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As medicine advances, bioethical ethics loom larger in society. Today bioethical controversies are often on the front page. Bioethicists address such emotionally charged issues as the termination of life support for patients in vegetative states. Moreover, bioethicists are increasingly being called as witnesses in court. See, e.g., In re Rezulin Products Liability Litigation, 309 F. Supp. 2d 531 (S.D.N.Y. 2004). In the past, the legal system has availed itself of expert testimony from a wide range of disciplines, including experts in such disparate fields as science, law, accounting, engineering, journalism and religion. The issue is whether, as in the case of the other disciplines, the courts will now turn to bioethics as a source of admissible expert testimony. In April 2004, Seton Hall University School of Law hosted the first symposium devoted to this question. The participants included such leading authorities on the subject as David Barnes (Seton Hall), Kathleen Boozang (Seton Hall), Ken Kipnis (University of Hawaii), Stephen Latham (Quinnipiac University), Mary Majunder (University of Louisville), Lawrence Nelson (Santa Clara University), Michael Risinger (Seton Hall) and Bethany Spielman (Southern Illinois University). Bioethical testimony offered more frequently The symposium was certainly timely. Bioethical testimony is not only being offered more frequently than ever before; its admissibility must be scrutinized more carefully. For most of the last century, the Frye general-acceptance test governed the admissibility of scientific evidence. Many, if not most, Frye jurisdictions exempted nonscientific expertise from the scope of the test. “Strong, Language and Logic in Expert Testimony: Limiting Expert Testimony by Restrictions on Function, Reliability, and Form,” 71 Ore. L. Rev. 349, 361 (1992). Thus, in these jurisdictions the proponent of expert testimony could obviate the need for a Frye foundation by proffering the testimony as nonscientific evidence. However, in 1993 in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) the Supreme Court ruled that under Federal Rule of Evidence 702, the trial judge has a gatekeeping responsibility to pass on the admissibility of proffered, purportedly scientific testimony. The court emphasized that the judge must scrutinize the scientist’s underlying methodology to ensure that the testimony is reliable in the sense that it is supported by “appropriate validation.” In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the court extended the reach of Daubert. The Kumho court asserted that the trial judge’s gatekeeping responsibility applies across the board to all types of expertise. Thus, even when the expertise is of a nonscientific character, the judge must ensure that the testimony is reliable. In their often-cited article on ethical testimony, Delgado and McAllen describe the conventional wisdom that ethical testimony tends to fall into one of three categories: descriptive, metaethical and normative. “The Moralist as Expert Witness,” 62 B.U. L. Rev. 869 (1982). Admittedly, Delgado and McAllen frankly acknowledge that the three categories can “overlap and merge.” However, the classification is useful in sorting out the various subjects that an ethicist might testify about. At the risk of oversimplification, the distinction turns on the content of the proffered testimony-what the expert proposes testifying to. Descriptive testimony relates to the historical facts in ethics, metaethical testimony involves the meaning and logic of ethics and normative testimony concerns values in ethics. When an ethicist testifies descriptively, he or she makes an empirical claim about ethical beliefs or practices. For example, an ethicist might purport to describe the ethical beliefs that a group or profession avowed or actually practiced. Agich & Spielman, “Ethics Expert Testimony: Against the Skeptics,” 22 Medicine & Philosophy 381 (1997). It is a historical question whether a certain medical specialty has adopted a formal code of ethics forbidding a practice, and it is equally a historical question as to whether, despite the code, a majority of the specialists in that field engage in the practice. As historical questions, these descriptive claims lend themselves to empirical verification or falsification. There are rational, objective methods of investigating the ground truth of many descriptive claims. Metaethical testimony relates to the meaning and logic of ethics. Of the three categories, metaethical testimony seems to be the least common in court and is perhaps the most difficult to define. Delgado and McAllen tell us that the metaethicist’s functions include unraveling arguments to identify their ethical dimensions, explaining the logical content and meaning of ethical concepts, and exposing logical fallacies in ethical arguments. For their part, Spielman and Agich assert that “[m]etaethics is the study of language, concepts, and theories relevant to ethical theory-for instance, the meaning of ethical language, such as the meaning of the term ‘good.’ ” Finally, Humber and Almeder state that “ [t]he task of metaethics is to clarify and define certain key ethical terms (e.g., ‘good,’ ‘right,’ ‘duty,’ etc.), and to analyze, evaluate, and criticize different ethical theories.” Introduction, Biomedical Ethics and Law (2d ed., 1979). In short, the commentators have used varying language to describe the metaethicist’s domain. Yet there appears to be consensus that even when he or she offers testimony negatively critiquing the logic of an ethical argument, qua metaethicist the witness does not presume to suggest an affirmative answer to any normative value questions the witness identified. Thus, after dissecting a general issue of bioethics to separate out the normative aspect, a metaethicist would stop short of opining on the merits of the normative issue. Even if the metaethicist negatively criticized the logic of another ethicist’s argument, the metaethicist refrains from engaging in positive moralizing. In some cases, the metaethicist’s useful contribution may be helping the legal decision-maker to distinguish or sort out the medical component of the problem from the normative component. The metaethicist gives the decision-maker analytical insights by clarifying the meaning of concepts, tracing out the logic of ethical arguments and exposing logical fallacies in the arguments. At the Seton Hall symposium, Kipnis acknowledged that, traditionally, many commentators have divided the domain of bioethical testimony by using the descriptive/metaethical/normative scheme. However, he questioned the validity of that scheme. He noted that to the extent that the “metaethicist” testifies only that a concept has a certain meaning in a particular field or that the specialists in a field rely on a particular argument to justify their practice, the testimony is descriptive in character. To the extent that the metaethicist goes further and negatively attacks the logic underlying the argument, the testimony is akin to normative testimony. Admittedly, the metaethicist is not critiquing the argument on the specific ground that the argument or practice violate a positive moral value. Yet the metaethicist is venturing beyond description and is adopting a critical, evaluative perspective. In short, despite the popularity of the scheme, in the final analysis most bioethical testimony probably falls into the descriptive and normative categories. Normative testimony is clearly more controversial Normative testimony is easily the most controversial. Descriptive testimony answers the question, “As a matter of historical fact, what is the person’s or group’s belief or practice?” Normative testimony addresses a radical question, “What ought to be the practice?” The norm can be either prescriptive, requiring certain conduct, or proscriptive, forbidding particular behavior. The content of normative testimony is value rather than historical fact. While descriptive testimony could persuade the decision-maker that none of the specialists in a medical field follows a practice, a normative ethicist might take the prescriptive position that it is morally obligatory to comply with that practice. Similarly, suppose that metaethical testimony persuaded the decision-maker that a certain chain of moral argument both rests on defensible interpretations of the relevant ethical concepts and is logical in structure. Nevertheless, a normative ethicist might give proscriptive testimony that the argument is at odds with an overreaching moral value. In part, normative testimony is so controversial because the testimony can relate to highly debatable, divisive policy issues. For example, in the past, litigants have proffered ethicists’ testimony on the following issues, inter alia: When should the relatives of a patient in a persistent vegetative state be allowed to terminate the patient’s life support? Ought the parents of a minor child suffering kidney failure be permitted to authorize a kidney transplant from the child’s minor sibling? Each sentence poses a question, and in each question the key verb is “should” or “ought.” A court cannot resolve any of these questions solely on the basis of descriptive testimony about current medical practices. Nor can a court decide these questions on the basis of metaethical testimony evaluating only the logic of the competing arguments. To resolve these questions, the court must make a policy judgment, and sometimes in making such judgments, a court will have to draw on moral values. When, if ever, should a court accept one of these types of testimony? This column will address that question in a series of articles drawing on the Seton Hall symposium. The next article will review the emerging limitations on the admissibility of descriptive and metaethical testimony. The last two articles will deal with the even more challenging topic of normative testimony by bioethicists. Edward J. Imwinkelried is a professor at the University of California, Davis School of Law and the co-author of Scientific Evidence (3d. ed. 1999).

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