Exposing the "Experts" Behind the Sexy Exposés: How Networks Get Duped by Dubious Advocates

By Walter Olson
The Washington Post (Sunday "Outlook"), February 28, 1993

As NBC begins its internal probe of its rigged-crash-test fiasco, other networks and press outlets will be taking a hard look at their own coverage of safety-exposé stories. When they do, they will find much to unsettle them.

CBS, for one, may want to revisit its 1986 "60 Minutes" segment on supposed "sudden acceleration" in Audi 5000s. That show featured real-life footage almost as riveting as that on "Dateline": An Audi was shown taking off like a bolt without a foot on the accelerator -- seeming proof that the vehicle could display a malignant will of its own. Ed Bradley told viewers that, according to a safety expert named William Rosenbluth, "unusually high transmission pressure could build up on certain model Audis causing the throttle to open up . . . . Again, watch the pedal go down by itself."

Frightening stuff, eh? "What the viewers couldn't watch," wrote Peter Huber in 1992's "Galileo's Revenge," "was where the 'unusually high transmission pressure' had come from. It had come from a bottle. Rosenbluth had drilled a hole in the Audi transmission," through which he'd pumped in air or fluid at high pressure. (CBS still defends its segment.)

Clearly, NBC isn't the first network to run a dubious safety expose'. It's just the first to get nailed. For years the networks have relied on a small circle of outside experts to shape their coverage of safety issues. Most of these experts turn out to be deeply involved in the business of suing the companies and institutions targeted by the adversary coverage. And the result is likely to be a widening circle of embarrassment for the media.

NBC had to eat two separate helpings of crow: first for producing the rigged video, then for holding out far too long in its defense. In doing so, it was led astray by its outside experts, especially Bruce Enz of The Institute for Safety Analysis, hired by NBC to conduct the crash tests, and Byron Bloch, interviewed as an expert on the "Dateline" segment and active at the crash-test scene:

Enz's group rigged the truck with hidden incendiary devices, detonated by remote-control radio. Later, Bloch and others defended the idea. This was "among accepted test procedures," noted Clarence Ditlow of the Center for Auto Safety, raising the eyebrows of many safety researchers.

Enz and Bloch assured NBC that the fire was actually set off by the filament of a broken headlamp, which conveniently meant there was no need to tell viewers about the Mother's-Little-Helper rockets. (According to Automotive News, GM scientists found in a super-slow-motion video analysis that the fire started near the rockets, not the headlamps.) The network also cited the experts as its source for having told viewers that a "small hole" had been poked in the GM gas tank at impact. Later tests showed the recovered tank fully intact.

And so forth. The use of a wrong-model, ill-fitting gas cap (it apparently popped out on impact) would have been noticed beforehand, if at all, presumably by those who groomed the truck for its big moment on film. NBC reporters would probably not have relied on their own direct observation to come up with what were later shown to be serious underestimates of the actual crash speeds. One bad decision was presumably wholly NBC's to make: showing only a brief snippet of the fire, which in fact burned out in about 15 seconds, after it exhausted the fuel ejected from the truck's filler tube. NBC's camera angle also made it hard for viewers to see that flames were not coming from inside the truck itself, as might have been expected had its gas tank really burst.

Given a fuller look, viewers might have concluded that you can get a fire from just about any vehicle if you bash it in a way that forces gas out of its filler tube and then provide a handy source of ignition.

As part of the settlement of its lawsuit with NBC, GM dropped a second suit against Enz and his institute, which means the experts there may never have to answer some questions about what happened at the crash site.

Enz's lawyer has argued that whether or not GM had kept up its suit, it would have no right to ask the outside consultants questions about such matters; they are supposedly wrapped in legal immunity as "news-gatherers."

What kind of experts did NBC use, anyway? Byron Bloch, for one, has an interesting set of professional specialties. On the one hand, he's a frequent network consultant on auto safety -- "a combination of source, field producer and technical adviser for ABC-TV in its auto safety coverage," reports Autoweek, which notes that he's assisted seven ABC segments on auto safety hazards, three of them since 1990.

When not doing paid media consulting, Bloch is perhaps the single best-known hired expert witness in injury lawsuits against automakers. He doesn't challenge reports that he lacks formal training in auto safety or engineering, and he acknowledged in a 1980 case that his resume' listed a degree he didn't have. Still, he's appeared in court to testify about alleged defects not just in cars but in products ranging from coffee pots to railroad cars. He also offers $ 400-per-person seminars for trial lawyers, promising the scoop on such topics as "Key Graphic Exhibits for Trial."

Enz, of The Institute for Safety Analysis, turns out to be another frequent expert testifier against GM -- and indeed against every major car maker in the U.S. market. He's not an engineer either, nor, he says, are any of the 25 staff members of his institute, which is a for-profit organization.

Then there's Ben Kelley, another frequent witness, who has boasted that NBC used Enz's group "at our suggestion." Kelley himself has enjoyed success providing crash-test footage to TV producers. When CBS's "Street Stories" questioned the reliability of safety belts last fall, it relied heavily on Kelley's Maryland-based Institute for Injury Reduction, which the show blandly described as an "auto safety consumer group." Marion Blakey, head of the National Highway Traffic Safety Administration, flayed the resulting coverage as "factually inaccurate."

The network's description of Kelley's group was incomplete, too. As Kelley acknowledges, his group was founded by a small group of trial attorneys, and it continues to be largely supported by them. In a recent fundraising letter, Kelley proposed carrying out a new series of GM-truck crash tests, the results of which, unlike NBC's proprietary tests, could be distributed to the public and used in litigation. The tests would follow "a modified design further enhancing the likelihood of a real-world impact resulting in fire." Note the word "further."

Outside packagers can assemble a safety-expose' show from modular elements, as it were. First tends to come the grieving family who has lost a child or, failing that, another member. Chances are that family will have a lawsuit pending; the broadcast may be aired, in fact, on the very eve of trial. Then come interviews with expert witnesses and (unless they wish to remain offstage) plaintiff's lawyers, the tone alternating between fierce denunciations of the opponent and calmer moments of tell-us-how-bad-this-is. For a wrap-up, someone can be quoted saying that the only way to change the target's callous behavior, for the sake of future victims, is for it to pay money in lawsuits. Network producers can save themselves a whole lot of work when they buy (or accept gratis) this kind of package. In fact, there's only one element they really have to add themselves: the "balance," in the form of an interview with officials of the target, edited down to a few miserable or evasive-sounding moments.

The "Dateline" show followed the usual script with monotonous precision, which makes a laugh of NBC's continued claims that the piece was somehow a journalistic triumph aside from the rigged video. Because the opposition case was developed at minimal length, viewers would hardly have guessed that, according to federal statistics, the GM trucks under attack actually have a lower rate of fatal crashes than the substantial majority of vehicles on the road, that their death rate is pretty much the same as that of Ford's full-size trucks and that when it comes to side-impact crashes -- the kind at issue on the show and in the lawsuits -- the GM trucks actually have a slight edge over Fords.

But then, big lawsuit campaigns are often curiously unrelated to overall safety statistics. Audi, too, had one of the best crash records on the road; eventually a government probe confirmed that the reason cars suddenly accelerate is that drivers mistakenly press the accelerator. (Rosenbluth, of the "60 Minutes" hidden-pump escapade, was an expert witness against Audi too.) Definitive vindication for any defendant, however, is rare; more often the cloud never really goes away.

It's an ill-kept secret that adversary journalism relies on information from partisan or interested sources. That's no scandal in itself. Equally clear, though, is that unless the press brings a skeptical intelligence to bear on its partisan sources, its reputation will be at those sources' mercy.

Some story ideas plainly engage more of that skeptical intelligence than others. Suppose a video arrived on a producer's desk purporting to show that GM trucks were bad -- put out by a rival truck maker. Almost any news person's antennae would begin waving about in suspicion, since the commercial motivation of the attack would be clear.

The thing is, suing people is a business too, and a remarkably lucrative one. Lawyers and their associates have become the supreme negative sources in American journalism, all too often with no acknowledgement that they have their own interests in the way stories turn out. Under published estimates of GM's exposure in the truck-crash cases, the contingency fees on the plaintiff's side could reach several hundred million dollars.

Hard as it may be now to believe, as recently as a generation ago the prevailing rules of legal ethics discouraged lawyers from making contact with the press except in a fairly narrow list of circumstances, such as when a client's affairs had already come under scrutiny and needed to be explained. Otherwise, the fear went, lawyers would use the press to inflame the public against their opponents, boost the size of awards and stir up new suits. Today, that fear may be realized. We may be entering an age of prepackaged video defamation, of hit jobs in a box.

NBC got caught this time. But the networks' abject reliance on planted stories from the litigation industry has long been a scandal -- to borrow the "Dateline" segment's title -- waiting to explode.

*****

Walter Olson, a senior fellow at the Manhattan Institute, is the author of The Litigation Explosion.

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