Advise or Not Advise

 

While carrying cardboard boxes filled with a powerful acidic solution Edward Evans suffered serious burn injuries as a result of one of the bottles crashing to the floor. The bottle fell through the bottom of one of the boxes Edward was carrying for his employer.

Edward's attorney hired engineer Gregory Green to investigate the cause of the accident. Gregory quickly determined that, although the bottles had screw-on caps, the bottom of the box was damaged by leakage and that several of the other bottles in the box had loose caps. Gregory's analysis was reported by Edward's attorney during the court proceedings, but the attorney did not invite Gregory to come to court and testify as an expert witness. Edward and his attorney lost the case.

When Gregory learned of the disposition of the case, he wondered if he should have pressed Edward's attorney to invite him testify in court as an expert witness. Gregory was quite convinced that Edward would have had no difficulty winning his case if Gregory had been given the opportunity to testify. At the same time, he realized that engineers are supposed to be "objective," making themselves available to provide truthful testimony, but serving simply as "advocates." [See, e.g., section II.3.a of the NSPE Code of Ethics: "Engineers shall be objective and truthful in professional reports, statements or testimony." See, also, section II.3.c.: "Engineers shall issue no statements, criticisms or arguments on technical matters which are inspired or paid for by interested parties, unless they have prefaced their comments by explicitly identifying the interested parties on whose behalf they are speaking, and by revealing the existence of any interest the engineers may have in the matters."]

Would it have been appropriate for Gregory to advise Edward's attorney to have him testify as an expert witness? What relevant facts are presented? What factual, conceptual, or application issues does this case raise?