The June Ethical Dilemma: Ethics and Expert Witnessing

This is the June 2023 edition of our monthly series of Ethics case studies titled What Do You Think? This series is comprised of case studies from NSPE archives, involving both real and hypothetical matters submitted by engineers, public officials and members of the public.

Your peers and the NSPE Board of Ethical Review have reviewed the facts of the case as shown below. And, here are the results.

Applicable NSPE Code References:

II.1.c
Engineers shall not reveal facts, data, or information without the prior consent of the client or employer except as authorized or required by law or this Code.

II.3.a
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, which should bear the date indicating when it was current.

II.4.b
Engineers shall not accept compensation, financial or otherwise, from more than one party for services on the same project, or for services pertaining to the same project, unless the circumstances are fully disclosed and agreed to by all interested parties.

III.4.b
Engineers shall not, without the consent of all interested parties, participate in or represent an adversary interest in connection with a specific project or proceeding in which the engineer has gained particular specialized knowledge on behalf of a former client or employer.

The facts of this case raise a number of issues pertinent to various provisions of the Code of Ethics.

The mere fact that Mike ceased performing services for Nancy would not be an adequate solution to the ethical dilemma at hand. Nor is the fact that Mike has agreed to provide a “separate and independent engineering and safety analysis report.” On the former point, the fact that Mike ceased performing services for Nancy does not mitigate the fact that Mike throughout his first analysis had access to information, documents, etc., that were made available to him by the plaintiff and plaintiff’s attorney in a cooperative and mutually beneficial manner. This Board cannot accept the proposition that following the termination of his relationship with attorney for plaintiff he would “blot all” of that information from his mind and start from “square one” in performing his engineering and safety analysis report.

Nor do we believe that latter point that Mike would be capable of providing a “separate and independent” report for the defendant in this case. (See also Code II.4.b.) It is clear from the facts that the real reason for the defendant’s attorney’s hiring Mike was that he believed Mike would provide a report that would be favorable. Mike had to have been aware of the reasons why his services were being retained by virtue of the sequence of events. Even if Mike was so naive as to believe that Jay was unaware of the circumstances of his termination, we believe that this would not excuse his actions. Code III.4.b. is clear in this regard. At a bare minimum, Mike should have fully discussed the issue with Nancy.

It may be argued that Mike’s loyalties under these facts were not divided because he had terminated his relationship with plaintiff’s attorney. However, we must recognize that while Mike may not currently have a professional relationship with a former client, he still has an ethical obligation to that client to protect certain confidential information and facts, as well as a certain duty of trust and loyalty. How long that duty of trust and loyalty must be maintained we are not prepared to state at this time. However, we are certainly willing to state that such a duty exists for the duration of one legal proceeding.

Finally, with regard to the duty of the engineer to be objective in his professional reports and statements ( Code II.3.a.), we note that it has sometimes been suggested that engineers who act as paid expert witnesses have an inherent conflict between their duty to tell the truth and their obligation to perform their services consistent with the best interests of the client. We note that in this case, Mike developed an analysis report that was inconsistent with the legal interests of the client.

Under the facts, Mike did not act in the role as a “hired gun,” seeking to testify in favor of the client who was paying his fee. We make this point to underscore the importance of forensic engineers “calling them as they see them.” Had Mike ceased his involvement in the case following the termination of his relationship with Nancy, he would have been acting in a wholly ethical manner. His ethical transgressions were a result of his subsequent involvement with Jay.

BOARD OF ETHICAL REVIEW

Wendell Beard, P.E. Robert J. Haefeli, P.E. Ernest C. James, P.E. Robert W. Jarvis, P.E. James L. Polk, P.E. Everett S. Thompson, P.E. J. Kent Roberts, P.E., chairman

Note – In regard to the question of application of the Code to corporations vis-a-vis real persons, business form or type should not negate nor influence conformance of individuals to the Code. The Code deals with professional services, which services must be performed by real persons. Real persons in turn establish and implement policies within business structures. The Code is clearly written to apply to the Engineer and it is incumbent on a member of NSPE to endeavor to live up to its provisions. This applies to all pertinent sections of the Code. This opinion is based on data submitted to the Board of Ethical Review and does not necessarily represent all of the pertinent facts when applied to a specific case. This opinion is for educational purposes only and should not be construed as expressing any opinion on the ethics of specific individuals. This opinion may be reprinted without further permission, provided that this statement is included before or after the text of the case.