By Tara Hoke
This hypothetical is based on material from two actual case studies, a loss-mitigation case history published by ASFE/The Best People on Earth and a case brought before the ethics committee of a surgeons'' association. Although the second case involves expert testimony in a medical malpractice setting, the ethical issues involved also apply to civil engineering. For a copy of ASFE Case History No. 66, visit ASFE's online store at www.asfe.org or call (301) 565-2733. For information about the surgeons' case, see Austin v. AANS, 253 F.3d 967 (7th Cir. 2001).
Situation
A residential developer contracts with a geotechnical engineering firm to design rockery walls as a landscaping element of a large subdivision. Some five years after completion of the project, the community's homeowners association observes that many of these walls have begun to exhibit evidence of failure. When the developer refuses to accede to the association's demand that repairs be carried out, the association files suit against the developer and its contractors.
While the defense compiles significant evidence that the failures are a result of normal wear and tear that has been accelerated by the association's complete disregard for the maintenance and upkeep requirements prescribed by the design firm, the plaintiff offers expert testimony from a structural engineer and ASCE member. The expert witness expatiates on his many years of experience as a structural engineer and testifies that, in his opinion, the failures are a result of negligence in the design and construction of the rockery walls. In support of this statement, he quotes heavily from two papers published in a national engineering journal and cites several instances in which the subdivision's rockery walls do not comply with the recommendations put forward in these publications.
On cross-examination, it becomes clear that the structural engineer has virtually no experience in the construction of rockery walls and possesses little understanding of the principles behind their design. Moreover, the two papers on which the witness relied were inapplicable to the walls in question because they made numerous assumptions about the nature of the soil involved, a fact the witness either misunderstood or misrepresented when citing them to support his conclusions.
The defendants ultimately prevail at trial, and a member of the geotechnical firm questions whether the structural engineer's irresponsible testimony violated the ASCE Code of Ethics.
Question
Would an ASCE member violate the ASCE Code of Ethics by testifying as an expert outside his or her area of practice and by basing the testimony on unsupported opinions and inapplicable research papers?
Discussion
Canon 3 of the Code of Ethics states that "engineers shall issue public statements only in an objective and truthful manner." Two of the five guidelines to practice for this canon explicitly refer to public statements given in a litigation setting. Category (b) in the guidelines reads as follows: "Engineers shall be objective and truthful in professional reports, statements, or testimony. They shall include all relevant and pertinent information in such reports, statements, or testimony." Moreover, category (c) has this to say: "Engineers, when serving as expert witnesses, shall express an engineering opinion only when it is founded upon adequate knowledge of the facts, upon a background of technical competence, and upon honest conviction." The concept of technical competence is also reflected in canon 2: "Engineers shall perform services only in areas of their competence."
The practice of engineering is one in which professionals can and often do disagree about causes, methods, and other instances of engineering judgment. But when an engineer agrees to serve as an expert witness and to express a professional opinion on an engineering matter, ASCE's Code of Ethics requires that the engineer be qualified to offer this testimony by education or experience and that his or her testimony be honest and impartial, be based on a thorough understanding of the facts, and be free from improper influences or deceptive practices. As such, any ASCE member who willfully or carelessly accepts engagement as an expert witness on a subject outside his or her area of competence or who fails to testify in a reasoned, truthful, and objective manner may be found to have violated canons 2 and 3 of the Code of Ethics.
In Austin v. AANS, the ethics committee of a surgeons' association held that one of its members had held himself out as an expert in an area in which he was not competent to do so and had misrepresented scientific research to present misleading testimony as an expert witness. Accordingly, it found that the member had violated the association's code of professional conduct, and it voted to suspend him for a period of six months. The member responded by filing suit against the association, claiming it had wrongfully punished him as a deterrent to other members who might consider testifying against fellow professionals in malpractice litigation. But the court disagreed, finding that the association had the right to police the activities of its members and that a member's peers were better suited than a court of law to judge when the member's activities fell short of the profession's ethical standards.
ASCE's Guidelines for Forensic Engineering Practice, developed by the Technical Council on Forensic Engineering, provide a detailed discussion of the ethical considerations that come into play when one testifies as an expert witness. In addition to assessing the qualifications necessary in performing a forensic analysis and discussing ways of ensuring that testimony is sound in theory as well as factually, the publication also includes information about the court system and courtroom presentations. Forensic engineers as well as other members seeking guidance on offering expert testimony may purchase this manual through ASCE's online bookstore.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
© ASCE, ASCE News, July, 2009
