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Guest Post: Manufacture of Doubt

2013 July 29

By: Daniel S. Goldberg, J.D., Ph.D.

Thanks so much to Paul for the pulpit! By way of introduction, I’m Daniel S. Goldberg, and I’m an assistant professor in the Brody School of Medicine at East Carolina University.  I’m trained as an attorney (with experience as a defense attorney in mass-tort litigation), as an historian of medicine/public health, and as a public health ethicist.  I’ve been interested in ethics and concussions in American football for at least the last five years.  You can read more about my work here.

A prior paper of mine, published in a bioethics journal in 2008, addressed the ubiquitous conflicts of interest that exist in the N.F.L. and how they influence concussions top to bottom, from league and team policy down to individual treatment and return-to-play considerations.  If you’re interested, you can download the full paper free of charge here.

I was fortunate to have a second paper on the subject published in the last month or so, this one addressing the strategy apparently deployed by the NFL and most other agents of regulated industry involved in 20th c. occupational health disputes.  This strategy is known as the “manufacture of doubt.”  It involves the mobilization of an enormous amount of resources all devoted to creating doubt regarding both the probability of the harm in question occurring and the magnitude of that harm if it were to occur.  By creating doubt in the policy arena, industry can argue that given the uncertainty, regulation is unwise pending the development of further facts.

As I note in the article, this is a particularly poor standard for public health policy because of the undeniable fact that epidemiologic evidence is always uncertain.  That uncertainty inheres in the field itself because determining epidemiologic causation is one of the more difficult tasks we face.  If we waited for knock-down drag-out proof that a given exposure caused a given health problem, we would barely implement any public health policies at all.  These facts are encapsulated in what is known as the precautionary principle, which basically means that when we have a serious public health risk, we intentionally relax our evidentiary standards and intervene to ameliorate the risk substantially.

If the manufacture of doubt sounds familiar to you, it should — it has been used most vigorously and most effectively by the tobacco industry.  David Michaels, an epidemiologist and twice-appointed executive official, actually entitled a book on the subject, taken from a memo written by a tobacco company official: Doubt Is Our Product.

A few more additional points.  First, although this blog is devoted to the NFL concussion litigation, I want to insist that what we are dealing with is a bona fide population health problem.  This is not simply a private employment dispute (although it is that).  Literally millions of children and adolescents play American football, and it is undisputed that developing brain are at higher risk of mTBI and of more severe sequelae as a result of those concussions.  Football-induced mTBI is a major public health problem.  (And TBI in general is distributed highly unequally along lines of class and race, a point I develop in the article).

Second, information is enormously powerful in context of public health.  If the information the tobacco industry possessed regarding the true dangers of tobacco consumption had been widespread public knowledge in the 1950s, 1960s, and 1970s, it is difficult to contest that many hundreds of thousands of lives could have been saved (a number that represents only a fraction of the active smokers during this time).

So if we have a major public health problem, and if the regulated industry in question possesses information valuable to informing public discourse on how the risk of its product should be evaluated and managed, it dramatically undermines effective public health leadership for the industry to keep that information private.  (We all know why industries involved in mass-tort litigation do so – but this is an ethical claim, that they ought not do so).

Finally, this last point leads me to the current posture of the litigation.  Most of the commentary on the NFL concussion litigation focuses on the potential dollar amount of the payout, either as judgment or settlement.  If I am advising the NFL – and I am most certainly NOT – I am less concerned about this amount.  The NFL basically prints its own money.  Even a mammoth settlement or judgment is unlikely to derail the finances to the point that the entire endeavor itself becomes questionable (which did happen in the case of the asbestos industry).  Although this is beyond my area of expertise, my understanding is that true valuation experts tend to think that the goodwill a company possesses is literally its highest-value item.  It is all about the brand, as they say.

And I cannot for the life of me understand how the NFL is willing to go through the discovery process, which would be likely to result in millions of pages of documents becoming public record.  This process has done far more to tarnish the public image of the tobacco industry than any settlement ever could.  So I have trouble seeing why the NFL would be willing to risk the public disclosure of its knowledge and conduct regarding the risks its workers faced of brain injury.

So …  that’s it for now.  If Paul is kind enough to permit me, I may offer another blog post or two in the upcoming weeks, especially as I have begun to write yet another paper on this subject.  But I’d like to hear from y’all.  What do you think?




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