WED, DAY 100: Bazerman on the biases of corporations, executives, plaintiffs and witnesses.
May 5, 2005 11:12 pm by Gene BorioMay 6, 2005, 12:04 AM
Written by Suzanne Lazarus
It was an inauspicious beginning for DOJ witness Max Bazerman, PhD, when he presented his remedies testimony Wednesday. The defense began by immediately filing three objections to Dr. Bazerman’s testimony, all of which focused on its failure to meet the Daubert standards. The Supreme Court’s Daubert vs. Merrell Dow ruling lays out criteria for the admissibility of expert testimony. As such, evidence expressed in expert testimony must: 1) undergo hypothesis testing, 2) present the ‘known or potential rate of error’ associated with using the particular scientific technique, 3) undergo peer review and publication, and 4) be ‘generally accepted in the scientific community’. Judge Kessler overruled these objections but reiterated her strong reservations about the witness, whose qualifications she deemed ‘troubling on many grounds’.
Nevertheless, Dr. Bazerman, a professor at the Harvard School of Business, presented captivating testimony from his area of expertise: behavioral decision research. He had spectators and tobacco lawyers alike following along with near childlike engrossment as he presented models of behavioral theory for corporations and executives.
After presenting an overview of the remedies he was offering as ’suggested recommendations’, he outlined five common biases he believed were evident in the tobacco industry.
The first bias, Self-serving bias, he explained, is the tendency to see data in the way in which one prefers to see it. He gave an example of buyers and sellers in company mergers, where each hires ‘independent’ auditors who then each demonstrate unintentional bias arising from their partisan affiliation.
The second, the Escalation of Commitment bias, occurs when individuals committed to an initial position are more likely to continue to commit to that position. He carried that example over to the tobacco industry to claim that long-standing executives committed to misconduct are more likely to continue misconduct into the future. From this bias came his controversial ‘removal of senior management’ remedy, which will be discussed shortly.
The third, the Confirmation Trap bias, is a tendency for an individual to keep looking for new data to confirm that his or her initial position was accurate. He presented a numbers game that had the courtroom enthralled and subsequently erupting in laughter, to demonstrate this idea that rather than asking whether a theory is correct, researchers tend to seek further confirmation of their initial theory.
The fourth, the Statistical Victim Effect, occurs when people tend to give more weight to the harms done to identifiable victims (people who have been depicted under the media spotlight, for example) than to unidentifiable or ’statistical victims’. For this bias, he presented a model depicting a ‘classic’ dilemma of choosing between two disasters: having a train run over five unidentifiable victims or one. Most people, he explained, will choose the track that would only kill one person. However, in a similar example, where the choice was now between letting the train run over five unidentifiable victims or pushing an identifiable victim (whose features were visible in the model) off of a bridge and into the oncoming train to save the five people, the tendency was to choose to save the one identifiable victim over the five unidentifiable ones. Dr. Bazerman related this to what he believed was the tobacco industry’s tendency to view its teenage customers as ’statistical victims’ to whom they could market their product without moral compunctions, as opposed to viewing them as ‘the kid next door’.
The fifth example was the Framing bias, whereby people tend to make decisions differently depending on how a situation is verbally framed. He gave an example of a scenario where the country is facing a disease outbreak, and two programs are available to contain it , thus protecting the 600 people at risk. Program A would save 200 people, whereas Program B had a 1/3 probability of saving 600 people and a 2/3 probability of not saving anyone. While people overwhelmingly chose program A, when the options were worded differently to say that Program A would cause 400 people to die, and Program B would have a 1/3 probability of no one dying and a 2/3 probability of 600 dying, people chose Program B. He explained that people tend to choose safe gains over risky gains, while choosing to avoid losses at all cost.
In conclusion, Dr. Bazerman remarked that injunctions alone were likely to lead to the defendants continuing their misconduct– a less risky strategy– as opposed to a more risky strategy of completely overhauling the way the industry operates in order to become more concerned with well-being as well as with profits.
As intelligent and sharp-witted as the witness seemed in his testimony, this appearance fell apart when Philip Morris USA attorney Daniel Webb got up to cross-examine him. Mr. Webb’s cross was filled with visible anger and consternation between the two contenders. At times, Mr. Webb’s voice displayed unbridled wrath at the witness’ refusal to answer his accusatory questions with a simple ‘yes’ or ‘no’. For his part, Dr. Bazerman remained on the defensive almost from the get-go and backed up his hesitant answers with lengthy explanations and elaborations, much to Mr. Webb’s dismay, who filed numerous objections on the grounds that Dr. Bazerman was not answering his questions.
Mr. Webb’s principal strategy was to corner Dr. Bazerman into stating something that Mr. Webb would then show to be contradicted by Dr. Bazerman himself in his own extensive writings, from which Mr. Webb drew several illustrative passages. At one point, Dr. Bazerman was forced to admit to a mistake he had made in one of his books — whose source Mr. Webb also drew upon to highlight the mistake. The mistake concerned a criticism of the Bush Administration that claimed Bush had ‘quietly settled’ the tobacco trial upon taking office which, if true, would have precluded the existence of the current trial.
The defense framed its argument around Dr. Bazerman’s controversial recommendation to ‘remove senior management’ within the tobacco industry. Mr. Webb began his attack by focusing on the short time period and limited range of materials at Dr. Bazerman’s disposal when he was developing his expert opinion. The point was driven home over and over again as Mr. Webb questioned Dr. Bazerman on his work between March 10 and March 21 of this year, the only time that Dr. Bazerman utilized to generate his recommendations. Mr. Webb further narrowed this down by several days when taking into account the time Dr. Bazerman had needed to write his report and submit his findings to the government. Mr. Webb then repeatedly asked in various ways whether Dr. Bazerman had begun his research with an ‘open mind’ which Dr. Bazerman confidently affirmed he had. Mr. Webb further delved into this question by asking Dr. Bazerman to confirm that he had not been prompted by the government to suggest the removal of senior management, nor shared his conclusions with the government until he had compiled his report at the end of his extensive research in March, which Dr. Bazerman again forthrightly affirmed. Then came the kicker. Mr. Webb pulled up a court document from March 11–one day after Dr. Bazerman had been retained by the DOJ–which stated that Dr. Bazerman would be testifying on “court-ordered structural changes…including but not limited to the removal of senior management.” Dr. Bazerman still denied that he had discussed this with the government, and simply responded that the defense should “ask the government.”
Building on this accusation that Dr. Bazerman had come to his conclusions at the start of his work and without regard to the literature available to him, the defense charged that he was biased against the tobacco industry and could not present a fair and balanced expert opinion. Mr. Webb quipped that this bias, evident from various passages in Dr. Bazerman’s writings which were brought to the court’s attention, was in spite of the fact that Dr. Bazerman’s presentation was on the alleviation of corporate bias.
Another issue that the defense was eager to draw upon was Dr. Bazerman’s reference to ‘court-appointed monitors’ to advise the court on possible remedies. Dr. Bazerman repeatedly suggested that these ‘monitors’ were simply a term he was using to refer to advisors of some sort, with business expertise, who could help the court make decisions regarding remedies. However, the defense cleverly framed this as a suggestion that the Judge, with all the court documents available to her, was not capable of coming to remedy conclusions on her own, suggesting that Dr. Bazerman was questioning her intelligence. To defend himself, Dr. Bazerman was forced to make several obsequious remarks about the Judge, not least of which was the comment that she was ‘brilliant’, which generated some chuckles across the courtroom.
At last, Dr. Bazerman was forced to weakly defend his recommendations as mere ’suggestions’ or ‘guidelines’ for use by the court and whichever advisors it chose to appoint to help in their decision-making process. Furthermore, Dr. Bazerman was backed into the reaffirmation that, in case of any legal issues concerning access to tobacco industry documents, the court could only assume access to the trial documents that had already been approved. In that case, Mr. Webb questioned, why appoint these expert ‘advisors’ at all?