Each occupational “discipline” has its own shared beliefs or value systems. They are intended to guide or influence personal decisions and judgments. This is a form of a known bias. It can easily serve as a factual filter and may provide an extraneous perceptual flavoring about a fact situation. People can see what they want to see and perceive what is consistent with their expectations and beliefs. This can result in misun- derstanding or difficulty when what is appropriate in one discipline (such as ergonomics) is applied, utilized, or translated for use in another discipline (such as the law). The translator (between disciplines) needs to know something about both worlds or errors of communication, understanding, and compre- hension should be created. For example, the research scientist may believe that absolute certainty does not exist for any conclusion and further research is always necessary, but the law may definescientific certaintyas something that might be only above the 50% level of present belief.
The termpeer approvalmay elicit statements that there is and always should be constructive criticisms by fellow scientists, appropriate questions as to better methodology, and productive doubts by fellow scientists. Scientists may believe that attaining full peer approval is just an illusionary concept. This ques- tioning attitude, by peer group scientists, may be particularly present for researchapplications(to the
“real world”) or for generalizing research findings (going beyond the original research context).
However, despite rejection of the concepts of full peer approval or the need to attempt to attain such a approval from other scientists, some proof of peer approval may be a minimum requirement for per- mitting an opinion to be expressed in a court of law. No peer approval may mean no helpful testimony for the trier-of-fact. The translator (between disciplines) provides meaning to words and concepts by using the message recipient’s own language. Obviously, there should be effective, truthful, and meaning- ful communication by those persons who testify or offer scientific opinions in a societal context. If there is bias, it should be disclosed.
It is the trial court judge who has “the power” to make decisions regarding whether or not the expert witness’s testimony will be presented to the jury. If the testimony is admissible, the judge may then decide on what issues, in what depth or scope, and what limiting jury instructions or judge’s cautionary com- ments may be given to the jurors. The discretion of the trial judge is considerable. How the judges control the courtroom and testimony varies widely within a particular jurisdiction or courthouse. They vary widely in interpreting the law and applying it to the facts of a particular case. This is because of biases created by strong personal beliefs, basic value systems, their strengths and limits of knowledge in special- ized areas, the techniques they employ to control the courtroom, the kind of evidence and advocacy being presented, the possible outcome of the case and its consequences, and possible local reelections or judicial advancement concerns. Therefore, the expert witness should not be offended, displeased, shocked, chagrined, or elated at the admissibility of the testimony or the judge’s attitude toward his or her testi- mony or that of any other expert witness in the case. Perceptions of bias in the courtroom should not encourage insertion of responsive bias or altered demeanor. The expert witness should be prepared to comply and to adjust to the trial judge’s rulings. It is the trial judge who controls the legal process by
Legal Issues in Occupational Ergonomics 3-15
pretrial, in-trial, and posttrial rulings. The expert’s role is not to respond to perceived bias, but to remain a calm, independent, neutral person who can assist the trier-of-fact (judge or jury), while maintaining personal integrity, intellectual rigor, and fairness. Bias may be everywhere, but it should not prevail.
References
Campbell v Metro. Prop. & Gas Ins. Co., 239 F.3d 179, 184 (2d Cir., 2001). Expert qualifications.
Clausen v M/V New Carissa, 339 F.3d 1049 (9th Cir., 2003).
Daubert v Merrell Dow Pharms.Inc., 509 U.S. 579 (1993);Gen. Elec. Co. v Joiner, 522 U.S. 136 (1997); and Kumho Tire Co., Ltd. v Carmichael, 526 U.S. 137 (1999). The Daubert doctrine is codified in Federal Rule of Evidence 702. It states: “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 qua- lified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”
Davis v Caterpillar, Inc., 787 So. 2d 894 (Fla. 3d DCA, 2001).
Frye v United States, 293 F.1013 (D.C. Cir, 1923).
Goodstein, David, How science works, inReference Manual on Scientific Evidence, 2nd ed., 2000, 70.
Holy Cross Hops., Inc v Marrone, 816 So. 2d 1113, 1117 (Fla. 4th DCA, 2001).
Jennings v Palomar Pomerado Health Systems, Inc., 114 Cal. App. 4th 1108 (Dec. 2003), 4th Dist., Review denied.
Kepner, C.H. and Tregoe, B.B., The rational manager: a systematic approach to problem solving and decision making. New York: McGraw-Hill, 1965.
Kumho Tire Co. v Carmichael, 526 U.S. 137, 141, 142 (1999).
Price, Dennis L., Effects of alcohol and drugs, in Peters, George A. and Peters, Barbara J., Eds.,Automotive Engineering and Litigation, Vol. 2, New York and London: Garland Law Publishing, 1988, pp. 489 – 334.
Rickgauer v Sarkar, 804 So. 2d 502, 504 (Fla. 5th DCA, 2001).
Roberti v Andy’s Termite & Pest Control Inc., 113 Cal. App. 4th 893 (Nov. 2003), 2nd Dist., Review denied 2-18-04.
Ronnie Jones and Sylvia Jones v Goodyear Tire & Rubber Co., DCA, 3d Dist., Fla., July 2003 (Case 3 DO1-3583).
Triggs, Thomas J., Speed estimation, in Peters, George A. and Peters, Barbara J., Eds.,Automotive Engin- eering and Litigation, Vol. 2, New York and London: Garland Law Publishing, 1988, pp. 569 – 598.
Vinal, Robert W., Criminal liability of contractors, engineers, and building owners regarding asbestos projects, in Peters, George A. and Peters, Barbara J., Eds., Sourcebook on Asbestos Diseases:
Medical, Legal, and Engineering Aspects, Vol. 5, Asbestos Abatement. Salem, NH: Butterworth Legal Publishers, 1991, pp. 45 – 62.
Wang, C. Julius., Product improvement from integrated quantitative techniques, in Peters, George A. and Peters, Barbara J., Eds., Automotive Engineering and Litigation, Vol. 5, New York: Wiley Law Publications, 1993, pp. 121 – 148.
Recommended Further Reading
Peters, George A. and Peters, Barbara J., Automotive Vehicle Safety, London and New York: Taylor &
Francis, 2002. Note: This book illustrates many of the technical considerations involved in a lawsuit that may be present, in some form, in a diverse range of products, processes, systems, and industrial equipments. Includes accident reconstruction, human error control, and design safety.
3-16 Fundamentals and Assessment Tools for Occupational Ergonomics
Peters, George A. and Peters, Barbara J.,Warnings, Instructions, and Technical Communication, Tucson, AZ: Lawyers & Judges Publishing Co., 1999.Note: This book illustrates the factors to be considered whenwarningsand instructions become a part of a lawsuit.
Peters, George A. and Peters, Barbara J.,Handling Soft Tissue Injury Cases: Legal Aspects, 2nd ed., Vol. 1, Charlottesville, VA: Lexis Law Publishing, 1999. Note: This book illustrates many of the legal considerationsinvolved in lawsuits, from the viewpoint of the lawyers. Includes the general pro- cedures utilized by lawyers in the preparation of their cases.
Kazan, Steven and Moscowitz, Ellyn, The role of the plaintiff ’s attorney in asbestos litigation, in Peters, George A. and Peters, Barbara J., Eds., Sourcebook on Asbestos Diseases: Medical, Legal, and Engineering Aspects, Vol. 5, Asbestos Abatement. Salem, NH: Butterworth Legal Publishers, 1991, pp. 1 – 24.Note: This chapter and this book illustrate thelegal historyaspects of lawsuits or how the information accumulates on a particular problem area.
Watson, Donald, Ed.,Architectural Design Data, 7th ed., New York: McGraw-Hill, 1997.Note: This book contains a range of useful topics, such as lighting, stair design, elevators, door and windows, con- struction, fire safety, units of measurement, and human figure dimensions.Note: Illustrative of books that provide background information for human factors analysis.
Peters, George A., Product liability and safety, in Kreith, Frank, Ed.,The CRC Handbook of Mechanical Engineering, Boca Raton, FL and London: CRC Press, 1998, pp. 20.11 – 20.15.Note: This book provides valuable background and reference data with discussions of subjects ranging from engin- eering design and mathematics to project management and mechanical systems. It may be con- sidered a supplement to this chapter in this Handbook.
National Research Council and the Institute of Medicine,Musculoskeletal Dirsorders and the Workplace, Washington, D.C.: National Academy Press, 2001.Note: Illustrates the kind of peer group authored book given great weight in lawsuits. Deals with a common human factors problem.
Legal Issues in Occupational Ergonomics 3-17
4
Cost Justification for Implementing Ergonomics Intervention
Maurice Oxenburgh Pepe Marlow
Ergonomics Consultant