Lem wrote: ↑Fri Apr 09, 2021 7:43 am
Res Ipsa wrote: ↑Fri Apr 09, 2021 6:21 am
Hi Lem,
It’s probably clearer if I reword the two possible cases:
(1) The NTSB has retained records of incidents that occurred in Utah during 1976, but it just happened that no incidents occurred in November.
(2) The NTSB has not retained records of incidents occurring in Utah in 1976.
The NTSB response is consistent with both cases.
The agency is supposed to have a records disposition schedule, which would tell us when, if ever, records of incidents are to be disposed of.
I appreciate your effort here, but if your response to an NTSB email is to note that what the email said may not be true because such records may or may not have been retained, then there is
literally no end to this endeavor.
Every single piece of information presented that states there was "no record found" can be dismissed by stating that that conclusion might arise from an incomplete database. After so many renditions of this, it becomes nothing more than a perverse manipulation of statistical likelihood. I can see why one might succeed with this strategy in a lawsuit, and why testifying experts must take this tack, but in the consulting that I do where policy decisions have to be made, it would not be considered a helpful or meaningful use of information.
This is no statement on your work here, as I, like Doc, have appreciated the glimpse into this world, I am just noting that other decision makers looking at this kind of data find themselves in a position where they have to make a decision in a timely manner, and the information given so far in this thread makes a pretty solid case that whatever the original incident was, it didn't rise to the level of the most recent iterations of this story. Nelson's published versions of this story that involve anything more than a non-reportable "incident" are simply not believable.
Lem, I must disagree. When drawing conclusions from the absence of evidence, you have to be reasonably certain in your assumption that the type of evidence you’re looking for exists. That’s not a lawyerly tactic — that’s a just the nature of drawing conclusions from absence of evidence.
One of the most tragic cases I worked on was the murder of a young woman by a serial killer. She lived in a mother in law apartment in the basement of my client’s home. The police investigation found there was no forced entry.
The Victim’s parents sued my client, alleging that they failed to provide the security that was legally required. They had hired an expert that investigated the apartment and found requirements, such as door locks, window locks, exterior lighting, etc.
So, what should we conclude from the absence of evidence of forced entry? The plaintiff’s case was that the deficiencies their expert found in the security allowed the killer to enter the apartment without leaving evidence of forced entry.
So, of course, we hired an expert who inspected the apartment. Although he quibbled with a couple of details, he generally agreed with plaintiff’s expert. But, he went a step further and tried to break in to each exterior window and door without leaving obvious physical evidence. He couldn’t.
Plaintiff attorney’s reaction was that, because of deficiencies in the exterior lighting, he’d been able to ambush her at the door. The time of death was well after dark.
My case was the last of the murder. The killer was arrested and tried and convicted of all three. He filed an appeal. An appeal of a trial means there was likely a written transcript of the trial. We checked, and there was.
We ordered the transcript, and I read all the testimony that has to do with the murder in my clients home. And I found a key piece of evidence: the killer and victim knew each other. She’d gone out to lunch with him. She’d introduced friends at work to him.
So, now, what can we reasonably conclude from the absence of forced entry?
The parents didn’t know this. They were so traumatized by their daughter’s death that they left the state during the trial. Their attorney didn’t know because he was so sure he knew what had happened, he didn’t even think to look for alternative factual scenarios to the one he’d decided on.
The case was going to be expensive to try. I would need to basically have to retry part of a murder case. I would need to do extensive discovery to make sure I had credible witnesses to the fact that the two knew each other. So, I persuaded the insurer who was paying me to defend my clients to make a formal “offer of judgment,” which is an on the record, formalized settlement offer, for what it would cost the insurer to try the case. (The insurance supervisor really, really wanted to try the case. My clients, however, had been significantly traumatized by the murder, and wanted the case to go away,)
In response, the parents attorney called me up to berate me about the small amount of the settlement offer. He began to argue about the strength of his case and the like amount of damages the parents would recover.
At some point I interrupted him and said something like “you do understand that they knew each other, right.” He replied “BS! Where are you getting that from?” That is how I learned that he’d never looked at the best source of evidence of what actually happened.
And that was the only time in my career I ever yelled at another attorney. I chewed him out for the trauma he was putting my clients through and the trauma he was going to put her parents through when they would find out, for the first time, what really happened to their daughter.
The offer of judgment was set to expire on the date of our first deposition. I showed up. The witness showed up. The court reporter showed up. And a messenger delivered the formal acceptance of our offer of judgment.
The lesson here is not that I’m some kind of super genius lawyer. I did nothing extraordinary. At the time, I’d specialized in insurance coverage, and I didn’t do tour defense. So, I was out of my element. I was careful to always ask myself “what am I assuming? How could I be wrong?”
Making justifiable conclusions from the absence of evidence is hard. It’s extremely hard when the evidence when the evidence is 45 years old.
None of us knows what the NTSB’s schedule of record disposition (seems to be what the government terminology) is. None of us knows whether the NTSB has retained any paper records of incidents from 1976. And none of us have enough experience with FOIA to know which of the two possible meanings of the response that I listed is the correct one.
Confirmation bias is nasty, especially when we draw inferences from the absence of evidence.
I have a deadline to meet this morning. After that, I’ll post what I think is a FOIA request that would help us fill in the problematic unknowns.
by the way, I read up on FOIA, and learned some interesting but boring stuff that one should know before making FOIA request. If anyone is thinking of making more requests, please shoot me a PM and I’ll be happy to explain.