Product Liability and Innovation Managing Risk in an Uncertain Environment (1994) / Chapter Skim
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The Inconvienient Public: Behavioral Research Approaches to Reducing Product Liability Risks
The Inconvienient Public: Behavioral Research Approaches to Reducing Product Liability Risks
Pages 159-189
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From page 159... ...
The Inconvenient Public: Behavioral Research Approaches to Reducing Pro duct Liability Risks BARUCH FISCHHOFF AND JON F MERE There would not be any product liability suits if there were not any people involved with engineered systems.
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From page 160... ...
Quantitative understanding is essential if people are to realize what risks they are taking, decide whether those risks are justified by the accompanying benefits, and confer informed consent for bearing them. Qualitative understanding is essential to using products in ways that achieve minimal risk levels, to recogriizing when things are going wrong, and to responding to surprises.
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From page 161... ...
On the one hand, they must fight to divert a portion of the public's scarce attention to Me potential risks of their products. In so doing, they may ~mperil their financial security by diverting attention from the benefits of TABLE 1 Arenas for Risk Perception Workplace On-thejob safety Right-to-know laws Workers' compensation Neighborhood Rumors Emergency response Community right-to-know Siting Courts Regulation Industry Informed consent Risk-utility analysis Psychological stress Agenda setting Safety standards Local initiatives Innovation Public relations Insurance Product differentiation (by safety)
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From page 162... ...
Indeed, new product introductions can be particularly complicated when the target audience lacks relevant experience. Introductions may be quicker in the short run, but more expensive in the long run, when that audience puts too much faith in its existing knowledge and skills.
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These detailed, systematic empirical studies stand in stark contrast to the casual observations that dominate many discussions of the public's behavior. Perhaps surprisingly, even scientists, who would hesitate to make any statements about topics within their own areas of competence without a firm research base, are willing to make strong statements about the public on the basis of anecdotal evidence.
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From page 164... ...
Good, hard evidence could provide guidance for managing risks, resolving conflicts between the public and technical experts, supplying the information that the public needs for better understanding, and creating technologies whose risks are acceptable to the public (N7iscusi, 1992~. The following section provides a summary of conclusions that can be drawn from studies of risk perception, as well as from the general research literature regarding judgment and decision making.
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From page 165... ...
In risk debates, a stylized expression of this proficiency is finding just enough problems with contrary evidence to reject that evidence as inconclusive. A third thought process that contributes to maintaining current beliefs can be found in people's reluctance to recognize when information is ambiguous.
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Often, they reveal acrimonious disputes between supposedly reputable experts, accusations that scientific findings have been distorted to suit their sponsors, and confident assertions that are disproven by subsequent research (MacLean, 1987; Rothman and Lichter, 1987~. Although unattractive, these aspects of the risk-management process can provide the public with potentially useful clues to how well technologies are understood and managed by industry and regulatory agencies.
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From page 167... ...
As a result of this insensitivity to omissions, people's risk perceptions can be manipulated in the short run by selective presentation. Not only will people not know what they have not been told, but they will not even feel how much has been left out (Fischhoff et al., 1978~.
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From page 168... ...
From an ethical point of view, worrying about the uncertainties surrounding a new and complex technology, such as nuclear power, is different from caring about whether a fixed number of lives is lost in one large accident rather than in many small accidents. People Have Difficulty Detecting Inconsistencies in Risk Disputes Despite their frequent intensity, risk debates are typically conducted at a distance (Krimsky and Plough, 1988; Mazur, 1973; Nelkin, 1978~.
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In such situations, debates about risk are often conflicts between competing sets of risk perceptions, those of the public and those of the experts. As a result, one must ask how good those expert judgments are.
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From page 170... ...
For example, DDT came into widespread and uncontrolled use before the scientific community had seriously considered the possibility of side effects. Medical procedures, such as using DES to prevent miscarriages, sometimes produce unpleasant surprises after being judged safe enough to be used widely (Berendes and Lee, 1993; Grimes, 1993~.
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From page 171... ...
Thus, one might question toxicologists' judgments about social policy just as much as social policymakers' judgments about toxicology (Cranor, 1993~. APPLYING BEHAVIORAL RESEARCH The Interface of Products, People, and Law Manufacturers have a legal obligation to produce products that are "duly safe" (Wade, 1973~.
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To explore this aspect of the law, it is useful to draw an analogy to the FDA licensing process as a prototype for product development, production, and marketing, because this process is the one our society uses to ensure that new drugs are acceptably safer Figure 2 conceptualizes that process to highlight the interaction between product liability law and manufacturers' product decisions. This figure presents a discrete set of steps and a key decision.
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6. Post-market surveillance monitoring product performance in the marketplace and modifying product design, production, and warnings,
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Figure 3 depicts the three bases of a plaintiff's claim for injuries caused by an allegedly defective product, each of which provides an independent and sufficient basis for liability. At the most basic level, sellers will be liable only for injuries caused by Causation ~: Manufacturing Defect Yes / an< No ~ \ FIGURE 3 A logically structured schema of product liability law.
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From page 175... ...
Regardless of the utility of the low-risk product, any known nonobvious or latent risk must be disclosed to avoid potential liability. This obligation may extend to providing subsequently acquired information to consumers after the sale, or even to product redesign, recall, and modification.
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From page 176... ...
Each successive option affords an increasingly central role to concern about the public in the product-stewardship process. The analysis begins with the reactive approach of attempting to predict the extent of problems arising from the way a product is used and ends with the proactive approach of basing product design on concern about risk to users.
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Warning Users about Potential Risks The least that one can do when a product poses nonnegligible risks is to inform possible users, allowing them to determine whether the benefits justify those risks. In some cases, doing so will allow producers to claim
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From page 178... ...
He argued that communications focused on these few side effects would make better use of patients' attention than laundry lists of undifferentiated possibilities. He also argued that his procedure could provide an objective criterion for identifying the information that must be transmitted to ensure that patients were giving a truly informed consent.
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From page 179... ...
For the time being, we must resign ourselves to an imperfect process in which producers gradually learn how to communicate and users gradually learn how to understand. Fortunately, many decisions are relatively insensitive to the precision of perceived risk estimates (von Winterfeldt and Edwards, 1986~.
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From page 180... ...
Merz ful. Unfortunately, risk comparisons are often formulated with transparently rhetorical purpose, attempting to encourage recipients' acceptance of the focal risk-"if you like peanut butter, and accept its risks from aflatoxin, then you should love nuclear power." By failing to consider the other factors entering into others' decisions, for example, the respective benefits from peanut butter and nuclear power, such comparisons have no logical force (Fischhoff et al., 1981; Fischhoff et al., 1984~.
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From page 181... ...
. That misconception was identified in a series of open-ended interviews intended to characterize laypeople's mental models of this risk and confirmed in studies using structured questionnaires (Bostrom, 1990; Bostrom et al., 1992~.
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Effective risk communications can help people to reduce their health risks or to get greater benefits in return for those risks that they do take. Ineffective communications not only fail to do so but also incur opportunity costs, in the sense of occupying the place (in recipients' lives and society's functions)
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From page 183... ...
If users understand the risks and benefits involved, then they have, arguably, given informed consent for whatever happens. Their desire for greater benefit suggests a design opportunity: providing that benefit without sacrificing safety.
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Post-marketing reporting requirements and Food and Drug Administration withdrawal of approval are in §310.305 and §314.150, respectively. Similar requirements for premarket testing of chemical substances may be imposed by the Environmental Protection Agency under the Toxic Substances Control Act, 15 U.S.C.
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From page 185... ...
Cornell Law Review 73:469-533. Carroll, J
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New York University Law Review 65:265-327. Henrion, M., and B
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1991a. An empirical analysis of the medical informed consent doctrine: Search for a "standard" of disclosure.
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1990. Elicitation of Adolescents' Risk Perceptions: Qualitative and Quantitative Dimensions.
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From page 189... ...
Decision Analysis and Behavioral Research. New York: Cambridge University Press.
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