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Journal of Long-Term Effects of Medical Implants
SJR: 0.332 SNIP: 0.491 CiteScore™: 0.89

ISSN Print: 1050-6934
ISSN Online: 1940-4379

Journal of Long-Term Effects of Medical Implants

DOI: 10.1615/JLongTermEffMedImplants.v17.i4.80
pages 343-357

Case for the Establishment of a Code of Ethics to Govern the Frivolous Use of Forensic Biomechanical Testimony to Resolve Legal Issues Involving Alleged Work-Related Musculoskeletal Disorders

Daniel J. Schneck
Biomedical Engineering, Virginia Tech, Blacksburg, Virginia

ABSTRACT

If the legal system is to be an effective means for resolving issues of medical causation, then it is imperative that scientific evidence be presented ethically, fairly, and objectively. This is especially true for cases involving alleged occupational illness and injury. In particular, for a number of years, the railroad industry has been plagued by such allegations, being forced to defend numerous baseless lawsuits claiming work-related musculoskeletal disorders (WMSDs). These cases are litigated pursuant to the Federal Employers' Liability Act−a congressional act passed in 1908, long before today's workers' compensation statutes were enacted. Because the FELA has no compensatory damages cap, plaintiffs' lawyers, relying on the testimony of their “expert” witnesses, often “roll the dice” with poorly substantiated (or even unsubstantiated) “scientific” hypotheses, in hopes of convincing juries to award significant damages. Although good science does not support these causation hypotheses, all too often the science itself is not argued properly; or even worse, it is argued unethically (using “junk science”), such that juries are either deliberately misled or are certainly not provided with the information they need to make the right decisions. That is to say, expert witnesses are knowingly and unethically giving false (or at least naive) testimony on issues related to medical causation; and juries are being influenced by such testimony because of misleading presumptions of guilt unless innocence can be proven. In turn, these presumptions are derived from rather convincing “ default settings” that are not challenged effectively, either in depositions or at trial. Contributing to this dilemma is the conspicuous absence of an enforceable code of ethics to govern the frivolous use of forensic biomechanical testimony in resolving legal issues involving alleged WMSDs.