Testimony Re; Safety Standards
Code Citations: [II.1.a] [III.3] [Preamble] [Preamble]
Case Citations: [61-10] [65-12]
Engineer A provides forensic engineering services related to the design and manufacture of industrial equipment. Engineer A is retained by an injured industrial 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 Engineer A's proposed testimony concerning European safety standards. At trial, Engineer A is called as an expert witness and despite the court's ruling, Engineer A offers testimony concerning the European safety standards. The court holds Engineer A in contempt of court.
Was it ethical for Engineer A to offer testimony concerning the European safety standards contrary to the court's ruling that the testimony be suppressed?
The Preamble requires that "...engineers must perform under a standard of professional behavior which requires adherence to the highest principles of ethical conduct." The Board does not believe that Engineer A's direct violation of the ruling of the court can be considered ethical conduct.
Further, the Board believes that Engineer A was also unethical under Code III.3 in his deliberate defiance of the court which constituted "conduct...likely to discredit the profession...".
Code of Ethics Code II.1.a. states ``Engineers shall at all times recognize that their primary obligation is to protect the safety, health, property, and welfare of the public. If their professional judgment is overruled under circumstances where the safety, health, property, or welfare of the public are endangered, 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 A 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 A's testimony should not be admitted. That being the ruling of the court, a proper authority, Engineer A 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 or right of the engineer becomes a matter of personal conscience, but we are not willing to make a blanket statement that there is an ethical duty in these kinds of situations 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.
It would be unethical for Engineer A 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.
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