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Bioethics Testimony: Untangling the Strands and Testing Their Reliability

Published online by Cambridge University Press:  01 January 2021

Bethany J. Spielman
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Extract

In The Abuse of Casuistry Jonsen and Toulmin describe one view of moral reasoning as follows:

Those who take a rhetorical view of moral reasoning… do not assume that moral reasoning relies for its force on single chains of unbreakable deductions which link present cases back to some common starting point. Rather (they believe), this strength comes from accumulating many parallel, complementary considerations, which have to do with the current circumstances of the human individuals and communities involved and lend strength to our conclusions, not like links to a chain but like strands to a rope or roots to a tree.

Whether or not all moral reasoning resembles “strands to a rope,” bioethics testimony certainly does. Bioethics testimony is eclectic, a composite of many loosely woven strands. Rarely, if ever, is bioethics testimony “a chain of unbreakable deductions.” Rarely is it “pure” ethics, much less pure normative ethics.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 33 , Issue 2 , Summer 2005 , pp. 222 - 233
Copyright
Copyright © American Society of Law, Medicine and Ethics 2005

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References

Jonsen, A. R. and Toulmin, S. E., The Abuse of Casuistry: A History of Moral Reasoning (Berkeley: University of California Press, 1988): 293–4.Google Scholar
Methods of Medical Ethics, Sugarman, J. and Sulmasy, D. P., eds. (Washington, D.C.: Georgetown University Press, 2001).Google Scholar
Each of the following conditions must be met: 1). The information is not being proferred for an essentially legislative purpose, (i.e., an adjudicative purpose); 2). The announced standard should be interpreted as requiring or inviting the decisionmaker to bring moral judgment to bear in order to make the decision (e.g. not strict liability); 3). The standard ought to be interpreted as alluding to normative moral judgment (e.g. not alluding to a description of ordinary lay persons' morality); and 4). The law of the jurisdiction in question allocates the decision to the trier of fact (e.g. assigning to the jury in open court.)Google Scholar
Imwinkelried, E., “Expert Testimony by Ethicists: What should be the Norm?” Journal of Law, Medicine & Ethics 33, no. 2 (2005): 198–221, at 209.CrossRefGoogle Scholar
Imwinkelried, , supra note 4, at 209.Google Scholar
FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 813–14-(1978), rev’g in part 555 F.2d 938 (D.C. Cir. 1977).Google Scholar
Davis thought “the category of “judgmental or predictive “facts should be further developed. (Davis, K. C., “Facts in Lawmaking,” Columbia Law Review 78 (1980): 931–942, at 936). Davis wanted to add another kind of fact – “evaluative fact” – to this category. The specific kind of evaluative determinations he discussed were stock valuations. (“Facts in Lawmaking” at 937).CrossRefGoogle Scholar
Imwinkelried, , supra note 4, at 209.Google Scholar
Imwinkelried, , supra note 4, at 209. Some literature assumes that metaethics is nonproblematic from an evidentiary perspective. Although space does not permit discussion of the question here, I do not make that assumption.Google Scholar
Imwinkelried, , supra note 4, at 209.Google Scholar
Imwinkelried supra note 4, at 209.Google Scholar
Imwinkelried supra note 4, at 209.Google Scholar
The first mistaken assumption resembles, but is not identical to, generalization of expertise.Google Scholar
This assumption is not a great leap in a medical malpractice case. See Risinger, D. M., “Preliminary Thoughts on a Functional Taxonomy of Expertise for the Post-Kumho World,” Seton Hall Law Review 31 (2000): 508–537, at 527–528.Google Scholar
Biddison v. Facey Medical Group, Super. Ct. of California, No. PC016239X, deposition of John J. Paris, S.J., on June 17, 1998, page 79, line 7 through page 80, line 4.Google Scholar
Biddison, deposition of John J. Paris at p. 81 line 19-p. 82 line 2.Google Scholar
Biddison, deposition of John J. Paris at page 82, line 3 though page 82, line 7.Google Scholar
General Electric v. Joiner, 522 U.S. 136 at 146.Google Scholar
Advisory Committee Note to Federal Rule of Evidence 702.Google Scholar
De Vries, R., “The Facts of Bioethics,” Society 38 (2001): 36–40.CrossRefGoogle Scholar
See Risinger, , note 14, Taxonomy on this point at 28.Google Scholar
Joseph, G., “Less than ‘Certain’ Medical Testimony,” Medical Trial Technique Quarterly 14 (1978): 10–22.Google Scholar
I am aware that testimony based on astrology and necromancy could also meet these criteria, and that they would allow some “junk” testimony. Nevertheless, the criteria are more demanding than those Prof. Imwinkelried suggests.Google Scholar
Beauchamp, T. L. and Childress, J. F., Principles of Biomedical Ethics, 5th ed., (New York: Oxford University Press, 2001): at 129.Google Scholar
State of Utah v. Robert Allen Weitzel, Dist. Ct. of Davis Co., State of Utah, Case No. 991700983, testimony of Perry Fine, December 11, 2000 at 28, line 6 through line 25.Google Scholar
The literature on double effect reasoning is vast. For two views of double effect reasoning in end of life cases, see Boyle, J., “Medical Ethics and Double Effect: The Case of Terminal Sedation,” Theoretical Medicine 25 (2004): 51–60 and Quill, T. E. Dresser, R. and Brock, D. W., “The Rule of Double Effect – A Critique of Its Role in End-Of-Life Decision Making,” N. Engl J. Med 337 (1997): 1768–71.Google Scholar
Although many bioethics experts might think this is reliable testimony because they agree with the expert's major premise and his conclusions, reliability in law requires more.Google Scholar
Imwinkelried, , supra note 4, at 210, note 297.Google Scholar
In re Baby K, 16 F.3d 590, 592–93 (4th Cir. 1994).Google Scholar
Gillon, R., “Four Scenarios,” Journal of Medical Ethics 29 (2003): 267–8.CrossRefGoogle Scholar
Fairfax Hospital v. Baby K, deposition of Robert M. Veatch on March 31, 1993 at 112 line 8 to 113 line 20.Google Scholar
Fairfax Hospital v. Baby K, deposition of John C. Fletcher on April 13, 1993 at 143 line 4 – 24.Google Scholar
Fairfax Hospital v. Baby K deposition of John C. Fletcher at 39 line 3 to 40 line 10. In Prince v. Massachusetts, 321 U.S. 158 (1944), a nine year old girl was required by her aunt and custodian to sell religious materials, in violation of Massachusetts child labor laws. “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”Google Scholar
Fairfax Hospital v. Baby K deposition of John C. Fletcher at 40, line 20 through 41, Line 13.Google Scholar
MacIntyre does discuss moral harm in the context of social science research. But he does not claim that longer life, even low-quality life, is a moral harm to an individual. He distinguishes moral harm from harms to interests. “[M]oral harm,” he writes “is inflicted on someone when some course of action produces in that person a greater propensity to commit wrongs. Inducing another to look for the quick and undeserved reward and teaching others to behave in ways that will produce cynicism are clearly examples of the infliction of moral harm.” MacIntyre, A., “Risk, Harm, and Benefit Assessments as Instruments of Moral Evaluation” in Ethical Issues in Social Science Research, ed. Beauchamp, T. L. et al. (Baltimore: Johns Hopkins, 1982): 175–189 at 178. Joel Feinberg's Harm to Others describes the concept of moral harm as central to the teaching of Socrates, Plato and the Stoics. But Feinberg understood the moral harm discussion to be about whether a morally degraded character is itself a harm independent of its effect on its possessors' interests. Feinberg, J., The Moral Limits of the Criminal Law: Harm to Others (New York: Oxford, 1987): At 66.Google Scholar
Stephen Latham has argued that judges should be reluctant to find bioethics unreliable because its two major reasoning methods are so similar to common law reasoning. But reliability is not about fields as a whole, rather it is about testimony. The reasoning is similar, but bioethics as an institution lacks many of the features that enhance law's reliability, such as authoritative interpreters, and standardized presentations of legal decisions in law reporters and legal databases. Latham, S., “Expert Bioethics Testimony,” Journal of Law, Medicine & Ethics 33, no. 2 (2005): At 242–247.CrossRefGoogle Scholar
Spielman, B. J., Bioethics in Law: A Guide for Attorneys, Judges, Bioethicists, and Health Care Professionals (New York: Humana Press, forthcoming 2006). See also Spielman, B. J., “Professionalism in Forensic Bioethics,” Journal of Law, Medicine, & Ethics 30, no. 3 (2002): 420–49.Google Scholar
Advisory Committee Note to Federal Rule of Evidence 702.Google Scholar