Engineers play an important role when they serve as an expert witness as part of the litigation process. Engineers provide the triers of fact and of law with important assistance in better understanding the many technical issues faced by those called upon to resolve the conflicts that arise during the litigation, arbitration, mediation, and settlement processes.

On several occasions, the NSPE Board of Ethical Review has had an opportunity to consider ethical cases relating to the role of individual engineers serving as expert witnesses on behalf of their clients. For example, in a case that is strikingly similar to the present case, BER Case No. 82-6, Engineer A was retained by the U.S. government to study the causes of a dam failure. Later, Engineer A was retained by the contractor on this project, who had filed a claim against the U.S. government for additional compensation. In finding that it was unethical for Engineer A to be retained as an expert witness for the contractor under these circumstances, the Board noted that as an expert witness, Engineer A would be required to state his opinion based upon his firsthand knowledge and on facts of record. There was a danger that Engineer A's opinions, based on his firsthand knowledge and his understanding of the facts of record, would touch upon privileged, specialized, and confidential knowledge gained while he was retained by the U.S. government. Indeed, he might be called upon to give an opinion as to the very facts with which he was involved as a consultant with the government. There can be no doubt that NSPE Code Section III.4.b. was enacted to prevent engineers from disclosing such information. For those reasons the Board found that it would be unethical for an engineer who was retained by the U.S. government to be retained as an expert witness for a contractor who filed a claim against the U.S. government for additional compensation.

Similarly, the Board is of the view that the facts in the present case are somewhat similar to those faced by the Board in Case No. 82-6, except for two basic issues. In the present case, under the facts, Engineer A improperly agreed to be retained by a second party on the very same matter for which Engineer A was retained by the first party who was in an adversarial relationship with the second party without the consent of the first party. However, to make matters worse, Engineer A then provided a professional opinion that was completely different than the professional opinion provided to the first party, the insurance company. Without new information, and there is no reason to believe there is any, an engineer cannot issue a contradictory report that is truthful and objective. These actions not only undermine the credibility of Engineer A, but also cast a poor reflection upon engineers everywhere. Engineer A, while retained by the insurance company, had access to the insurance company’s confidential information, company documents and other information. In the opinion of the NSPE Board of Ethical Review, Engineer A’s conduct was well beyond any acceptable standards of professional behavior and should be condemned for what it is - a serious violation of the NSPE Code of Ethics.