PDHonline Course R144 (2 PDH) Ethical Issues in Forensic Engineering J. Paul Guyer, P.E., R.A., Fellow ASCE, Fellow AEI 2012 PDH Online | PDH Center 5272 Meadow Estates Drive Fairfax, VA 22030-6658 Phone: 703-988-0088 Fax: 703-481-9535 www.PDHonline.com www.PDHcenter.com An Approved Continuing Education Provider www.PDHcenter.com PDHonline Course R144 www.PDHonline.org Ethical Issues in Forensic Engineering J. Paul Guyer, P.E., R.A., Fellow ASCE, Fellow AEI CONTENTS 1. INTRODUCTION 2. WHAT IS FORNESIC ENGINEERING? 3. FRAMING THE ETHICAL ISSUES 4. SYSTEMS OF LAW 5. LINEAR AND NON-LINEAR THINKERS 6. MATERIALISM 7. THE ETHICAL ISSUES 8. RESOLVING THE ETHICAL ISSUES 9. THE ROAD FORWARD © J. Paul Guyer 2012 Page 2 of 23 www.PDHcenter.com PDHonline Course R144 www.PDHonline.org 1. INTRODUCTION Professional engineers who have reached mid-career may have heard the term “forensic engineer” but do not know much about what a forensic engineer does. That is because forensic engineering is not an engineering discipline but a business enterprise connected to the legal industry in the United States. It is an enterprise that challenges the public and practicing professional engineers. 2. WHAT IS FORENSIC ENGINEERING? Here are some definitions from different sources: • Forensic engineering is the investigation of materials, products, structures or components that fail or do not operate or function as intended, causing personal injury or damage to property. The consequences of failure are dealt with by the law of product liability. • The application of accepted engineering practices and principles for discussion, debate, argumentative, or legal purposes. • Application of engineering methods in determination and interpretation of causes of damage to, or failure of, equipment, machines, or structures. • Forensic engineering is defined as the application of the art and science of engineering in matters which are in, or may possibly relate to, the jurisprudence system, inclusive of alternative dispute resolution. • Forensic engineering is the application of the art and science of engineering in the jurisprudence system, requiring the services of legally qualified professional engineers. Forensic engineering may include the investigation of the physical causes of accidents and other sources of claims and litigation, preparation of © J. Paul Guyer 2012 Page 3 of 23 www.PDHcenter.com PDHonline Course R144 www.PDHonline.org engineering reports, testimony at hearings and trials in administrative or judicial proceedings, and the rendition of advisory opinion to assist in the resolution of disputes affecting life or property. • Forensic engineering is the application of engineering principles to the investigation of failures or other performance problems. Forensic engineering also involves testimony on the findings of these investigations before a court of law or other judicial forum, when required. From these and other sources it is reasonable to conclude that forensic engineering is (a) a business enterprise and not an engineering discipline and (b) it is ancillary to the legal system in the United States. 2.1 FORENSIC ENGINEERING IS NOT AN ENGINEERING DISCIPLINE. Engineering is the art and science of applied physics. Training and practice in engineering is, for obvious reasons, structured consistent with the principles of physics. For example electrical engineering is the art and science of application of the physical principles of electricity. Mechanical engineering is the application of the physical principles of mechanics. And so forth. But there are no physical principles of “forensics.” 2.2 FORENSIC ENGINEERING IS A BUSINESS ENTERPRISE. Forensic engineering is a business enterprise. The objective of its practitioners is mercantile, that is, to earn money with which to buy the goods and services that will allow them to lead a secure, comfortable and enriching life. This is the reason people seek out and pursue jobs and careers. This is all perfectly reasonable. 2.3 FORENSIC ENGINEERING IS AN APPENDAGE OF THE LEGAL SYSTEM IN THE UNITED STATES. © J. Paul Guyer 2012 Page 4 of 23 www.PDHcenter.com PDHonline Course R144 www.PDHonline.org Forensic engineers are participants in the legal system in the United States. This is clear from the quotations above and many other sources. For example…. • “the law of product liability” • “or legal purposes” • “interpretation of causes of damage” • “the jurisprudence system” • “application of the art and science of engineering in the jurisprudence system” • “of these investigations before a court of law or other judicial forum” 3. FRAMING THE ETHICAL ISSUES To address the ethical issues presented by a forensic engineer in a formal legal system (in the United States the “common law” system), it will be helpful to describe (a) the actors in a legal dispute generically and in customary common law terminology, and (b) the possible just and unjust outcomes that may result from the actions of a forensic engineer. Table 3-1 is a framework for the actors in a formal legal dispute. Table 3-2 is a framework for the possible just and unjust outcomes that may result from the actions of a forensic engineer. © J. Paul Guyer 2012 Page 5 of 23 www.PDHcenter.com PDHonline Course R144 www.PDHonline.org TABLE 3-1 DESCRIPTION OF PARTIES TO A DISPUTE IN A FORMAL LEGAL SYSTEM (COMMON LAW) GENERIC TERM AND DESCRIPTION LEGAL TERM JUDICIAL AUTHORITY – The person or JUDGE and/or JURY persons in a formal legal system who have the power to decide if a claim of damages is legitimate and compensation by the accused party of the accusing party is just. ACCUSING PARTY - The person or entity PLAINTIFF claiming to have been injured or damaged and to be entitled to compensation by the accused party. Accusing Party’s ADVOCATE – A person Plaintiff’s LAWYER hired by the accusing party to persuade the judicial authority to render a judgment favorable to the accusing party. Accusing Party’s FORENSIC ENGINEER – A Plaintiff’s EXPERT WITNESS professional engineer hired by the accusing party or the accusing party’s advocate to present technical evidence intended to persuade the judicial authority to render a judgment favorable to the accusing party. ACCUSED PARTY – The person or entity DEFENDANT accused of injuring or damaging the accusing party. Accused Party’s ADVOCATE – A person Defendant’s LAWYER hired by the accused party to persuade the judicial authority to render a judgment favorable to the accused party. Accused Party’s FORENSIC ENGINEER – A Defendant’s EXPERT WITNESS professional engineer hired by the accused party or the accused party’s advocate to present technical evidence intended to persuade the judicial authority to render a judgment finding the accusing party’s claim without merit. © J. Paul Guyer 2012 Page 6 of 23 www.PDHcenter.com PDHonline Course R144 www.PDHonline.org TABLE 3-2 POSSIBLE OUTCOMES THAT MAY RESULT FROM THE ACTIONS OF A FORENSIC ENGINEER IN A FORMAL LEGAL SYSTEM (COMMON LAW) JUST UNJUST JUDICIAL AUTHORITY may reach a just JUDICIAL AUTHORITY may reach an unjust conclusion and the accusing party is thereby conclusion and the accusing party is thereby justly compensated by the accused party unjustly enriched at the expense of the unjustly responsible for an injury or damages. accused party. FORENSIC ENGINEER may provide true, FORENSIC ENGINEER may provide false, complete, and unbiased technical testimony incomplete, and biased technical testimony and and evidence. evidence. FORENSIC ENGINEER has no pecuniary FORENSIC ENGINEER has a pecuniary interest in prevalence of the party upon whose interest in prevalence of the party upon whose behalf he provides testimony and evidence. behalf he provides testimony and evidence. Evidence provided by FORENSIC ENGINEER Evidence provided by FORENSIC ENGINEER does not influence or persuade unjustly influences or persuades unjustly accused party accused party to unjustly compensate accusing to unnecessarily compensate accusing party party because of prospective expense for because of prospective expense for accused accused party to seek just exoneration by the party to seek just exoneration by the judicial judicial authority. authority. A discussion of three social constructs will be helpful in understanding and addressing the ethical issues in forensic engineering. These are…. • Systems of Law: Civil/Common/Islamic • Linear and Non-Linear Thinkers: Rule driven versus goal driven • Materialism: The theory or attitude that physical well-being and worldly possessions constitute the greatest good and highest value in life. Let’s talk about these. Then we may better understand the ethical issues in © J. Paul Guyer 2012 Page 7 of 23 www.PDHcenter.com PDHonline Course R144 www.PDHonline.org forensic engineering and be better prepared to seek a resolution that is fair and reasonable to the public and the professional engineering community. The first is systems of law…. 4. SYSTEMS OF LAW There are three substantive legal systems in the world: • Civil Law • Common Law • Islamic Law A fourth system of law, observed in a limited number of countries, can be characterized as “bijuridical”, that is, a combination of Civil and Common Law. Figure 3-1 shows the distribution of these principal legal systems globally. Civil Law Common Law Bijuridical Law (a combination of Civil and Common Law) Islamic Law Figure 3-1 Systems of Law © J. Paul Guyer 2012 Page 8 of 23 www.PDHcenter.com PDHonline Course R144 www.PDHonline.org 4.1 CIVIL LAW. Civil law is the most widespread system of law in the world. Under Civil Law, the law-of-the-land is enunciated and approved by a duly constituted governmental body of appropriate authority (a parliament, congress, legislature, etc.) and thereupon codified (written-down and published in print or, in this day and age, in digital format). There are two important distinguishing characteristics of Civil Law: • The law is established and enunciated (written down) by an appropriately established governmental body (a parliament, congress, legislature, etc.), not by the exercise of the prerogative of individual judges.