Is there any indication for ethics evidence? An argument for the admissibility of some expert bioethics testimony

Journal of Law, Medicine and Ethics

Volumn 33, Issue 2, 2005, Pages 248-263

  Nelson, Lawrence J ^a  

^a SANTA CLARA UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 23944517596     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2005.tb00491.x     Document Type: Conference Paper

References (78)

1. E.g., G. Scofield, "Is the Medical Ethicist an 'Expert?'" Bioethics Bulletin 3, no. 1 (1994): 1-2, 9-10, 28.
2. E. J. Imwinkelried, "Expert Testimony by Ethicists: What Should be the Norm?" Journal of Law, Medicine and Ethics 33, no. 2 (2005): 198-221, at 199.
3. Id. at 206.
4. Ibid. Id.
5. Id. at 199.
6. Ibid. Id.
7. Id. at 199.
8. "The court may on its own motion...enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint...expert witnesses of its own selection."
9. The pancreas self destructs, and the person suffers from diabetes.
10. See Cal. Penal Code §11165.2(b) (2004).
11. See Cal. Penal Code §11166 (failure to report child abuse/neglect punishable by 6 months in the county jail or a fine of $1000 or both).
12. Imwinkelreid, supra note 2, at 200.
13. Ibid. Id
14. For example, in a civil lawsuit over the wrongful death of a beloved companion animal that is trying to make new law by attempting to recover damages in excess of the market value of the pet, the judge and jury are surely unlikely to profit from knowing the historical fact that "Jeremy Bentham, the founder of utilitarianism, believed that all sentient beings, and not just human beings, are morally considerable and can have moral duties owed to them" or that "Philosopher Mary Anne Warren has stated that nonhuman members of interspecies communities [her term for pets] have greater moral status than the same animal considered apart from those communities."
15. Imwinkelreid, supra note 2, at 201.
16. Id. at 200.
17. Id. at 200.
18. Id. at 200. This assumes, of course, that the standard in question is supported by an explicit argument when this may not always be the case.
19. Committee on Bioethics, American Academy of Pediatrics, "Guidelines on Forgoing Life-Sustaining Medical Treatment," Pediatrics 93, no. 3 (1994): 532-536, at 532-533, 535.
20. Imwinkelried, supra note 2, at 202.
21. Id. at 201.
22. J. Rachels, The Elements of Moral Philosophy (NY: McGraw-Hill, 2001): at 1.
23. Id. at 12.
24. Ibid. Id.
25. Id. at 13.
26. Id. at 14.
27. Id. at 14-15.
28. Imwinkelried, supra note 2, at 204-206.
29. Scofield, supra note 1, at 2.
30. P. McAllen and R. Delgado, "Moral Experts in the Courtroom," Hastings Center Report 14, no. 1 (1984): 27-34, at 31.
31. See, e,g., A. Caplan, "Bioethics on Trial," Hastings Center Report 21, no. 2 (1991): 19-20 (fairness of the legal process will be compromised if bioethics experts are used by one party to claim that "ethics" is on her side and not the other).
32. McAllen and Delgado, supra note 30, at 32.
33. See Friedman v. New York, 282 N.Y.S.2d 858 (NY Ct. Cl. 1967) in which a rabbi testified about the injured plaintiff's actions being consistent with her religious beliefs. This descriptive testimony enabled the plaintiff to avoid the defense's claim that her behavior, rather than the negligence of the defendant, caused her injuries.
34. McAllen and Delgado, supra note 30, at 29.
35. Scofield, supra note 1, at 28.
36. McAllen and Delgado, supra note 30, at 31.
37. Imwinkelried, supra note 2, at 208. He also notes that normative testimony may evidence a "consensus on particular normative propositions" and that such consensus helps maintain the legitimacy of the judiciary by "ensur[ing] that for the most part, their decisions are acceptable to the majority of the citizenry." Id. at 208. But ethicists should never tally the votes of citizens, other ethicists, or anyone else when constructing their substantive moral positions as popular vote alone never determines ethical justification and truth.
38. Id. at 199.
39. Id. at 207, 209.
40. Id. at 209.
41. Id. at 209, citing Wisconsin Ornamental Iron & Bronze Co. v. Tax Commission, 233 N.W. 72, 75 (Wis. 1930).
42. Id. at 209.
43. 1. The information is not being offered for a legislative purpose. 2. The legal standard should require or invite the decision maker to bring moral judgment to bear on the decision at hand. 3. The standard ought to be interpreted as alluding to normative moral judgment. 4. The law of the jurisdiction should allocate the decision to the trier of fact. Id. at 209-210.
44. Id. at 210.
45. Id. at 210. My reasons for concluding that neither example justifies the use of expert ethics testimony are discussed infra.
46. See note 51 and accompanying text, infra.
47. McAllen and Delgado, supra note 30, at 27.
48. Federal Rules of Evidence 702.
49. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
50. Calhoun v. Yamaha Motor Corp., 350 F.3d 316, 321 (3rd Cir. 2003).
51. Federal Rule of Evidence 702, Advisory Committee Note (emphasis added).
52. Rachels, supra note 27 and accompanying text.
53. Calhoun, supra note 50, at 321 (quoting Daubert, 509 U.S. at 590).
54. Id. (citations omitted).
55. See, e.g., A. Meisel, The Right to Die (New York: John Wiley & Sons, Supp., 2003).
56. McAllen and Delgado, supra note 30, at 31.
57. Ibid. Id.
58. G. Agich and B. Spielman, "Against the Skeptics: Ethics Expert Testimony" Journal of Medicine and Philosophy 22 (1997): 381-403, at 386.
59. Id. at 392-393.
60. To be sure, no legal license or social mandate exists that can be used to identify a bioethicist as there is for a physician, a general contractor, or even a cosmetologist. Nonetheless, bioethics is an academic field that has an ever-growing literature, common concepts, areas of at least rough consensus (e.g., informed consent), and some standards as articulated by certain respected individuals or groups (like the American Society for Bioethics and Humanities). Venerable medical schools and universities hire persons to teach and practice in this field. An individual purporting to be a bioethicist can be examined and cross-examined on her expert knowledge of this field and her experience in dealing with practical problems in medicine and the biological sciences.
61. Granted, bioethics does not meet all of the standard sociological criteria for a "profession." However, this does not mean that just anyone can claim to be an expert at bioethics as an academic field or to do bioethics in a professional manner and not as an amateur or hobbyist.
62. Imwinkelried recognizes this. "[T]he judge ought to insist that the expert provide more than his or her bottom-line conclusion concerning the normative propriety of the conduct, The judge should reject the expert's testimony unless the expert sets out his or her entire reasoning process, including his or her prelogical value assumptions." Imwinkelreid, supra note 2, at 211.
63. Id. at 202.
64. See Federal Rule of Evidence 706, supra note 10; In re Guardianship of Schiavo, 800 So.2d.640, 646 (Fla. Ct. App. 2001) (trial court to appoint independent physician to examine and evaluate patient's condition).
65. Probably the single best way to keep an ethics expert witness "honest" is for the opposing side to have its own ethicist of equal or greater education, experience, and confidence in conducting ethical analysis and discourse.
66. Imwinkelried, supra note 2, at 208.
67. This summarizes the policy as of the mid-90's of the California Department of Developmental Disabilities which operates several facilities that care for the developmentally disabled.
68. L. Nelson, C. Rushton, R. Cranford, R. Nelson, J. Glover, and R. Truog, "Forgoing Medically Provided Nutrition and Hydration in Pediatric Patients," Journal of Law, Medicine & Ethics 23, no. 1 (1995): 33-46.
69. Imwinkelried, supra note 2.
70. Id. at 210.
71. Id at 210.
72. Scheer v. Entel Radiological Associates, M.D., P.A. (No. 86-14316-14, Circuit Court, Pinellas County, Florida)
73. Hammond v. Bronson Healthcare Group, Inc., et al. (No. A90-0098-CK, Circuit Court, Kalamazoo County, Michigan, filed January 10, 1990).
74. Unless expressly sealed by court order, all papers filed with a court and all testimony held in open court are matters of public record and are available to anyone with the knowledge, patience, and resources to find them. The fact that they are not published in the usual sense of the word makes them no less public. It is neither a breach of confidentiality nor dishonorable scholarly practice to cite-accurately and in proper context, of course-the testimony of bioethicists (or anyone else) given in lawsuits. For example, my testimony as an expert witness in the Wendland case has been criticized in print. B. Spielman, "Professionalism in Forensic Bioethics," Journal of Law, Medicine & Ethics 30 (2002): 420-439, at 424.
75. Caplan, supra note 31.
76. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
77. The bioethicist who testified in Hall v. Anwar, 774 So.2d 41 (2001) (Fla. 2d Dist. Ct. App. 2001), petition for appellate review denied, 791 So.2d 1097 (Fla. 2001) should have stayed off the stand in the first place give the uselessness of his testimony. See Spielman, supra note 74, at 421.
78. Spielman, supra note 74, at 432-433.