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The first column in this series noted that there is currently a sharp controversy over the admissibility of expert testimony by ethicists. However, the extent of the controversy should not be overstated. There are a number of points of agreement. More specifically, there is some consensus that relevant descriptive and metaethical testimony can satisfy the governing admissibility standards. Those standards are set out in Federal Rules of Evidence 702 and three Supreme Court decisions construing Rule 702, notably Daubert, Joiner and Kumho. In pertinent part, Rule 702 provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto . . . . “In Daubert, 509 U.S. 579 (1993), the court ruled that before admitting purportedly scientific testimony, the judge must find that the testimony amounts to reliable ‘scientific . . . knowledge’ that will assist the trier of fact. The court listed a number of factors that the trial judge is to consider in deciding whether the proffered testimony rests on valid scientific methodology and qualifies as reliable scientific knowledge. “In Joiner, 522 U.S. 136 (1997), the court emphasized that the trial judge has discretion in applying the factors mentioned in Daubert. However, the court stressed that the trial judge may not accept mere ipse dixit by an expert. In Kumho, 526 U.S. 137 (1999), the court added that the requirement for a showing of reliability applies across the board even when the expertise is non-scientific in character. “The court explained that in the case of non-scientific expertise, the judge has discretion in selecting the factors to be used to assess the reliability of the testimony. Given that framework, in appropriate cases descriptive and metaethical testimony can qualify for admission.” Descriptive testimony: the easiest to rationalize Of the three types of ethical testimony, the admissibility of descriptive category is the easiest to rationalize. When the witness is prepared to lay a foundation demonstrating that his or her testimony is descriptive in nature, the witness is not testifying to his or her personal moral beliefs. The witness is making an empirical claim about the beliefs or practices of a group of people. For instance, the witness might assert that a particular school of ethical thought exists or that a certain group of physicians observe a specific standard in their actual conduct. Such claims can certainly be relevant at trial. The existence of a practice within a group of medical practitioners could be an ultimate fact in issue. Suppose, for instance, that the plaintiff has filed a medical malpractice action. Under the tort law in some jurisdictions, it is a complete defense to liability if the physician has complied with the standard of conduct observed by practitioners in that field-the so-called medical professional standard. Dan B. Dobbs, The Law Of Torts � 242 (2000). Descriptive claims can not only be relevant; in addition, there are often objective bases demonstrating the reliability of the claim, as mandated by Daubert. A wide variety of types of evidence is available to demonstrate the existence of the set of beliefs or practices: bioethics text; official codes of medical ethics such as the American Academy of Orthopaedic Surgeons’ Principles of Medical Ethics and Professionalism in Orthopaedic Surgery; guidelines promulgated by the Centers for Disease Control and Prevention; and Current Opinions of the AMA Council on Ethical and Judicial Affairs. When the expert makes a descriptive claim, the courts need not accept the expert’s bald assertion that the set of beliefs or practices exists; the judge can demand that the proponent marshal the above types of hard evidence demonstrating its existence. In some cases, the claim will fail. However, in other cases, the showing will be both facially relevant and “reliable” in the Daubert sense. There also seems to be emerging agreement that when relevant, metaethical testimony can be admissible. Such testimony relates to the logic of ethics. For example, after a prior witness has given descriptive testimony about a prevailing standard and the argument used to justify the standard, a metaethicist might testify to explain the meaning of concepts employed in the argument or to differentiate the moral from the medical components of the argument. Like descriptive evidence, the metaethicist’s testimony is non-normative; the expert does not endeavor to suggest answers to any normative question facing the decision-maker. However, even so limited, the testimony can be relevant. Delgado and McAllen give an example of hypothetical metaethical testimony differentiating between the moral and medical facets of a dispute. “The Moralist as Expert Witness,” 62 B.U. L. Rev. 869, 880 (1982). They base their hypothetical on Hart v. Brown, 289 A.2d 386 (Conn. Super. Ct. 1972), a case in which the parents of 7-year-old twin girls sought a court order authorizing an isograft kidney transplant between the children after the physicians had refused to perform the operation: “The situation presented in Hart v. Brown illustrates how a witness might convey metaethical expertise in a courtroom setting. In that case the court had to decide whether to authorize nontherapeutic treatment for an incompetent, and might well have appointed a metaethicist to analyze the moral principles and interests implicated by the proposed transplant. A sound decision seemingly required separation of non-normative questions (What is the purpose of the operation? Will it succeed? What will the donor’s attitude be towards the decision upon reaching maturity?) from normative ones (Does morality permit-or require-a person to sacrifice a measure of his or her own physical well-being to improve that of another? Does morality permit-or require-a person to extract such a sacrifice from a second person to benefit a third person?) “An expert trained and experienced in the analysis of complex moral problems can perform this preliminary analysis without presuming to suggest answers to any of the normative questions that the analysis discovers. The trier therefore retains complete autonomy to resolve the normative questions as it wishes.” A metaethicist could provide relevant testimony by exposing logical fallacies in the ethical arguments supporting a widespread practice. As previously stated, in some jurisdictions, in medical malpractice cases the customary standard of care is dispositive. However, there is an incipient trend away from the medical professional standard. Peters, “The Quiet Demise of Custom: Malpractice Law at the Millennium,” 57 Wash. & Lee L. Rev. 163, 164 (2000). Under this approach, the trier retains a measure of discretion to decide that from a broader social perspective, the standard practice is objectively unreasonable. Suppose that a medical malpractice case is being tried in a jurisdiction following this approach. During the defense case-in-chief, the physician’s attorney might offer testimony describing the prevailing practice observed by members of the profession. Since these jurisdictions ascribe significant weight to the extant professional standard, the defense’s descriptive testimony would be admissible. However, during the plaintiff’s rebuttal, the plaintiff might call a metaethicist to critique the logic of the arguments supporting the prevailing practice. In a legal system committed to rational decision-making, in deciding whether to uphold a customary practice, the trier ought to be allowed to discount a practice resting on flawed logic. In short, metaethical testimony would be relevant even though the metaethicist stopped short of venturing normative opinions based on value judgments. Metaethical testimony ‘reliable’ in ‘Daubert’ sense Some metaethical testimony can also be “reliable” in a Daubert sense. Assume that a metaethicist limits his or her testimony to assertions that a particular term has a definite, accepted meaning within a given specialty field and that in the field, certain arguments are typically advanced to justify a particular practice. In the final analysis, those assertions are descriptive in nature and can be tested as such. Alternatively, suppose that the metaethicist asserts that the commonly advanced arguments embody logical fallacies. Although the metaethicist is not affirmatively invoking a moral value to critique the argument, the expert’s assertion is akin to a normative claim; the expert is going beyond mere description to critique the argument. However, there are a number of recognized, objective rules of inference to determine the validity of lines of argument. See Irving M. Copi & Carl Cohen, Introduction to Logic (9th ed. 1994). Once again, the judge need not take the expert’s assertion at face value; the judge can invoke the rules of logic to decide for himself or herself whether the logic underlying the arguments is flawed. If we turn finally to normative testimony by bioethicists, the consensus ends. That is the controversial issue. We shall take that issue up in the final two columns in this series. Edward J. Imwinkelried has been appointed the Edward L. Barrett Professor of Law at the University of California, Davis School of Law.

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