This is the May 2020 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.
Your opinion has been registered for the May 2020 edition of our monthly series of Ethics case studies titled What Do You Think?
Your vote is recorded as:
Want to know how your peers voted? We’ll send you an email with the poll results on May 26.
Your opinion has been registered for the May 2020 edition of our monthly series of Ethics case studies titled What Do You Think?
Your vote is recorded as:
Want to know how your peers voted? We’ll send you an email with the poll results on May 26.
A Review of the Facts
Engineer Jude provides forensic engineering services related to the design and manufacture of industrial equipment. Jude is retained by an injured employee in connection with litigation involving the failure of a manufacturer to incorporate a safety guard into the design of an industrial tool. Under US law and design standards, the incorporation of the safety guard is not required. However, such a device is required under European safety standards. During preliminary trial motions, the trial court grants the defense’s motion to suppress Jude’s proposed testimony concerning European safety standards. At trial, Jude is called as an expert witness and despite the court’s ruling, Jude offers testimony concerning the European safety standards. The court holds Jude in contempt of court.
Was it ethical for Jude to offer testimony concerning the European safety standards contrary to the court’s ruling that the testimony be suppressed?
Here is the result of our survey of your peers:
Applicable NSPE Code References:
Code Preamble: Engineering is an important and learned profession. As members of this profession, engineers are expected to exhibit the highest standards of honesty and integrity. Engineering has a direct and vital impact on the quality of life for all people. Accordingly, the services provided by engineers require honesty, impartiality, fairness, and equity, and must be dedicated to the protection of the public health, safety, and welfare. Engineers must perform under a standard of professional behavior that requires adherence to the highest principles of ethical conduct.
Code II.1.a: If engineers’ judgment is overruled under circumstances that endanger life or property, they shall notify their employer or client and such other authority as may be appropriate.
Discussion
The Preamble requires that “…engineers must perform under a standard of professional behavior that requires adherence to the highest principles of ethical conduct.” The Board does not believe that Jude’s direct violation of the ruling of the court can be considered ethical conduct.
Code of Ethics Code II.1.a. states, “If engineers’ judgment is overruled under circumstances that endanger life or property, they shall notify their employer or client and such other authority as may be appropriate.” In BER Case 65-12, the Board dealt with a situation in which a group of engineers believed that a product was unsafe, and determined that so long as the engineers held to that view they were ethically justified in refusing to participate in the processing or production of the product in question.
Earlier, in BER Case 61-10 we distinguished a situation in which engineers had objected to the redesign of a commercial product, but which did not entail any question of public health or safety. On that basis we concluded that this was a business decision for management and did not entitle the engineers to question the decision on ethical grounds.
Here the engineer has fully notified the proper authorities (the court) of his testimony in connection with the safety standards in question and the court has made an official determination that the engineer’s testimony should not be admitted. That being the ruling of the court, a proper authority, Jude has fulfilled his ethical and professional obligation and should abide by the judgment of the court. To ignore the court’s substantive determination and to violate the court’s procedure would both jeopardize the fairness of the proceedings and place the engineering profession in a bad light.
In this type of situation, we feel that the ethical duty of the engineer becomes a matter of personal conscience. We are not willing to make a blanket statement that there is an ethical duty for the engineer to continue his campaign, and make the issue one for public discussion. If an engineer feels strongly about a particular issue such as the one raised by this case, there are numerous other forums for the engineer to raise his concerns (within his professional society, in professional journals, etc.). However, a courtroom in which a legal proceeding is being held is not among the appropriate forums.
The Ethical Review Board’s Conclusion
It would be unethical for Jude to offer testimony concerning the European safety standards contrary to the court’s ruling that the testimony should be suppressed.
BOARD OF ETHICAL REVIEW
James G. Fuller, P.E., Donald L. Hiatte, P.E., William W. Middleton, P.E., Robert L. Nichols, P.E., William E. Norris, P.E., Jimmy H. Smith, P.E., William A. Cox, Jr., P.E., Chairman
Note: The Board of Ethical Review operates on an “ad hoc” educational basis, and does not engage in resolving disputes of fact between parties in actual cases. That function is left to the state society if members are involved in judging whether a member has violated the Code of Ethics. Being solely educational, the function of the Board is to take the submission of “facts” as the basis for analysis and opinion without attempting to obtain rebuttal or comment from other parties. On that basis, the reader of the opinions should always recognize that the Board of Ethical Review is not an adjudicatory body, and unless indicated otherwise, its opinions are not binding upon the National Society of Professional Engineers, any state engineering society or any individual. Instead, the opinions represent the opinions of licensed engineers as to the reasonable standards of practice within the engineering profession. Board of Ethical Review opinions are intended to provide guidance in actual cases only to the extent of the “facts”, stated in the case. Cases may be reproduced for educational purposes as long as the material reproduced provides appropriate attribution to NSPE and the Board of Ethical Review.
This discussion gives yet another good reason to never, ever be an “expert” witness. The quick $ made may come back and haunt you
There is not enough information in the statement to render a decision. For example, if an attorney asked Jude a question about European standards, then the defense attorney should have objected. Jude has an obligation to answer the question unless there is an objection. If he didn’t answer the question, he may be in contempt. Where was the defense attorney? He should have objected. In addition, this is not even an ethical question, but rather a legal one. Ethics doesn’t even enter the picture here.
Without honoring the court’s instructions, we cannot enforce our own rules. We cannot pick and choose the rules to follow. Outside the court, as noted, the engineer can bring up the discussion. For example, the engineer could hold a press conference and disagree with the court’s decision to not allow the testimony, OR, better, the engineer could WORK WITH THE LAWYERS and develop an appeal should his client lose the case.
If his testimony was “suppressed,” why was he allowed to be a witness at all? If he was also testifying about matters other than European design standards, why were questions about that topic allowed by the judge and/or defense attorney? However, once on the stand, how would he be able to legally refuse to answer questions truthfully. I’m not sure how he was in contempt, or behaved unethically, assuming he was called to address other valid topics.
Not ethical because it is referencing something that does not apply to the case. Nothing was said about WHY he wanted to do this. If it covered an issue which could be considered an oversight in the US standard, then he would have something that could be useful in the appeal but only to the extent that it would be an example of good practice, that is the nature of what is being covered by that particular standard, not on the basis that it is a standard somewhere else. That is, just because there are still places where you are not allowed to pump your own gasoline it does not render the oil company liable if you blow yourself up because you were smoking a cigarette while pumping your own gasoline in a place where it is legal to do so.
Tom: One needs to be an “expert” to be an expert witness. As an expert, one should know what is and is not allowed.
Stephen: There is enough information. The court ruled before Jude took the witness stand. If asked about the European standard, Jude should have said that he is not allowed to speak to those. Contempt would not have occurred as he was complying with the court’s prior ruling.
All: Expert witnesses are not always on the winning side.
The matter at hand is a case within the jurisdiction of the court, the US. What the standards are in another jurisdiction are irrelevant. For instance if there was looser or non-existent safety standards in another country would that be relevant (perhaps if the defendant was arguing what they did met the standards in the EU but not in the US)? No. So after being advised commentary on standards elsewhere should not be discussed should be obeyed. The sited passages of the preamble are also irrelevant since this case isn’t about how the next product should be designed in which case considering the SotA would be a consideration where it may be ethical to ensure a client is made aware of options to improve safety.
There are two sides to this coin. If I am an engineer in American I use Europe to state we need stronger standards because those professionals think so. If I am a European engineer I could say we need weaker standards since that is what is practiced in American, a known leader. Which point of view is correct?
Just wanna say that this is very beneficial, Thanks for taking your time to write this.
The product manufacturer obviously faces great liability in such a court case. If a jury is involved in such a case, the jury is not going to care whether a manufacturer follows U.S. laws, regulations, codes, design standards, etc. They would be looking to see whether it was foreseeable (by the designer and/or manufacturer) that the omission of safety guards for the machinery in question would lead to an accident. Also, the designer of the machinery may not be the same as the manufacture – often products are designed in the U.S. and manufactured overseas.
One should also distinguish whether this is a civil court action or criminal action. If this is a civil tort lawsuit (i.e., wrongful death lawsuit) against the designer or product manufacturer, contempt of court is not always enforced on the individual who has performed such action.
However, if this is a criminal court proceeding against the manufacturer (i.e., criminal negligence or more severe charge), contempt of court could land you in jail, and is never a good idea no matter what the ethics scenario is.
On one of my first engineering (intern) jobs with the Federal Government nearly 30 years ago, a worker at a hazardous worksite area was crushed and killed in a rock-crushing machine exactly because there were no safety guards on the machinery. This was the findings of the Federal and state OSHA offices and other entities. I rotated to another position in this internship and did not know the final outcome of any lawsuits or criminal proceedings, but there were complications because the Price Anderson Act indemnifies the contractors working on nuclear work for the US Government.