are typically dismissed under sovereign immunity due to the discretionary nature of the NWS functions, whether brought under the Federal Tort Claims act or common-law tort. The courts held that NWS did have a duty of care but as a government entity, they have immunity.

In a 1999 wrongful death action (4:99-cv-10059), plaintiffs alleged the NWS kept a forecasting center closed following Hurricane Andrew in violation of the Weather Service Modernization Act (Act can be found at 15 USCA 315, PL 102-567).  Even so, the court dismissed the NWS citing the Admiralty Act (formerly, 46 USC App 741-752) as well as Brandt v. Weather Channel, Inc., 42 F. Supp. 2d 1344.

The Law.com article on the Italy case notes:

Prosecutors also point to an unfortunate pre-earthquake interview in which Bernardo De Bernardinis, then-vice chief of the technical department of Italy’s civil protection agency, was asked whether residents should just sit back and relax with a glass of wine. “Absolutely, absolutely a Montepulciano doc,” he responded, referring to a high-end red.

Still, it’s “an inherently unpredictable phenomena,” said Rick Aster  on NPR.  Mr. Aster is president of the Seismological Society of America. He and his colleagues petitioned to have the charges dropped.

OTHER REFERENCES

The Texas Law Review Article reference above is cited by The Tort of Giving Negligent Investment Adivce  by Seth E. Lipner and Lisa A. Catalano. Footnote 82 in 39 UMPSLR 663 notes that the Restatement 2d of Torts sec 552 “has spawned a variety of law review articles about its application to various businesses and professions…” Check out the footnote for that list of articles.