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Expert Witness Provides Inconsistent, Unsupported Testimony

Situation

The driver of a small passenger vehicle is seriously injured when his car spins out of control on a rural road and slams into a tree. The driver files suit against several defendants in connection with the accident, including his car’s leasing agency, the auto manufacturer, and the engineering firms responsible for the design and construction of the road. 

Two of the four defendants quickly settle out of court and the case proceeds against the remaining defendants: the engineering firms responsible for the design and construction of the roadway. The driver’s attorney retains as the sole technical witness a transportation engineering consultant and ASCE member who testifies that improper design or construction of the roadway’s subbase had permitted pockets of water to seep upward and exit the pavement joints under the road’s heavy truck traffic, creating “unnatural” ice formations, which in turn caused the plaintiff’s accident. 

The expert witness states that his assessment of the roadway is based on surface measurements and a visual inspection he made of the accident site, as well as on published research on the development of such “unnatural” ice formations. However, cross examination of the witness reveals that he conducted little other research on the details of the case. The member admits that he did not take samples of the soil or subbase material of the pavement and did not review the design documents, soil logs, or other data relating to the roadway’s design and construction. He also, it emerges, failed to review reports indicating that frost penetration had been too deep on the date of the accident to allow water to be forced to the roadway surface. 

Moreover, the expert’s own analysis of the case contains marked contradictions. He testified that he had seen “much” cracking and spalling of the roadway, but his own sketch of the roadway indicated only one crack with spalling and that crack was some 250 ft from the point where the plaintiff lost control of his vehicle. The member’s initial report attributed the accident to improper roadway maintenance, maintenance that was the sole responsibility of the state department of transportation, an entity protected from litigation through the state’s sovereign immunity. Yet the engineer’s second report of the accident, drafted less than a month after his first, named poor design and construction as the “sole” cause of the accident. 

Despite the many inconsistencies, the expert makes a plausible witness on the stand, and the defendants fear that the plaintiff’s injuries will elicit the sympathy of the jurors. Faced with the possibility of an unfavorable verdict, both engineering firms make a settlement offer to the plaintiff. The case is settled, and an employee of the design firm forwards transcripts of the expert’s testimony to ASCE’s Committee on Professional Conduct (cpc). 

Question

Did the engineer’s actions in presenting expert witness testimony without a more extensive investigation of the case violate ASCE’s Code of Ethics? 

Decision

Category (b) in the guidelines to practice for canon 3 of the Code of Ethics 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.” Category (c) for the same canon 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.” This emphasis on “adequate knowledge” and including “all” relevant information reflects an engineer’s ethical obligation to thoroughly investigate the engineering aspects before offering conclusions as an expert witness in litigation. 

 

Members of the CPC met with the member in question, who denied that there was any need for him to conduct additional research into the roadway’s design and construction. The member stated that it was “obvious” on visual inspection that the roadway had not been properly designed, and he claimed that this case demonstrated a growing problem of engineers who design only for compliance with state standards and do not consider special conditions that might make the state requirements inadequate for ensuring public safety. 

The member further denied any inconsistency in his reports of the case. He maintained that his sketch of the roadway was not intended to capture all of the cracking and spalling he observed. He further stated that while he had indeed amended his report because he was told the plaintiff “could not get a verdict” against the department of transportation, the changes did not affect the accuracy of his conclusions. He asserted that poor design and construction were the underlying causes of the plaintiff’s accident and that maintenance had only been an issue because the state “had not fixed what had failed.” Finally, he opined that the defendants’ decision to settle the case was an acknowledgment of guilt. 

The CPC was not persuaded by the member’s insistence that his conclusions were amply supported by the facts of the case. After an extensive review of the court transcripts and engineering reports from all parties involved in the matter, the CPC concluded that the member had failed to investigate the matter to the extent necessary to support his testimony in the civil litigation. Finding that the member had violated canon 3 of the Code of Ethics, the committee recommended that he be suspended for a period of two years. The Executive Committee agreed, and notice of the suspension was published in an ASCE publication. 

Members who have an ethics question or would like to file a complaint with the Committee on Professional Conduct may call ASCE’s hotline at (703) 295-6061 r (800) 548-ASCE (2723), extension 6061. The attorneys staffing this line can provide advice on how to handle an ethics issue or file a complaint. Please note that individual facts and circumstances vary from case to case and that the general summary information contained in these case studies is not to be construed as a precedent binding upon the Society. 

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