By Tara Hoke
This issue’s The Law column reviewed the case of Enclave Condominium Association v. Lime Contracting Inc., in which an engineer’s expert witness testimony was barred due to his demonstrated lack of knowledge or understanding of the facts. While the engineer in this case was not an ASCE member, readers of that column might wonder how his conduct would have been measured under the ASCE Code of Ethics. This column examines that scenario.
SCENARIO A condominium association hires a contractor to perform restoration work on the exterior of a building that is experiencing water infiltration. The project is troubled almost from the start, with deviations in the observed conditions of the building and in the performance of products intended to seal the leakage, leading to many changes to the scope and specifications of the contractor’s work. Shortly after completion of the project, it becomes apparent that the infiltration problems persist in the building. The association notifies the contractor of the issue, but the contractor refuses to perform additional work on the building without further payment from the association. Instead, the condo association sues the contractor, claiming it breached its contract by “failing to comply with the plans and specifications” and by performing the work “in a defective and unworkmanlike manner.”
At deposition, an engineer retained as an expert by the plaintiff identifies numerous instances that he believes demonstrate the contractor’s failure to meet the contractual obligations. Upon examination by the contractor’s counsel, however, the engineer is unable to provide an adequate factual basis for his conclusions. The engineer faults the contractor for applying sealant without a backer rod but fails to review the manufacturer’s literature to determine whether a backer rod was called for in the product’s specifications. He also describes the absence of a primer coat as an “omission” by the contractors but appears unaware that this task was expressly eliminated from the contractor’s scope of work. The engineer acknowledges that he had neither reviewed the contract documents in full nor completed tests to determine the cause of the continued leakage but instead relied mainly on his visual inspections of the building and his 15 years of engineering experience to justify his assignment of fault.
The court is not persuaded by the engineer’s claim of expertise. Deeming the engineer’s deposition to demonstrate a “general lack of knowledge of (the contractor’s) scope of work,” the judge upholds the defendant’s motion to exclude the engineer’s testimony.
Next, finding that the plaintiff had failed to “identify, through competent testimony” how the contractor had breached its contract and caused loss to the association, the judge disposes of the case entirely with a grant of summary judgment in favor of the contractors.
QUESTION Would the engineer’s conduct in this case violate the ASCE Code of Ethics?
DISCUSSION It could be said that no asset is worth more to the engineering profession than its reputation for truthfulness and objectivity, for rendering advice and analysis based on diligent review and technical competence, unvarnished by personal bias or other considerations. Recognizing the critical need for clients, users, and the public at large to trust engineering opinions, the previous version of ASCE’s Code of Ethics devoted considerable space to the engineer’s ethical duties in conveying information. Fundamental Canon 3 stated, “Engineers shall issue public statements only in an objective and truthful manner,” while guideline b extended this obligation to all “professional reports, statements, or testimony” and noted a requirement to “include all relevant and pertinent information in such reports, statements, or testimony.” Speaking directly to the role of expert witness, guideline c under the old Canon 3 added that expert witnesses should “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.”
Of the many ways in which engineers can share their technical expertise with others, perhaps none is quite so fraught with ethical peril as the role of expert witness. While the intent of expert testimony is to assist the judge and jury with objective guidance on matters requiring specialized knowledge, in practice these witnesses are selected and funded by a particular party to a legal matter — someone with a very subjective need for an expert analysis that supports a desired conclusion.
Moreover, the goal of advancing a client’s interests is itself an ethical imperative, expressed in the prior code by Fundamental Canon 4’s exhortation to “act in professional matters for each employer or client as faithful agents or trustees.” Given these conflicting duties, does an engineer’s obligation to include relevant information include disclosures that undermine a client’s interests? Or does the duty of faithfulness to clients justify selecting or excluding certain facts to paint a misleading picture for legal triers of fact?
While the previous code offered little guidance for engineers trying to navigate between two conflicting ethical duties, today’s ASCE Code of Ethics seeks to minimize such dilemmas by noting that its five sections are not merely a list of stakeholders but also a hierarchy. As stated in the code’s preamble, when two or more obligations conflict, the stakeholders are listed in the order of priority — meaning that a duty to society outweighs a duty to the environment, which in turn supersedes a duty to the profession, and so on.
In the case described here, the engineer’s obligation under section 1c of today’s code to “express professional opinions truthfully and only when founded on adequate knowledge and honest conviction” takes clear precedence over the mandates of section 4a to “act as faithful agents of their clients and employers with integrity and professionalism.” In fact, the wording of section 4.a itself offers a clue as to the limits of a duty to clients and employers. By concluding that engineers must serve clients and employers “with integrity and professionalism,” the new code warns engineers not to sacrifice their professional honor in service of a client’s or employer’s objectives.
Accordingly, if the current case were reviewed by ASCE’s Committee on Professional Conduct, it is likely the committee members would feel the engineer had offered testimony purely to support his client’s objectives, without an appropriate level of technical rigor or objectivity. The engineer would have violated his ethical obligation under section 1c of the code to state engineering opinions “only when founded on adequate knowledge and honest conviction.”
Of course, it is also worth questioning whether engineers who offer testimony without adequate preparation or support are even meeting their obligation to serve their clients faithfully. It is certainly evident in this case that the engineer’s laxity proved harmful to his client’s interests, as his failure to substantiate his expert understanding led to the dismissal of his client’s claim. A truer expression of faithful service to his client would have involved giving a thorough and objective assessment of the technical issue, so that the client could make decisions based on the engineer’s best judgment, even if that judgment was the unwelcome assessment that the client’s claim was not supported by the evidence at hand.
Engineers seeking a more extensive treatment of their obligations when serving as expert witnesses might look to ASCE’s Guidelines for Forensic Engineering Practice, published by the Forensic Practices Committee of the Technical Council on Forensic Engineering. As noted in this manual: “An expert witness is seated at trial to aid the trier of fact, to present technical points in a way that is accessible to a lay jury, and to express opinions based upon sound engineering principles and objective engineering opinions. When a forensic engineer drifts away from the duty of objectivity towards advocating on behalf of the clients’ cause without adequate investigation and analysis using valid and reliable methods, or when the forensic engineer shades the truth or misleads the jury in an attempt to win a case despite the absence of valid, supportable evidence, this represents an ethical breach.”
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
This article first appeared in the November/December 2021 issue of Civil Engineering as “Examining the Ethics of Expert Testimony.”