Abstract
Not all bioethics testimony is based on generally accepted or peer-reviewed work. Some testimony is based on experience. This chapter considers when bioethics testimony that is based on an expert’s experience is reliable. Because demonstrating reliability of experience-based testimony is more complex than demonstrating reliability by the Frye or peer review and publication criteria, the bioethicist who attempts it must be what Schoen calls a highly functioning practitioner—not only an active participant in the social situation of practice, but also a careful observer of and reflector on that practice.1
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Endnotes
Schoen D. The reflective practitioner: How professionals think in action. New York, NY: Basic Books, 1983.
Ashcroft RE. Bioethics and conflicts of interest. Stud Histo Phil Biol & Biomed Sci 2004;35:155–165 at 156. The forms of bioethics work are so varied that Carl Elliot has characterized bioethicists as a “strange hybrid of policymaker, pundit, and bureaucrat.” Elliott C. Throwing a bone to the watchdog. Hastings Cent Rep 2001;31:9–12.
Yoder SD. The nature of ethical expertise. Hastings Cent Rep 1998;28:11–19.
Denbeaux MP, Risinger DM. Kumho Tire and Expert Reliability: How the Question You Ask Gives the Answer You Get. Seton Hall L Rev 2003;34:15–75.
Society for Health and Human Values—Task Force on Standards for Bioethics Consultation. Core competencies for health care ethics consultation. Glenview, IL: American Society for Bioethics and Humanities, 1998 at 13–15, 20–21.
In re: Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability Litigation; This Document Relates To All Cases, 2001 U.S. Dist. LEXIS 1174 (2001).
Society for Health and Human Values—Task Force on Standards for Bioethics Consultation. Core competencies for health care ethics consultation. Glenview, IL: American Society for Bioethics and Humanities, 1998 at 20–21. Reading codes is described as “knowledge” rather than a “skill” area in the ASBH Core competencies report. Relevant codes of ethics, professional conduct, and guidelines of accrediting organizations as they relate to ethics consultation is one of the nine knowledge areas. “According to the report, for basic knowledge in this area, one should read the relevant code or manuals.... In order for advanced knowledge in this area to be available to the process of consultation, ethics consultants should know who the contact persons might be to discuss the area in question (e.g., the person or persons responsible for the JCAHO survey). They should also know where to find the code or accreditation manual.”
Fishman DB. The case for pragmatic psychology. New York: New York University Press, 1999 at 185.
Nothing in this amendment is intended to suggest that experience alone—or experience in conjunction with other knowledge, skill, training, or education—may not provide a sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony. See, e.g., United States of America, Plaintiff-Appellee, v. Kathleen Kremser Jones, Defendant–Appellant, 107 F.3d 1147 (1997) (no abuse of discretion in admitting the testimony of a handwriting examiner who had years of practical experience and extensive training, and who explained his methodology in detail); Henry Tassin, et al. v. Sears, Roebuck and Co., et al., 946 F.Supp. 1241, 1248 (1996) (design engineer’s testimony can be admissible when the expert’s opinions “are based on facts, a reasonable investigation, and traditional technical/mechanical expertise, and he provides a reasonable link between the information and procedures he uses and the conclusions he reaches”). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 155 (1999) (stating that “no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience.”). If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial court’s gatekeeping function requires more than simply “taking the expert’s word for it.” See Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311, 1319 (1995). (“We’ve been presented with only the experts’ qualifications, their conclusions and their assurances of reliability. Under Daubert, that’s not enough.”) The more subjective and controversial the expert’s inquiry, the more likely the testimony should be excluded as unreliable. See James R. O’Conner, Plaintiff-Appellant, v. Commonwealth Edison Company and London Nuclear Services, Inc., Defendants-Appellees, and United States of America, Intervenor-Appellee, 13 F.3d 1090 (1994) (expert testimony based on a completely subjective methodology held properly excluded). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 1551 (1999) “(I)t will at times be useful to ask even of a witness whose expertise is based purely on experience, say, a perfume tester able to distinguish among 140 odors at a sniff, whether his preparation is of a kind that others in the field would recognize as acceptable.”
Dowdle MW. II Jurisprudential considerations: Deconstructing Graeme: Observations on “pragmatic psychology,” forensics, and the institutional epistemology of the courts. Psychol Pub Pol’y & Law 2003;9:301–332 at 312–313.
Agich G. The question of method in ethics consultation. Amer J Bioethics 2001;1:31–41 at 37.
Risinger DM. Preliminary thoughts on a functional taxonomy of expertise for the Post-Kumho World. Seton Hall L Rev 2001;31:507–537 at 524. I am indebted to Risinger’s discussion of translational expertise at 517–526.
Fishman DB. The case for pragmatic psychology. New York: New York University Press, 1999 at 186; Denbeaux MP, Risinger DM. Kumho tire and expert reliability: How the question you ask gives the answer you get. Seton Hall L Rev 2003; 34:15–75 at 57.
Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999). Daubert v. Merrell Dow Pharmaceuticals, Inc. requires the trial court to assure itself that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Advisory Committee Note, F.R.E. 702.
Heinrich v. Sweet, deposition of Robert M. Veatch on September 23, 1999, at p. 49 line 12 to p. 52 line 25.
Ramona Osgood, et al. v. Genesys Regional Medical Center, Deposition of Carl Cohen, Decided by Circuit Court, Genesee County, Michigan, Case No. 94-26731-NH, February 16, 1996, p. 6 line 5 to p. 49 line 21.
Heinrich v. Sweet, deposition of Robert M. Veatch on September 23, 1999, at p. 49 line 12 to p. 52 line 25.
Fishman DB. The case for pragmatic psychology. New York: New York University Press, 1999, at 170.
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(2007). Reliability of Bioethics Testimony. In: Bioethics in Law. Humana Press. https://doi.org/10.1007/978-1-59745-295-3_9
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