Bioethics testimony: Untangling the strands and testing their reliability

Journal of Law, Medicine and Ethics

Volumn 33, Issue 2, 2005, Pages 222-233

  Spielman, Bethany J ^a,b  

^a Department of Medical Humanities and Law ^*

^b SOUTHERN ILLINOIS UNIVERSITY SCHOOL OF MEDICINE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 23944518394     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2005.tb00488.x     Document Type: Conference Paper

References (45)

1. A. R. Jonsen and S. E. Toulmin, The Abuse of Casuistry: A History of Moral Reasoning (Berkeley: University of California Press, 1988): 293-4.
2. Methods of Medical Ethics, J. Sugarman and D. P. Sulmasy, eds. (Washington, D.C.: Georgetown University Press, 2001).
3. Each of the following conditions must be met: 1). The information is not being preferred for an essentially legislative purpose, (i.e., an adjudicative purpose); 2). The announced standard should be interpreted as requiring or inviting the decisionmaker to bring moral judgment to bear in order to make the decision (e.g.. not strict liability); 3). The standard ought to be interpreted as alluding to normative moral judgment (e.g. not alluding to a description of ordinary lay persons' morality); and 4). The law of the jurisdiction in question allocates the decision to the trier of fact (e.g. assigning to the jury in open court.)
4. E. Imwinkelried, "Expert Testimony by Ethicists: What should be the Norm?" Journal of Law, Medicine & Ethics 33, no. 2 (2005): 198-221, at 209.
5. Imwinkelried, supra note 4, at 209.
6. FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 813-14-(1978), rev'g in part 555 F.2d 938 (D.C. Cir. 1977).
7. Davis thought "the category of "judgmental or predictive "facts should be further developed. (K. C. Davis, "Facts in Lawmaking," Columbia Law Review 78 (1980): 931-942, at 936). Davis wanted to add another kind of fact - "evaluative fact" - to this category. The specific kind of evaluative determinations he discussed were stock valuations. ("Facts in Lawmaking" at 937).
8. Imwinkelried, supra note 4, at 209.
9. Imwinkelried, supra note 4, at 209. Some literature assumes that metaethics is nonproblematic from an evidentiary perspective. Although space does not permit discussion of the question here, I do not make that assumption.
10. Imwinkelried, supra note 4, at 209.
11. Imwinkelried supra note 4, at 209.
12. Imwinkelried supra note 4, at 209.
13. The first mistaken assumption resembles, but is not identical to, generalization of expertise.
14. This assumption is not a great leap in a medical malpractice case. See D. M. Risinger, "Preliminary Thoughts on a Functional Taxonomy of Expertise for the Post-Kumho World," Seton Hall Law Review 31 (2000): 508-537, at 527-528.
15. Biddison v. Facey Medical Group, Super. Ct. of California, No. PC016239X, deposition of John J. Paris, S.J., on June 17, 1998, page 79, line 7 through page 80, line 4.
16. Biddison, deposition of John J. Paris at p. 81 line 19-p. 82 line 2.
17. Biddison, deposition of John J. Paris at page 82, line 3 though page 82, line 7.
18. General Electric v. Joiner, 522 U.S. 136 at 146.
19. Advisory Committee Note to Federal Rule of Evidence 702.
20. Very little literature examines ways of using empirical methods appropriately in ethics. See B. A. Brody, "Quality of Scholarship in Bioethics," Journal of Medicine and Philosophy 15 (1990):161-78;
21. R. M. Arnold and L. Forrow, "Empirical Research in Medical Ethics: An Introduction," Theoretical Medicine 14 (1993):195-196;
22. B. A. Brody, "Assessing Empirical Research in Bioethics," Theoretical Medicine 4 (1993): 211-219;
23. J. T. Klein, Interdisciplinarity: History Theory and Practice (Detroit: Wayne State University Press, 1990): at 85-94. Julie Klein expresses concern about the quality of borrowing, as well as hasty and indiscriminate borrowing in interdisciplinary work. She lists six common problems in borrowing: 1. distortion and understanding of borrowed material; 2. use of data, methods, concepts, and theories out of context; 3. use of borrowings out of favor in their original context (including an overreliance on "old chestnuts"); 4. "illusions of certainty" about phenomena treated with caution or skepticism in their original disciplines; 5. overreliance on one particular theory or perspective; and 6. a tendency to dismiss contradictory tests, evidence, and explanations.
24. R. De Vries, "The Facts of Bioethics," Society 38 (2001): 36-40.
25. See Risinger, note 14, Taxonomy on this point at 28.
26. G. Joseph, "Less than 'Certain' Medical Testimony," Medical Trial Technique Quarterly 14 (1978): 10-22.
27. I am aware that testimony based on astrology and necromancy could also meet these criteria, and that they would allow some "junk" testimony. Nevertheless, the criteria are more demanding than those Prof. Imwinkelried suggests.
28. T. L. Beauchamp and J. F. Childress, Principles of Biomedical Ethics, 5th ed., (New York: Oxford University Press, 2001): at 129.
29. State of Utah v. Robert Allen Weitzel, Dist. Ct. of Davis Co., State of Utah, Case No. 991700983, testimony of Perry Fine, December 11, 2000 at 28, line 6 through line 25.
30. The literature on double effect reasoning is vast. For two views of double effect reasoning in end of life cases, see J. Boyle, "Medical Ethics and Double Effect: The Case of Terminal Sedation," Theoretical Medicine 25 (2004): 51-60
31. and T. E. Quill, R. Dresser and D. W. Brock, "The Rule of Double Effect - A Critique of Its Role in End-Of-Life Decision Making," N. Engl. J. Med. 337 (1997): 1768-71.
32. Although many bioethics experts might think this is reliable testimony because they agree with the expert's major premise and his conclusions, reliability in law requires more.
33. Imwinkelried, supra note 4, at 210, note 297.
34. In re Baby K, 16 F.3d 590, 592-93 (4th Cir. 1994).
35. R. Gillon, "Four Scenarios," Journal of Medical Ethics 29 (2003): 267-8.
36. Fairfax Hospital v. Baby K, deposition of Robert M. Veatch on March 31, 1993 at 112 line 8 to 113 line 20.
37. Fairfax Hospital v. Baby K, deposition of John C. Fletcher on April 13, 1993 at 143 line 4-24.
38. Fairfax Hospital v. Baby K deposition of John C. Fletcher at 39 line 3 to 40 line 10. In Prince v. Massachusetts, 321 U.S. 158 (1944), a nine year old girl was required by her aunt and custodian to sell religious materials, in violation of Massachusetts child labor laws. "Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves."
39. Fairfax Hospital v. Baby K deposition of John C. Fletcher at 40, line 20 through 41, Line 13.
40. MacIntyre does discuss moral harm in the context of social science research. But he does not claim that longer life, even low-quality life, is a moral harm to an individual. He distinguishes moral harm from harms to interests. "[M]oral harm," he writes "is inflicted on someone when some course of action produces in that person a greater propensity to commit wrongs. Inducing another to look for the quick and undeserved reward and teaching others to behave in ways that will produce cynicism are clearly examples of the infliction of moral harm." A. MacIntyre, "Risk, Harm, and Benefit Assessments as Instruments of Moral Evaluation" in Ethical Issues in Social Science Research, ed. T. L. Beauchamp, et al. (Baltimore: Johns Hopkins, 1982): 175-189 at 178. Joel Feinberg's Harm to Others describes the concept of moral harm as central to the teaching of Socrates, Plato and the Stoics. But Feinberg understood the moral harm discussion to be about whether a morally degraded character is itself a harm independent of its effect on its possessors' interests.
41. J. Feinberg, The Moral Limits of the Criminal Law: Harm to Others (New York: Oxford, 1987): at 66.
42. Stephen Latham has argued that judges should be reluctant to find bioethics unreliable because its two major reasoning methods are so similar to common law reasoning. But reliability is not about fields as a whole, rather it is about testimony. The reasoning is similar, but bioethics as an institution lacks many of the features that enhance law's reliability, such as authoritative interpreters, and standardized presentations of legal decisions in law reporters and legal databases. S. Latham, "Expert Bioethics Testimony," Journal of Law, Medicine & Ethics 33, no. 2 (2005): at 242-247.
43. B. J. Spielman, Bioethics in Law: A Guide for Attorneys, Judges, Bioethicists, and Health Care Professionals (New York: Humana Press, forthcoming 2006).
44. See also B. J. Spielman, "Professionalism in Forensic Bioethics," Journal of Law, Medicine, & Ethics 30, no. 3 (2002): 420-49.
45. Advisory Committee Note to Federal Rule of Evidence 702.