{"id":1482,"date":"2013-07-29T07:57:56","date_gmt":"2013-07-29T12:57:56","guid":{"rendered":"http:\/\/nflconcussionlitigation.com\/?p=1482"},"modified":"2013-07-29T07:57:56","modified_gmt":"2013-07-29T12:57:56","slug":"guest-post-manufacture-of-doubt","status":"publish","type":"post","link":"http:\/\/nflconcussionlitigation.com\/?p=1482","title":{"rendered":"Guest Post: Manufacture of Doubt"},"content":{"rendered":"

By: Daniel S. Goldberg, J.D., Ph.D.<\/strong><\/p>\n

Thanks so much to Paul for the pulpit! By way of introduction, I\u2019m Daniel S. Goldberg, and I\u2019m an assistant professor in the Brody School of Medicine at East Carolina University.\u00a0 I\u2019m 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.\u00a0 I\u2019ve been interested in ethics and concussions in American football for at least the last five years.\u00a0 You can read more about my work here<\/a>.<\/p>\n

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.\u00a0 If you\u2019re interested, you can download the full paper free of charge here<\/a>.<\/p>\n

I was fortunate to have a second paper<\/a> on the subject published in the last month or so, this one addressing the\u00a0strategy apparently deployed by the NFL and most other agents of regulated industry involved in 20th<\/sup> c. occupational health disputes.\u00a0 This strategy is known as the \u201cmanufacture of doubt<\/a>.\u201d\u00a0 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.\u00a0 By creating doubt in the policy arena, industry can argue that given the uncertainty, regulation is unwise pending the development of further facts.<\/p>\n

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 <\/i>uncertain.\u00a0 That uncertainty inheres in the field itself because determining epidemiologic causation is one of the more difficult tasks we face.\u00a0 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.\u00a0 These facts are encapsulated in what is known as the precautionary principle<\/a>, 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.<\/p>\n

If the manufacture of doubt<\/a> sounds familiar to you, it should — it has been used most vigorously and most effectively by the tobacco industry.\u00a0 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>.<\/p>\n

A few more additional points.\u00a0 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.\u00a0 This is not simply a private employment dispute (although it is that).\u00a0 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.\u00a0 Football-induced mTBI is a major<\/i> public health problem.\u00a0 (And TBI in general is distributed highly unequally along lines of class and race, a point I develop in the article).<\/p>\n

Second, information is enormously powerful in context of public health.\u00a0 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).<\/p>\n

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.\u00a0 (We all know why industries involved in mass-tort litigation do so \u2013 but this is an ethical claim, that they ought <\/i>not do so).<\/p>\n

Finally, this last point leads me to the current posture of the litigation.\u00a0 Most of the commentary on the NFL concussion litigation focuses on the potential dollar amount of the payout, either as judgment or settlement.\u00a0 If I am advising the NFL \u2013 and I am most certainly NOT \u2013 I am less concerned about this amount.\u00a0 The NFL basically prints its own money.\u00a0 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).\u00a0 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.\u00a0 It is all about the brand, as they say.<\/p>\n

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.\u00a0 This process has done far more to tarnish the public image of the tobacco industry than any settlement ever could.\u00a0 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.<\/p>\n

So …\u00a0 that\u2019s it for now.\u00a0 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.\u00a0 But I\u2019d like to hear from y\u2019all.\u00a0 What do you think?<\/p>\n

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By: Daniel S. Goldberg, J.D., Ph.D. Thanks so much to Paul for the pulpit! By way of introduction, I\u2019m Daniel S. Goldberg, and I\u2019m an assistant professor in the Brody School of Medicine at East Carolina University.\u00a0 I\u2019m trained as an attorney (with experience as a defense attorney in mass-tort litigation), as an historian of […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ngg_post_thumbnail":0},"categories":[1],"tags":[29,16,288,287,289,4,290,286],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1482"}],"collection":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1482"}],"version-history":[{"count":1,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1482\/revisions"}],"predecessor-version":[{"id":1483,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=\/wp\/v2\/posts\/1482\/revisions\/1483"}],"wp:attachment":[{"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1482"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1482"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/nflconcussionlitigation.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1482"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}