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Questions remain Ethicists debate independence of Earnhardt report
By Mike Fish, CNNSI.com When NASCAR went public with its long-awaited report into the accident that killed Dale Earnhardt, officials cast it as the work of independent experts and dubbed their finished product the most comprehensive investigation in motor sports history. NASCAR leaders let it be known they spent more than $1 million on the investigation. But the question of how "independent" their independent experts really were is, according to prominent ethicists, worthy of debate since it at least raises the possibility of the appearance of a conflict of interest. The ethicists' primary concern centers on relationships NASCAR enjoys with its lead independent experts -- Drs. James Raddin and James Benedict of the San Antonio-based Biodynamic Research Corporation and professors Dean Sicking and John Reid of the University of Nebraska's Midwest Roadside Safety Facility. "'Independent' means that it is somebody that is not going to have a stake in the outcome, but also is not going to have a stake in getting future business or already have a relationship," said Marcia Sage, an attorney and founder of the Sports Ethics Institute. "They can't function in an auditory capacity as well as an advisory role. If they're hired to advise and also hired to perform the investigative function, they may be wearing too many hats." Here, it is not a question of personal integrity or challenging scientific research as much an issue of the experts' total independence. Before the Earnhardt report was released last month, Raddin had already secured additional NASCAR work to oversee a study of occupant restraint systems. Benedict, a BRC mechanical engineer, had earlier served as a defense witness for NASCAR at a 1992 trial involving an unsuccessful negligence suit brought by the family of driver Rick Baldwin. BRC has a reputation for defending automakers, billing them $65 million from 1991 to 1995 to testify as experts in cases brought by injured motorists, Strategic Safety News reported last year. As for Sicking, the University of Nebraska safety facility under his direction has had a relationship for more than a year with NASCAR, conducting crash tests and working on the development of soft walls. Although NASCAR has refused to discuss it, contracts listed in the Earnhardt report indicate Sicking has earned more than $600,000 since 1999 in contracts with the Indy Racing League, which enjoys a cozy relationship with NASCAR. The relationship is punctuated by co-ownership of the new $130-million Chicagoland Speedway, along with the annual running of the Winston Cup Brickyard 400 at the Indianapolis Motor Speedway, owned by IRL founder and president Tony George, and the IRL racing at tracks owned by NASCAR's sister corporation. The IRL appears to be the research facility's largest privately funded project. "It seems that NASCAR, in addition to expertise, should really want to buy credibility," said Michael McDonald, director of the Centre for Applied Ethics at the University of British Columbia. "In many of these cases it is not just whether there is bias on the part of the expert that you bring in, but whether there is even the appearance of bias. It's a bit like hiring an accountant to do an audit. You have to have independence from the people that you are auditing. That is important because you want to be believed at the end of the day. "But really, the use of experts in courts and everything else is plagued with this kind of problem. It goes on in the world of business all the time." NASCAR's two-volume accident report treated the sanctioning body's positions favorably while taking issue with several key findings of court-appointed independent expert, Dr. Barry Myers, a medical doctor and biomedical engineer. Along with clearing Earnhardt, the legendary driver, of blame for possible improper mounting of his restraint system, the report also found:
The Washington law firm of Baker Botts L.L.P. had the charge of hiring the doctors, scientists and academics -- all of whom have outstanding credentials. And before releasing the report, NASCAR arranged for peer reviews from two separate medical doctors. As for questions about the independence of the report, NASCAR vice president Jim Hunter said: "Well, from a medical standpoint, there were other independents who looked at the work of Dr. Raddin. Peer reviews. And those speak for themselves. As far as [Sicking], we had a need going back to energy management and soft wall technology, what we need to do with barriers and whatever. To think that someone would do that without being paid for it, particularly if that is how someone makes his or her living. ... So, I don't have any quarrels with using a guy who is recognized by his peers as one of the best in the industry." Again, it is important to repeat that no one is challenging the integrity of the work, but rather if the experts operated at enough of an arm's length distance from NASCAR. Since the report could not reach specific conclusions on some key questions, did the experts go far enough in their research? Did so much of the report address the broken belt because it was a major PR issue for NASCAR? Was NASCAR kept out of the loop until the findings were reached? At the very least, top officials participated in the investigation. The report itself talks of NASCAR president Mike Helton, in an effort to show Earnhardt's belt had torn and not been cut after the crash, using a pocketknife to cut a similar belt during a May 29 demonstration in North Carolina. "It is interesting the belt received that much play [in the report]," said Michael Daigneault, senior consultant and former president of the Ethics Resource Center in Washington. "Was there any pressure to talk more about the lap belt? If there is any pressure to talk more about anything, that is a problem. That renders the opinion less independent." The ethicists agree the prior and on-going relationships need mention in putting the independence of the experts in context. Of course, the $64,000 question in gauging true independence is what NASCAR paid its experts prior to the Earnhardt investigation and the price tag on work the firms subsequently receive. The family-owned NASCAR isn't saying. "How much weight you give it really depends on what the circumstances are and how much money is involved," said Stephen Potts, executive director of the Ethics Resource Center and director of the Office of Government Ethics under former Presidents George Bush and Bill Clinton. "If they're going to have another project and this project is going to net them $500 in revenue, I would say almost ignore it in evaluating it. If it's a $10 million project, then it is an extremely important thing and they would be very concerned about pleasing their client. "Usually it's not $500 or $10 million, but somewhere that different people might differ on whether it would color their judgement." There is no magical figure, no ethical line in the checkbook. What it boils down to is perception. "The ideal situation is the expert is brought in," said Daigneault. "The expert is independent. The expert finds what the expert finds, and then the expert remains completely independent and goes away. But you can see where an expert comes in and does a bang up job, and they go 'Hey, this guy really knows what he's talking about.' And they retain him. "But if there is a significant financial relationship prior to undertaking an investigation, then one could at least question that person's independence. It doesn't mean the person didn't render an independent opinion, though. A person could have those relationships and still render an independent opinion."
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Dale Earnhardt Jr.
