Ethics and the Engineer as Expert Witness: A Module for Classroom Exercises
Author(s):
Joseph H. Wujek, P.E.
Joseph H. Wujek, P.E.
University of California at Berkeley
Department of Electrical Engineering and
Computer Sciences
Presented at the International
Conference on Ethics in Engineering and Computer Science, Case
Western Reserve University Cleveland, Ohio - March
22,1999
Presented at the OEC International Conference on Ethics in
Engineering and Computer Science, March 1999
Abstract
The training, perspective, and motives of the engineer and
of the lawyer differ in many respects. In these classroom
exercises we explore these differences as manifested in the
engineer serving as an expert witness in US courts of law.
Some of the questions to be explored may be summarized
thus:
- What is an expert witness?
- What are some of the differences between the lawyer's
motives and the engineer's duty that may affect how the
engineer acts, or is expected to act, as an expert
witness?
- Is the very function of the expert witness in conflict
with the codes of ethics professed by the engineer?
- If so, in what specific instances?
- Is it possible to mitigate, even eliminate, these
conflicts?
- If so, how?
We explore these and related questions by employing active
learning in the "Think Pair Share" methodology of active
learning. We then involve students in one or more exercises
such as formal or informal debate, consensus-building, or
impromptu theatrics. The latter may dramatize a plaintiff's
lawyer preparing an expert witness (one or more students in
turn) for testifying in a torts case. The rules of the
theatrical exercise encourage coaching from the audience, which
usually results in involvement by most of the
students. The author once played a plaintiff's attorney in a
mock trial of a product liability case, a memorable and
interesting experience.
These exercises, in addition to sensitizing students to
ethical and legal issues, also raise awareness of the
responsibilities of the engineer in product safety and related
matters.
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Suitability of the Scenarios and
Preliminaries
The assignments are intended for use in courses in
statistics, circuit design, chip design, reliability
engineering. Students should be in at least the third-year of
an engineering, computer science, or bioengineering/biomedical
curriculum; and have had some course work in circuits and
systems.
The exercises may be part of a course in engineering
professionalism, ethics, or societal implications of technology
if students have suitable background as may be determined by
review of the exercises.
For students lacking course work/experience in statistics
and probability theory the results of the scenario calculations
may be a "Given," accompanied by an appropriate explanation of
the scientific and engineering implications of the numerical
results. The solutions to the numerical problems may be found
at: Product Reliability, Hazard, and Risk.
Some understanding of Kant's Categorical Imperative,
Utilitarianism, and the Principle of Informed Consent should
enhance the pedagogic value of the drills. These are summarized
below.
Two Among Several Relevant Theories of Ethics
- The Categorical Imperative of Immanuel Kant
(1724 - 1804): "Act on a maxim which you can will to be a
universal law." This is a Respect for Persons (RP) morality,
and a deontological, or binding duty, theory. In Kant's
philosophy the Categorical Imperative means that it is both a
necessary and absolute moral law, and that it is the ultimate
rational basis of all moral conduct. Further, it is binding
on all rational beings and is not based on conditional
premises, wishes, or consequences. A maxim may be
thought of as a "formula" of sorts, a prescribed behavior.
For example, if A is a subjective condition, and if B is an
action, then a maxim could take the form: If A occurs, I will
do B. Law here is not used in the legal sense,
rather it means a principle of action independent of fear of
punishment, etc. Thus one applies the test of asking oneself:
"Could I will (desire) that the action I am about to take, B,
should become the duty of all rational beings in response to
A?" Note that this is a cogent and rational argument for
world peace.
- Utilitarianism, associated with Jeremy Bentham
(1748 - 1832) and John Stuart Mill (1806 - 1873) may be
stated as: "Act so as to produce the greatest happiness for
the greatest number of people." Pleasure and pain are held to
be the only intrinsic good and intrinsic evil,
respectively. Utilitarianism is also called the Greatest
Happiness Theory.
Another idea often relevant in engineering ethics is The
Principle of Informed Consent. This means that the potential
user(s) of our products and services must be made aware of
hazards and other implications of using them.
The two scenarios given below may be used independently or
used with the latter scenario conditioned by the former. The
instructor may wish to revise the scenarios to suit better the
educational background and interests of the class.
Scenario A: T = - 2 Years, Or "THEN"
You (or another person, to be determined in class) work for
Ajax Health Instruments, Inc. (AHI). Ajax is developing an
implantable patient-monitoring device. The device is
implemented on a single-chip: Chip X. The user ("patient") may
download health-data by telephone to the hospital. Any mode of
failure of this memory chip can be extremely hazardous to the
patient because of incorrect data, data loss, etc.; and unknown
or unidentified hazards. The majority of patients expected to
have this implant will be over 50 years of age.
Field data for Chip X, under environmental stress conditions
similar to Ajax's intended use, shows six failures in 1.77
million part-hours. From this, a colleague has computed the
point-estimate of the failure rate:
"Under the robust assumption of constant failure rate, the
Mean Time To Failure (MTTF, or m), is the reciprocal of failure
rate, so:
m = 2.95 (105) hours."
Upon seeing this result, the Chief Engineer exclaims, "Wow,
that's wonderful! The instrument operates continuously, so
that's 8,760 hours per year. So on average we can operate our
unit without failures from the part for 34 years!"
Numerical Problems and Preliminary Exercises
- What fraction of installed Chip X can be expected to fail
after 1 year?
- If failure of Chip X results in patient death one out of
three times, what is the probability of death due to Chip X
failure of one or more patients after 2 years? Assume that
the entire patient population had the device installed at the
same time, and that no other patient fatalities occur in the
2 year interval.
- Compute the two-sided 60% confidence limits (lower 20%,
upper 80%) of failure rate.
- Repeat (c) for two-sided confidence limits of: 80%, 90%,
and 95%.
- On semi-log paper carefully plot the results of (c) and
(d). Use failure rate as the variable of the log-axis.
- Repeat part (a) but now using the upper 90% one-sided
confidence limit of failure rate.
- The Marketing Department of Ajax wants to run an ad in
journals read by physicians. They intend to show prominently:
"Reliability of 34 years!" Comment on this. Consider in your
comments how the ethics code of one or more engineering
societies may be invoked.
- Is Chip X suitable for the intended application? What
considerations should be evaluated, and how?
- Discuss this scenario as it may relate to each of these
concepts: informed consent, Utilitarian theory, and
Respect-for-Persons.
- If you had the responsibility for communicating to
management the meaning of the failure-data stated in Scenario
A, state what you would write in a summary memorandum.
Scenario B: T = 0, Or "NOW"
Suppose that at the time of Scenario A you were not an
employee of AHI and remained so until you were hired three
months ago, at T = - 0.25 years. Your boss has assigned you the
responsibility of sustaining engineering for the SavGuard
product, the system described in Scenario A. Your duties
include responsibility for vendor and customer liaison having
to do with the SavGuard, and for following up on engineering
and manufacturing changes to the product.
From examination of the company archives and speaking to
persons involved in the design and development of SavGuard, you
have gained full knowledge of the events of Scenario A and
events described in the following three paragraphs.
You feel comfortable with your job assignment and it is your
belief that you know how to deal with the tasks implied by your
responsibilities. Your self-confidence may change as a result
of what follows.
Your boss and a person unknown to you visit you in your
office, whereupon the stranger is introduced to you as a lawyer
retained by the company for defending a pending lawsuit. Your
boss asks you to "cooperate fully" with the lawyer, because
"... it's all for the good of AHI and you." The lawyer hands
you a file-folder having photocopies of newspaper clippings and
several AHI in-house memoranda. You are also given a business
card for the law firm. Your boss tells you to contact the
lawyer as soon as you have read the file. You estimate that it
will take "a day or two" to work through the file.
Your boss visits you and asks, "Have you finished reading
the file?" You indicate having done so and your boss reminds
you that you are to call the lawyer retained by the company.
You ask your boss, "What's this about? I wasn't here for any of
this...why was I asked to read the file and contact the
lawyer?"
Your boss exclaims cheerfully, "Because we have you picked
out to be an expert! We feel you have the stuff to handle this,
to represent the company in technical issues in a
high-visibility activity! We have you set to be an expert
witness in defending against this silly lawsuit."
Your boss explains, "We chose you because you're articulate,
self-assured, and sharp on tech matters, especially the
SavGuard. And only you among our top engineers weren't at AHI
back when that traitor left! That traitor to AHI is even going
to testify against us in the suit! The plaintiff's lawyer
cannot charge you as having prior knowledge in the case. You're
PERFECT for the job! And do I need point out that your service
to the company will be noted all the way to the top! This is a
great opportunity for you to show your corporate loyalty and
technical know-how."
You arrange a meeting with the lawyer. The lawyer outlines
the trial strategy and your part in it:
"I want you to just answer my questions, no more and no
less. We need to stress the idea that the company acted in good
faith, and that the main component of SavGuard, Chip X, had a
proven reliability of 34 years! So how could
SavGuard fail after less than six months in the patient?!
Impossible! We all KNOW that, it's just common sense. Stay away
from technical stuff, the jury and judge won't understand it
and they'll suspect you of trying to confuse matters. And
whatever you do, no math! Who understands that mumbo-jumbo! The
jury and judge will just distrust you ... after all, and please
excuse me, nothing personal, but engineers are
considered "gear heads" and "nerds," not normal people. In
cross-examination the plaintiff's lawyer may try to get you to
discuss the math. Don't let it happen. Just tell the court that
the average life of the chip in SavGuard was proved to be 34
years. Stick with the averages! People understand that, there
are baseball batting averages, bowling averages, stock averages
from Wall Street, and all that. It's a world of averages, got
it? I know you'll do a good job for the company, and you'll be
paid a bonus for testifying as an expert witness."
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Sharing Ideas
Written Summaries
The exercises below are to be done by students working in
pairs. Write down a few key ideas, then discuss them with your
partner. Explain one another's ideas and arrive at a consensus
if you can. The student-pair should prepare a brief written
summary of your findings and be ready to discuss them
orally.
Comment on the thoughts expressed in the following:
- Summarize your understanding of the function of the
engineer as an expert witness in a court of law.
- Compare the relationship to Ajax Health Instruments, Inc.
(AHI) of a lawyer employed or retained by AHI to the
relationship of the engineer employed or retained by AHI as
an expert witness. How do each relate to AHI customers? To
the public at large?
- Do you disagree with any aspect of the role of the expert
witness? Explain.
- Comment on the lawyer's statements and charges to you.
What of the "proven reliability" comment by the lawyer?
Distinguish between legal "proof", mathematical "proof" as in
establishing a theorem, and acceptance/rejection of a
hypothesis based upon statistically valid tests. How would
you respond to the lawyer? Be specific.
- Comment on the lawyer's overall behavior as given in
Scenario B files and dialogue.
- Is there anything in an engineering society Code of
Ethics that may be applicable in this scenario? If so, please
explain thoroughly. (Consider any engineering
society's Code of Ethics.)
General Discussion
- Is there anything in the Code of Ethics examined in 6
above that you challenge as being inappropriate?
- Is there anything in the Code of Ethics (as in 6 above)
that is in conflict with your personal beliefs? Explain.
- Consider the college or university you attend. In your
opinion, is there an awareness and adherence to ethical
principles within the College (or School) of Engineering
students, staff, and faculty?
- In your opinion, is there an awareness and adherence to
ethical principles within the overall university or college
you attend?
- Consider the following and express your opinions why such
a disparity exists, and what effects such may have upon the
economy and quality of life in the USA.
The USA accounts for about 4% of the world's population,
and in 1997 there were about 986 thousand persons
practicing law in the USA. An estimate of worldwide figures
may be had from the International Bar Association, "It is
composed of over 18,000 individual lawyer members in 183
countries and 173 Law Societies and Bar Associations
together representing more than 2.5 million lawyers."
- Debate the question: Resolved, that the task of being an
engineering expert witness is in conflict with the code of
ethics of (name of an engineering society).
- Act as mediator and find consensus among the three
players in the theatrics given below. If theatrics are not
performed, have three students meet, each taking a position
as set out in the theatrics. The task is to find consensus
and to then report areas of agreement and disagreement.
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Ethical
Implications of Being an Expert Witness - Impromptu
Theatrics
Use anything learned in the above exercises in carrying out
what follows. Let the scene be set after the engineer has met
with the lawyer. Present in the scene are the lawyer, the boss,
and the engineer.
A student plays "the engineer" in the scenario, and in the
dialogues outlined below. The other characters, the "boss" and
the "lawyer," may be played by the instructor and a student, or
by students only. If the instructor elects to participate, the
role of boss is perhaps best-suited pedagogically, because the
boss may alternately side with the engineer ("my people") and
the lawyer ("my company's interests"). So doing will keep
conflict in the scene.
Because conflict is necessary, but not sufficient (!) for a
successful experience it is important that the other characters
oppose the position voiced by the engineer. Therefore, if a
student is chosen to play one of the foils to the engineer it
is essential that the person disagrees with the position of the
engineer. Such may be noted by polling the audience before
choosing the player(s).
If the engineer agrees to do all or much of what the lawyer
seeks, let the boss take exception to this as being
"weak-willed," and lacking in character. To create or sharpen
conflict the boss may berate the lawyer for "trying to make an
automaton of my engineer!" The boss may be accuse the lawyer of
"... being no more than a hired gun, willing to do anything for
a price!"
The rules of performance are flexible and should be based on
the backgrounds of the students, level of experience in ethics
instruction, etc. Some suggested options are:
- Encouraging the audience to coach the actors. The actors
are free to accept or reject the advice from the audience.
The more articulate or interesting suggestions from the
audience may be used by selecting as a new actor the person
who made the suggestion. The instructor may choose to "reset"
the action to the initial scene or to continue the play from
the moment the new actor entered the scene.
- Stopping the play as needed to clarify a point, expand on
the scenario, elaborate on something said in the theatrical
dialogue, etc.
- Switching roles. Each participant takes the positive of
the arguments just argued in the negative. A good exercise in
rhetoric!
Have a general discussion after the theatrics to summarize
what was learned. Do a critique of how each player represented
a personal agenda and compare to ethical behavior ideals. A
written exercise done immediately after the performance may be
useful.
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Bibliography
A highly abbreviated listing of works on engineering ethics
and societal responsibility of engineers and technologists.
The World Wide Web is rich in ethics materials with many
links. The Online Ethics Center for Engineering and Science
at Case Western Reserve University is a good place to begin
- Harris, C., Pritchard, M., and Rabins, M.,
Engineering Ethics: Concepts and Cases,
Wadsworth, Belmont, CA, 1995
- Johnson, D., Computer Ethics, Second
Edition, Prentice Hall, Englewood Cliffs, NJ, 1994
- Johnson, D. (Ed.), Ethical Issues in
Engineering, Prentice Hall, Englewood Cliffs, NJ,
1991
- Johnson, D., and Nissenbaum, H. (Eds.), Computers,
Ethics & Social Values, Prentice Hall, Upper
Saddle River, NJ, 1995
- Layton, E., The Revolt of the Engineers: Social
Responsibility and the American Engineering
Profession, The Johns Hopkins University Press,
Baltimore, 1986
- Martin, M. and Schinzinger, R., Ethics in
Engineering, Third Edition, McGraw-Hill, NY, 1996
- Susskind, C., Understanding Technology, San
Francisco Press, San Francisco, 1985
- Unger, S., Controlling Technology: Ethics and the
Responsible Engineer, Second Edition, Wiley, NY,
1994
Use of
These Notes
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