30-day set period before strength gain confirmation
Adversarial Context Non-Exemption from Professional Standards Applied to Engineer B
Municipality's adversarial dispute with Engineer A
Faithful Agent Obligation Within Ethical Limits
The case discussion explicitly finds that Engineer B's selective use of data to defend the client municipality constitutes an egregious denial of professional duties 'in any setting, legal, quasi-legal or non-legal' — establishing that the adversarial character of the proceeding created no exemption from professional engineering standards.
The adversarial nature of the municipality's dispute with Engineer A did not create any relaxation of Engineer B's professional obligations; the same standards of completeness and objectivity applied as in any non-adversarial engineering engagement.
Engineer B Adversarial Litigation Testing Supervisor
Adversarial Context Non-Exemption from Professional Standards
This is an egregious denial of the duties and responsibilities of a professional engineer in any setting, legal, quasi-legal or non-legal.
Professional standards were found to be context-invariant; the adversarial setting provided no mitigation for Engineer B's selective reporting.
Engineer B appears to have assumed a responsibility to defend the client municipality by the selective use of data.
It is not evident from the facts of the case that Engineer B's selective use of technical fact was inspired by the adversarial circumstance, nor does it matter.
Adversarial Engagement Objectivity Obligation Invoked Against Engineer B
Engineer B, retained by the municipality in an adversarial dispute with Engineer A, produced a report that selectively omitted material technical findings — specifically that dynamic test equipment failed and that all 19 reported failing piles were driven to refusal — in a manner that served the municipality's litigation interests while violating the objectivity and completeness obligations of professional engineering reporting.
Engineer B's adversarial engagement did not authorize selective omission of material technical findings; the same completeness standard applicable in non-adversarial contexts applied to his litigation testing report.
Adversarial Engagement Objectivity Obligation
Material facts, however, were not addressed in Engineer B's report. Among them, that dynamic test equipment failed during the test, and that all 19 test piles reported as failing the test were driven to refusal.
The objectivity obligation was found to override the client loyalty rationale; Engineer B's selective reporting was characterized as an egregious violation regardless of adversarial context.
Among them, that dynamic test equipment failed during the test, and that all 19 test piles reported as failing the test were driven to refusal.
Material facts, however, were not addressed in Engineer B's report.
the report appears to serve no purpose except to impugn Engineer A, or to support the original testimony of the municipality's expert witness.
the select language of the report precludes any interpretation that any or all 90 piles met the factor of safety requirement.
Adversarial Objectivity Violated By Engineer B Omitting Wave Equation Results
Engineer B's concluding report on test pile driving program
Engineer B, retained by the municipality in an adversarial litigation context, omitted from the concluding report the material finding that the 19 disputed piles had been driven to essential refusal and that accepted wave equation calculations would show their strength was several multiples over the calculated load requirements — a finding that would have favored Engineer A's position.
In adversarial litigation contexts, the obligation to produce complete and objective technical reports is not reduced by the retaining client's litigation interests; omitting material findings that favor the opposing party constitutes a violation of professional objectivity.
Engineer B did not state anywhere in the report that these 19 piles, according to the pile driving records, had been driven to essential refusal and that, applying accepted wave equation calculations, the piles would have indicated a strength several multiples over the calculated load requirements.
The adversarial engagement context does not override the engineer's obligation to include all material technical findings; the duty to the profession and to truthful reporting supersedes client litigation interests.
Additionally, Engineer B did not report that the dynamic test equipment had failed.
Available Evidence Consultation Obligation Violated by Engineer B
Adverse technical conclusions about pile safety factors
Scope-of-Work Limitation as Incomplete Ethical Defense
Engineer B failed to communicate with Engineer A's on-site representative, and failed to inquire from the contractor, workers, or others on the job — constituting a failure of fact-gathering diligence before rendering adverse technical conclusions about the pile driving program.
Engineer B's failure to consult available evidence sources — including the on-site representative, contractor, and workers — before rendering adverse conclusions about pile performance violated the diligent fact-gathering obligation that applies to engineers forming adverse technical opinions.
Available Evidence Consultation Obligation Before Adverse Technical Opinion
Engineer B's failure to inquire from the contractor, workers or others on the job is a failure of fact gathering diligence.
The fact-gathering diligence obligation was not satisfied by Engineer B's contractual scope; the obligation to consult available evidence sources extended to accessible on-site personnel.
It is clear that Engineer B may be criticized for his failure to communicate with Engineer A's on-site representative.
Available Evidence Consultation Violated By Engineer B Ignoring On-Site Representatives
Engineer B's investigation and report on pile adequacy
Engineer B formed and published adverse technical opinions about the adequacy of Engineer A's pile design without consulting Engineer A's on-site representatives who were available and could have testified about the accuracy of the pile driving records, and without inquiring from contractors or workers about why 19 piles met driving refusal prior to predicted depth.
Before rendering adverse technical opinions about another engineer's work, particularly in litigation contexts, the engineer must make reasonable efforts to consult available evidence sources; failure to do so when sources are accessible constitutes a breach of professional diligence.
At no time during the development of Engineer B's report did Engineer B talk to any representative of Engineer A, even though Engineer A's on-site representatives were available to testify as to the accuracy of the pile driving records.
The obligation to consult available evidence is not overridden by client litigation strategy; the engineer's duty to form opinions on adequate evidentiary bases is independent of client preferences.
No effort was made by Engineer B to inquire from contractors, workers, or others on the job to verify or refute his theories about why the 19 piles met driving refusal prior to predicted depth.
CausalLink_Contradictory Post-Report Expl
CausalLink_Decision to Exclude Stakeholde
CausalLink_Engineer A Retains Independent
CausalLink_Inconsistent Pile Depth Decisi
CausalLink_Mediation Settlement Agreement
CausalLink_Municipality Retains Engineer
CausalLink_Pre-Count Hammer Drop Decision
CausalLink_Vibratory Hammer Substitution
Client Disservice Through Incomplete Reporting Invoked Against Engineer B
Engineer B's omission of pile driving records from his report not only violated professional completeness obligations but also disserved the municipality by potentially misdirecting conclusions and depriving the municipality of the opportunity to present a rational basis for discounting unfavorable evidence.
In this context, the principle establishes that Engineer B's selective reporting, intended to serve the municipality's litigation interests, paradoxically disserved those interests by foreclosing the legitimate evidentiary strategy of presenting and then discounting the pile driving records.
Client Disservice Through Incomplete Reporting Prohibition
As an engineering document the report is incomplete and does a disservice to Engineer B's client municipality by potentially misdirecting a conclusion.
Genuine client service required completeness, not selective advocacy; the municipality's long-term interests were better served by a complete report that addressed and discounted unfavorable evidence than by a report that suppressed it.
by excluding the pile driving records, Engineer B has denied himself the opportunity to present a rational for discounting their value, and thereby to serve his client.
Completeness Violated By Engineer B Omitting Equipment Failure
Engineer B's concluding report on test pile driving validity
Engineer B's concluding report omitted the material fact that dynamic test equipment had failed during the test pile driving program, a fact directly bearing on the validity and reliability of the test results upon which the report's conclusions were based.
Completeness in professional reports requires disclosure of all material facts affecting the reliability of findings, including equipment failures that compromise test validity, regardless of whether their disclosure would undermine the report's conclusions.
Completeness and Non-Selectivity in Professional Advisory Opinions
The obligation to present complete and non-selective technical findings overrides the client's interest in a report that supports their litigation position.
The geotechnical consultant testified and showed that dynamic test equipment had failed during the test and that the test piles were not driven to the same depth of penetration that apparently was required for the plug to form in the original piles.
Completeness and Non-Selectivity Obligation Invoked via Code Requirement
The Code of Ethics provision requiring engineers to 'include all relevant and pertinent information in such report, statements or testimony' was directly invoked to establish that Engineer B's selective omission of material pile driving facts violated the completeness obligation applicable to professional engineering reports.
The completeness obligation required Engineer B to include all relevant and pertinent information — including equipment failure and pile refusal data — regardless of whether those facts supported or undermined the municipality's litigation position.
Neither interpretation is tolerated by the Code of Ethics which requires that engineers 'shall include all relevant and pertinent information in such report, statements or testimony.'
The completeness obligation was non-negotiable; no adversarial or client loyalty rationale could justify selective omission of material technical findings.
It was unethical for Engineer B to issue his report without mentioning the failed operation of the testing equipment.
Beyond the Board's finding that Engineer B's omission of the failed dynamic test equipment was unethical, the omission is compounded by the fact that the equipment failure was not merely a procedural footnote but a foundational validity question for the entire test program. A report that draws adverse conclusions about pile adequacy while suppressing the fact that the primary measurement instrument malfunctioned does not simply lack completeness — it affirmatively misrepresents the evidentiary basis of its conclusions. The reader of Engineer B's report would reasonably assume that the dynamic testing was successfully executed and that the results were technically reliable. That assumption, induced by silence, constitutes a material misrepresentation by omission under Code Section III.3.a, which prohibits statements containing omissions that would create a false impression. The ethical violation is therefore not only one of incompleteness but of constructive deception.
The Board's conclusion that Engineer B acted unethically by failing to communicate with Engineer A's representatives should be extended to recognize that this failure was not merely a procedural lapse but a violation of the due diligence standard that underlies any technically credible adverse opinion. Engineer B drew specific adverse conclusions about why 19 piles failed to reach predicted depth — including a theory about pile venting and closure plate air escape — without consulting the people who were physically present during the original pile driving and who could have confirmed or refuted that theory with firsthand observational knowledge. Under Code Section II.3.b, a publicly expressed technical opinion must be founded upon knowledge of the facts. An opinion about pile behavior that deliberately excludes available firsthand testimony about the conditions under which those piles were driven cannot satisfy that standard. The failure to consult is therefore not merely a communication lapse but an evidentiary deficiency that undermines the technical legitimacy of Engineer B's conclusions at their foundation.
The Board's finding that Engineer B failed to communicate with contractor supervisors and workers should be further analyzed in light of Engineer B's own post-report explanation. Engineer B stated that the pile driving records 'look suspicious' and raised a specific theory about pile venting through a closure plate. This means Engineer B had identified a concrete factual hypothesis — one that could have been tested by asking the workers and supervisors who installed those closure plates and drove those piles. The failure to consult available witnesses was therefore not a passive omission but an active choice to advance a theory while deliberately avoiding the most direct means of testing it. This pattern — forming an adverse conclusion, identifying a specific mechanism to explain it, and then declining to consult those who could verify or refute that mechanism — reflects a posture of advocacy rather than investigation, which is precisely the conduct Code Section II.3.c prohibits when it bars technical arguments inspired by self-interest or the interest of other parties rather than by objective analysis.
The Board's conclusion that Engineer B acted unethically by omitting the wave equation analysis and pile refusal data should be extended to address the structural severity of that omission. The omitted information was not merely supplementary context — it was directly exculpatory of Engineer A's design and directly contradicted Engineer B's adverse conclusions. Wave equation analysis applied to the pile driving records would have indicated load capacity several multiples above design requirements for the very 19 piles Engineer B declared inadequate. Omitting this from a report that purports to evaluate pile adequacy is not a matter of scope selection; it is the suppression of the primary counter-evidence to the report's central finding. Under Code Section III.3.a, an omission that would create a false impression of the facts is prohibited. A report concluding that 19 piles are inadequate, written with knowledge that accepted methodology applied to available records would show those same piles to be several times over-capacity, creates precisely such a false impression. The omission is not incidental but constitutive of the report's misleading character.
Across all four Board conclusions, a unifying analytical extension is that Engineer B's conduct represents a systematic pattern rather than a collection of isolated lapses. The omission of equipment failure, the refusal to consult available witnesses, the exclusion of wave equation results, and the post-report issuance of contradictory explanations are not independent errors — they form a coherent pattern of client-aligned selective reporting in which every available piece of evidence favorable to Engineer A was either ignored, excluded, or explained away after the fact. This pattern is analytically significant because it shifts the ethical characterization from negligence to something closer to deliberate advocacy dressed as objective engineering analysis. Code Section II.3.c explicitly prohibits technical statements inspired by the interest of other parties, and Code Section III.1.a prohibits distortion or alteration of facts. When the totality of Engineer B's choices is viewed together — the vibratory hammer substitution, the pre-count hammer drops, the non-consultation of witnesses, the wave equation omission, the equipment failure suppression, and the contradictory scope-versus-disbelief explanations — the cumulative picture is of a report engineered to serve the municipality's litigation position rather than to objectively evaluate the piles. This systemic dimension of the violation is more serious than any single omission and warrants recognition as an independent analytical conclusion beyond the Board's item-by-item findings.
The Board's conclusions collectively leave unaddressed the question of whether Engineer B's scope-of-work defense — the claim that pile driving records were outside the contractual scope — could ever constitute a legitimate ethical shield. The analytical answer is that it cannot, for a specific structural reason: the scope-of-work argument might excuse Engineer B from proactively seeking out records that were not provided, but it cannot excuse Engineer B from disclosing records that were available and that directly contradicted the report's adverse conclusions. The pile driving records existed, were accessible, and showed that the 19 questioned piles had been driven to essential refusal. Once Engineer B was aware of those records — as the post-report explanation about 'suspicious' records confirms — the scope-of-work limitation became irrelevant to the disclosure obligation. An engineer cannot contractually agree to ignore exculpatory evidence when drawing adverse professional conclusions, because the obligation of completeness and non-selectivity under Code Section II.3.a runs to the profession and the public, not merely to the client. The scope-of-work defense therefore fails not because scope limitations are never legitimate, but because they cannot override the engineer's independent professional obligation to disclose material facts that bear directly on the validity of adverse conclusions being issued under the engineer's professional seal.
It was unethical for Engineer B to not communicate with any representative of Engineer A about the project.
In response to Q101: Engineer B's two contradictory post-report explanations — first claiming the pile driving records were outside his scope of work, then claiming he simply did not believe them — constitute an independent ethical violation distinct from the substantive omissions in the report itself. The scope-of-work explanation, if true, would mean Engineer B never evaluated the records at all; the disbelief explanation, if true, would mean he evaluated them and consciously rejected them without disclosure. These two positions are mutually exclusive, and Engineer B offered both without reconciliation. Under Code Section III.1.a, engineers shall not distort or alter the facts, and the issuance of contradictory professional justifications for a consequential investigative choice — particularly one that affected adverse conclusions about another engineer's work — constitutes a distortion of the factual basis of the report's methodology. The honesty obligation is not limited to the report document itself; it extends to how an engineer accounts for his professional choices when queried. Engineer B's failure to provide a coherent, truthful account of why the pile driving records were excluded independently violates the honesty and non-distortion obligations of the Code, regardless of whether the underlying omissions in the report are separately found to be violations.
In response to Q102: Engineer B's use of a vibratory hammer in the test pile program — when the original piles were not driven with a vibratory hammer — and his failure to replicate original penetration depth conditions constitute an independent ethical violation that precedes and underlies the written report's omissions. An engineer drawing adverse technical conclusions about a pile design based on test results is ethically obligated to ensure that those tests replicate the conditions of the original work with sufficient fidelity to make the comparison valid. When Engineer B substituted a vibratory hammer, failed to achieve equivalent penetration depth, and allowed pre-count hammer drops that Engineer A's geotechnical consultant credibly testified would have broken the pile bond and undervalued skin friction, he produced test results that were structurally incomparable to the original pile driving program. Issuing adverse conclusions derived from such a compromised test program, without disclosing the methodological departures, violates Code Section II.3.a's requirement that professional reports be objective and truthful, and Code Section II.3.b's requirement that technical opinions be founded upon knowledge of the facts and competent engineering. The methodological inconsistency is not merely a technical imperfection; it is an ethical failure because Engineer B drew definitive adverse conclusions from data he knew or should have known was not a valid basis for comparison with the original work.
In response to Q103: It was unethical for Engineer B to issue adverse conclusions about Engineer A's pile design without first notifying Engineer A that such an evaluation was underway. Engineer A's on-site representatives possessed direct firsthand knowledge of the pile driving conditions, the accuracy of the pile driving records, and the circumstances surrounding the 19 piles that Engineer B concluded were inadequate. This knowledge was material to the very conclusions Engineer B was drawing. The ethical obligation here is not merely procedural courtesy; it is grounded in Code Section II.3.b's requirement that technical opinions be founded upon knowledge of the facts. An engineer who draws adverse conclusions about another engineer's design while deliberately bypassing available witnesses who could confirm or refute the factual premises of those conclusions has not founded his opinion on knowledge of the facts — he has founded it on a selectively assembled subset of facts. Furthermore, Code Section III.3.a prohibits statements containing material omissions that create false impressions. A report that omits the perspective of the engineer whose work is being adversely evaluated, when that engineer's representatives were available and willing to provide relevant testimony, creates a false impression of investigative completeness. The Board's conclusion that Engineer B's failure to communicate with Engineer A's representatives was unethical is correct, and this analysis extends that conclusion by identifying the specific mechanism: the failure to consult available witnesses directly undermined the factual foundation required to support the adverse technical opinion Engineer B issued.
In response to Q104: While the primary ethical burden falls on Engineer B as the licensed professional, the municipality's role in defining Engineer B's scope of work in a manner that may have structurally precluded complete and objective reporting raises a secondary ethical question about institutional responsibility in adversarial engineering engagements. However, under the NSPE Code, the licensed engineer bears non-delegable professional obligations that cannot be contracted away by a client's scope definition. Code Section II.3.c prohibits technical statements inspired by self-interest or the interest of other parties, and Code Section III.3.a prohibits material omissions that create false impressions — neither provision contains an exception for client-defined scope limitations. Engineer B's own post-report statement that the pile driving records were 'not in our scope of work' attempts to transfer ethical responsibility to the municipality's contractual framing, but this transfer is ethically impermissible. A licensed engineer who accepts an engagement to evaluate pile adequacy and issue a professional report cannot discharge his completeness and objectivity obligations by pointing to a scope-of-work document that did not require him to consult material evidence. The scope-of-work limitation is an incomplete ethical defense precisely because professional obligations are imposed by the Code on the engineer, not negotiated away by the client. If Engineer B believed the defined scope was too narrow to permit an objective and complete report, his ethical obligation was to expand the scope, disclose the limitation prominently in the report, or decline the engagement — not to issue adverse conclusions while silently omitting contradictory evidence.
In response to Q201: The tension between the Faithful Agent Obligation and the Completeness and Non-Selectivity Obligation is real but resolvable under the NSPE Code, and the Code resolves it unambiguously in favor of completeness. The Faithful Agent Obligation requires Engineer B to serve the municipality's legitimate interests, but it does not authorize selective reporting that omits material findings favorable to the opposing party. Code Section II.3.c explicitly prohibits technical statements inspired by the interest of other parties, which means the faithful agent obligation cannot be used to justify omitting wave equation results or equipment failure disclosures simply because those findings would weaken the municipality's litigation position. The resolution the Code demands is that a retained litigation expert serve the client's legitimate interest in obtaining an accurate, complete, and professionally defensible technical assessment — not the client's tactical interest in receiving a selectively favorable report. An engineer who produces a selectively favorable report ultimately disserves even the client, because the report's credibility is undermined when the omissions are exposed, as occurred here when Engineer A's geotechnical consultant testified about the equipment failure and wave equation results. The faithful agent obligation and the completeness obligation are therefore not genuinely in conflict when properly understood: a faithful agent in the professional engineering context is one who provides complete and objective analysis, not one who filters findings to serve litigation strategy.
In response to Q202: A contractually defined scope of work cannot legitimately excuse an engineer from consulting material evidence that is readily available and directly relevant to the adverse conclusions being drawn. The scope-of-work defense fails on both logical and ethical grounds. Logically, if Engineer B's scope did not include review of pile driving records, then Engineer B lacked the evidentiary foundation to draw adverse conclusions about the 19 piles — because the pile driving records were the primary available evidence about what actually happened during original pile installation. An engineer cannot simultaneously claim that reviewing the pile driving records was outside his scope and that he is competent to conclude that the 19 piles were inadequate, because the adequacy conclusion depends on understanding the original driving conditions that the records document. Ethically, Code Section II.3.b requires that technical opinions be founded upon knowledge of the facts. A scope-of-work limitation that excludes the primary factual record relevant to the opinion being issued does not satisfy this requirement; it defeats it. The Available Evidence Consultation Obligation is not waived by contractual scope definition. If the scope was genuinely too narrow to permit a fact-grounded opinion, Engineer B was obligated to either expand the scope, qualify the opinion prominently, or decline to issue the adverse conclusion. Issuing an unqualified adverse conclusion while hiding behind a scope limitation that excluded the most relevant contradictory evidence is precisely the kind of material omission that Code Section III.3.a prohibits.
In response to Q203: The tension between the Technical Facts Non-Adversarial Character principle and the Adversarial Engagement Objectivity Obligation reveals a genuine structural problem in how litigation engineering is practiced, but the NSPE Code resolves that tension clearly in favor of objective disclosure over client advocacy. The Technical Facts Non-Adversarial Character principle holds that factual findings — such as wave equation results showing piles driven to essential refusal at several multiples of design load, or the failure of dynamic test equipment — are not legitimately subject to adversarial framing. These are not matters of engineering judgment or interpretive discretion; they are documented facts. The Adversarial Engagement Objectivity Obligation recognizes that engineers retained in litigation contexts face structural pressure to produce client-favorable findings, but it does not relax the objectivity standard — it applies it with heightened vigilance precisely because the adversarial context creates the greatest temptation to depart from it. Code Section II.3.c's prohibition on statements inspired by the interest of other parties is most directly applicable in exactly this context. The internal tension in litigation engineering practice — where engineers are paid by one party to evaluate the work of another — is not resolved by the Code permitting selective reporting; it is resolved by the Code requiring that the engineer's professional obligations to objectivity and completeness override the client's tactical preferences. Engineer B's report illustrates what happens when this tension is resolved in the wrong direction: factual findings that contradict the client's litigation position are omitted, and the resulting report is neither professionally defensible nor ultimately useful to the client whose credibility depends on the report's integrity.
In response to Q204: The burden of determining materiality of an omission rests with the reporting engineer, not the client, and the professional standard — not the engineer's subjective judgment — defines the threshold. The Omission Materiality Threshold principle requires disclosure when an omission crosses a threshold of significance, but that threshold is not set by what the engineer finds convenient to report or what the client wishes to receive. In this case, the wave equation analysis showing that the 19 questioned piles had been driven to essential refusal at several multiples of design load capacity is unambiguously material: it is the single most important piece of evidence bearing on whether those piles were adequate, and it directly contradicts Engineer B's adverse conclusion. Similarly, the failure of dynamic test equipment is material because it undermines the reliability of the test results on which Engineer B's conclusions were based. No reasonable professional standard could classify either of these omissions as below the materiality threshold. The ethical burden falls on Engineer B as the licensed professional to identify and disclose material findings, including those that contradict his conclusions. Code Section III.3.a's prohibition on statements containing material omissions that create false impressions does not permit the engineer to delegate materiality determinations to the client or to define materiality by reference to what supports the client's position. The materiality standard is objective: would a competent reviewing engineer, or a party relying on the report, consider the omitted information significant to evaluating the report's conclusions? By that standard, both omissions in Engineer B's report were clearly material, and the failure to disclose them violated the Code.
In response to Q301: From a deontological perspective, Engineer B violated a categorical duty of completeness and non-selectivity by omitting the failed dynamic test equipment from his report, and this violation is independent of whether the omission ultimately affected the structural conclusions about the 19 piles. The deontological analysis is straightforward: the duty to report truthfully and completely is not a consequentialist obligation that is discharged if the omitted information would not have changed the outcome. Code Section II.3.a requires that professional reports be objective and truthful, and Code Section III.3.a prohibits material omissions that create false impressions. These are categorical obligations. A report that presents test results without disclosing that the test equipment failed during the test is not a truthful report, regardless of whether the engineer believes the equipment failure did not affect the results. The engineer's subjective belief about the impact of the equipment failure does not discharge the duty to disclose the failure; it is precisely the kind of judgment that the reader of the report — and the parties relying on it — are entitled to make for themselves. By omitting the equipment failure, Engineer B substituted his own undisclosed judgment for the informed evaluation of the report's audience, which is the paradigmatic form of the deontological violation the completeness obligation is designed to prevent.
In response to Q302: From a virtue ethics perspective, Engineer B failed to demonstrate the professional integrity expected of a competent and honest engineering expert. The virtue ethics analysis focuses not on whether specific rules were violated but on whether Engineer B exhibited the character traits — honesty, diligence, intellectual courage, and professional integrity — that define a trustworthy engineering expert. The contradictory post-report explanations are particularly revealing from this perspective: a virtuous engineer, when queried about investigative choices, would provide a transparent, coherent, and honest account of those choices, even if that account revealed limitations or errors. Instead, Engineer B offered two mutually exclusive explanations — scope exclusion and disbelief — without acknowledging the contradiction or explaining which was true. This pattern of explanation suggests not an engineer who made a difficult judgment call and can account for it, but an engineer who is constructing post-hoc justifications for choices made on other grounds. The virtue ethics framework also highlights Engineer B's failure of intellectual courage: a virtuous expert retained in an adversarial context would have the professional courage to report findings that contradict the client's position, understanding that his value as an expert depends on his credibility, and his credibility depends on his completeness. Engineer B's selective reporting reflects a failure of the character virtues that the engineering profession depends on its members to exhibit, particularly when retained in high-stakes adversarial proceedings where the temptation to accommodate client preferences is greatest.
In response to Q303: From a consequentialist perspective, Engineer B's selective omissions produced a net harm that substantially outweighed any benefit derived from the narrowly scoped report he delivered. The identifiable harms include: reputational injury to Engineer A, whose pile design was publicly characterized as inadequate based on a report that omitted the most significant evidence of adequacy; distortion of the mediation record, which was corrected only because Engineer A's independent geotechnical consultant testified about the equipment failure and wave equation results — testimony that should not have been necessary if Engineer B had reported completely; potential disservice to the municipality as client, whose litigation position was ultimately undermined by the exposure of the report's omissions and whose credibility as a party relying on expert testimony was damaged; and harm to the integrity of the engineering expert witness process more broadly, as selective reporting by retained experts erodes the reliability of technical testimony in dispute resolution proceedings. The only identifiable benefit of the selective report was a short-term tactical advantage for the municipality in the mediation — an advantage that was negated when the omissions were exposed. A consequentialist analysis therefore confirms what the deontological and virtue ethics analyses independently establish: Engineer B's selective reporting was ethically indefensible from every major normative framework, and the Board's conclusions finding multiple violations are well-supported across all three analytical traditions.
In response to Q304: From a deontological perspective, Engineer B breached a duty of due diligence by drawing adverse technical conclusions about Engineer A's pile design without first consulting available on-site representatives, contractor supervisors, and workers who possessed direct firsthand knowledge of the pile driving conditions. The deontological duty of due diligence in technical investigation is grounded in Code Section II.3.b's requirement that technical opinions be founded upon knowledge of the facts. This is not a consequentialist obligation that is satisfied if the engineer happens to reach the correct conclusion without consulting available witnesses; it is a procedural duty that requires the engineer to make reasonable efforts to obtain the relevant facts before issuing an opinion. Engineer B's failure to consult Engineer A's on-site representatives — who were available and willing to testify about the accuracy of the pile driving records — and his failure to inquire of contractors, workers, or others present during construction, meant that his adverse conclusions were issued without the factual foundation the Code requires. The deontological analysis is particularly sharp here because the witnesses Engineer B failed to consult were the primary available sources of firsthand knowledge about the very conditions his adverse conclusions addressed. A duty of due diligence that does not require consultation of available firsthand witnesses before issuing adverse professional conclusions would be a duty without meaningful content. Engineer B's failure to consult these witnesses was therefore not merely a procedural oversight; it was a substantive breach of the investigative diligence obligation that underlies the requirement that technical opinions be fact-grounded.
In response to Q401: If Engineer B had disclosed the dynamic test equipment failure in his report, the municipality, the mediating parties, and the reviewing technical community would have been in a position to properly weight the test pile results — and Engineer B's adverse conclusions about the 19 piles would almost certainly not have survived scrutiny under those conditions. The equipment failure is not a peripheral detail; it goes to the reliability of the test data on which Engineer B's conclusions were based. A disclosed equipment failure would have prompted the mediating parties and their technical advisors to ask whether the test results were valid, whether the failure affected the blow count records, and whether the test program should be repeated under controlled conditions. These are exactly the questions that Engineer A's geotechnical consultant raised in testimony — questions that were only necessary because Engineer B had not raised them himself. The counterfactual disclosure would also have interacted with the other methodological departures — the vibratory hammer substitution, the pre-count hammer drops, the failure to replicate penetration depth — to create a picture of a test program whose results were of limited comparability to the original pile driving. Under those conditions of full disclosure, the adverse conclusions about the 19 piles would have been recognized as resting on a compromised evidentiary foundation, and the mediation record would have reflected a more balanced and accurate technical picture.
In response to Q402: If Engineer B had consulted Engineer A's on-site representatives and the contractor's supervisors and workers before finalizing his report, it is highly probable that he would have obtained information sufficient to either substantiate or abandon his theory that the 19 piles were inadequate — and the report's conclusions would likely have materially differed. The on-site representatives were available to testify as to the accuracy of the pile driving records, which Engineer B's post-report statements reveal he found suspicious. A direct consultation would have allowed Engineer B to either confirm his suspicions with specific factual evidence or discover that the records were accurate and that the 19 piles had in fact been driven to essential refusal. The contractor's supervisors and workers could have provided firsthand accounts of the driving conditions, the behavior of the piles during installation, and any anomalies that might explain why the 19 piles reached refusal before predicted depth. This information was directly relevant to Engineer B's theory about why the piles met driving refusal prior to predicted depth — a theory he advanced in his report without having consulted the people most likely to know the answer. The counterfactual consultation would have either strengthened Engineer B's conclusions with factual support or revealed that his theory was unsupported, in either case producing a more professionally defensible and factually grounded report than the one he issued.
In response to Q403: If Engineer B had applied wave equation analysis to the pile driving records and disclosed that the 19 questioned piles had been driven to essential refusal — indicating load capacity several multiples above design requirements — the municipality's litigation position would have been materially weakened, and this potential outcome provides the most plausible explanation for Engineer B's selective reporting choices. The wave equation analysis was an accepted methodology directly applicable to the pile driving records, and its results would have shown that the 19 piles Engineer B characterized as inadequate were in fact among the strongest piles in the foundation, having been driven to refusal at capacities far exceeding design requirements. This finding would have directly contradicted Engineer B's depth-based adequacy analysis and would have required either a reconciliation of the two methodologies or an acknowledgment that the depth-based analysis was insufficient standing alone. The municipality's litigation position — that Engineer A's pile design was inadequate and that the settlement cost should be borne primarily by Engineer A — would have been substantially undermined by a report that acknowledged the 19 piles met refusal at several multiples of design load. The pattern of omissions in Engineer B's report — excluding wave equation results, excluding equipment failure disclosure, excluding consultation with Engineer A's representatives, excluding consultation with on-site witnesses — is consistent with a systematic effort to produce a report that supported the municipality's litigation position rather than a complete and objective technical assessment. Code Section II.3.c's prohibition on statements inspired by the interest of other parties is precisely targeted at this pattern of conduct.
It was unethical for Engineer B to not communicate with the contractor’s supervisor and workers who were on the job during construction.
The tension between the Faithful Agent Obligation — which required Engineer B to serve the municipality's litigation interests — and the Completeness and Non-Selectivity Obligation — which required Engineer B to report all material findings regardless of their effect on the client's position — was resolved by the Board unambiguously in favor of completeness. The case establishes that the Faithful Agent Obligation does not license selective reporting; it is bounded by the engineer's independent duty to be objective and truthful. Engineer B's role as a retained litigation expert did not transform him into an advocate whose report could be shaped by the client's adversarial interests. The NSPE Code provisions requiring objective and truthful professional reports, prohibiting material omissions, and forbidding statements inspired by self-interest or the interests of other parties operate as a ceiling on what client loyalty can demand. This case teaches that when the Faithful Agent Obligation and the Completeness Obligation appear to conflict, the conflict is resolved not by balancing but by subordination: client loyalty is legitimate only within the space defined by the engineer's independent professional obligations, and it cannot occupy that space by displacing them.
The Scope-of-Work Limitation as Incomplete Ethical Defense principle and the Available Evidence Consultation Obligation were placed in direct tension by Engineer B's first post-report explanation — that the pile driving records were outside his scope of work — and the Board's resolution of that tension carries significant doctrinal weight. The case establishes that a contractually defined scope of work cannot function as an ethical shield when the omitted evidence is (a) readily available, (b) directly material to the adverse conclusions being drawn, and (c) of a character that, if disclosed, would have permitted the reviewing community to properly evaluate those conclusions. The scope-of-work defense is legitimate when it defines the boundaries of an engineer's affirmative investigative duties; it is not legitimate when it is invoked to justify the omission of known, available, and dispositive evidence from a report whose conclusions depend on that evidence being absent. This distinction — between a scope limitation that defines what an engineer must do and a scope limitation invoked to conceal what an engineer already knows — is the critical line the Board implicitly drew. Engineer B's second explanation, that the records were simply not believed, inadvertently confirmed that the records were known and considered, which collapsed the scope-of-work defense entirely and revealed the omission as an intentional choice rather than a jurisdictional boundary.
The Technical Facts Non-Adversarial Character principle — which holds that objective technical findings such as wave equation results, pile driving refusal data, and equipment failure are not legitimately subject to adversarial framing — and the Adversarial Engagement Objectivity Obligation together reveal an internal tension in litigation engineering practice that this case resolves clearly in favor of objective disclosure. The case teaches that the adversarial character of the proceeding in which an engineer is retained does not alter the non-adversarial character of the technical facts the engineer uncovers. Engineer B's report treated factual findings — that the 19 questioned piles had been driven to essential refusal, that wave equation analysis indicated load capacity several multiples above design requirements, and that the dynamic test equipment had failed — as if they were adversarial positions subject to selective deployment. The Board's conclusions reject that framing entirely. Technical facts belong to the record, not to the retaining party, and an engineer who omits them to preserve a client-favorable narrative has not merely failed a completeness obligation but has misrepresented the technical reality of the situation. This principle prioritization — objective technical disclosure over adversarial client service — is the central ethical lesson of the case, and it applies with equal force whether the omitted facts are favorable to the opposing engineer, unfavorable to the client, or merely inconvenient to the theory the report advances.
It was unethical for Engineer B to issue his report without mentioning that the 19 piles questioned had, according to the driving records, met refusal.
Professional engineering ethics consensus
Professional norms governing ethical obligations when expert reports contradict prior engineering findings
Engineer B said: 'We just did not believe the driving records'
Previously, Engineer B had said, 'We didn't look at the pile driving records because it was not in our scope of work.'
Engineer B (as retained expert for municipality); Engineer A (as subject of the contradicting report)
Governs the ethical obligations of Engineer B as a subsequent expert whose report contradicted Engineer A's design and the pile driving records, including the obligation to engage with contrary evidence rather than dismissing it without investigation
Conflicting Expert Report Standard - Adversarial Pile Driving Dispute
Professional norms governing completeness and fairness obligations when an expert report contradicts prior engineering work in an adversarial context
In this case, an adversarial relationship is established between the municipality and Engineer A to resolve the sharing of a settlement cost between the two.
To test the criteria and professional judgment upon which Engineer A's conclusion, and recommendations were based, the municipality arranged for a test pile driving program and retained Engineer B to supervise the program.
Whatever rational Engineer B may employ to draw his conclusion, valid or not, the select language of the report precludes any interpretation that any or all 90 piles met the factor of safety requirement.
Board of Ethical Review in analyzing the adversarial relationship between municipality and Engineer A
Applied to the situation where Engineer B was retained by the municipality to test and effectively challenge Engineer A's prior conclusions about pile adequacy; the standard governs the completeness obligations of the subsequent expert report and the ethical implications of selective fact presentation in adversarial settings
Contractor Lawsuit Filed → Mediation Settlement Agreement
When dynamic test equipment fails during a comparative pile driving program that forms the evidentiary basis for adverse conclusions about another engineer's work, what disclosure obligation does the reporting engineer bear?
Engineer B omitted from his report the fact that dynamic test equipment failed during the test pile driving program, despite that failure directly bearing on the reliability of the test data underlying his adverse conclusions about the 19 piles.
Disclose the equipment failure prominently in the report, explain its potential effect on data reliability, and qualify the adverse conclusions accordingly so that readers can independently assess the weight of the test results
Note the equipment failure in the technical appendix as a procedural observation without elevating it to the conclusions section, on the basis that the engineer's professional judgment determined it did not affect the structural findings
Omit the equipment failure from the report on the grounds that the contractual scope of work defined deliverables as test pile results rather than test program conditions, and that the failure was a field contingency managed during execution
Engineer B Objective Complete Report Equipment Failure Omission
Before issuing adverse professional conclusions about another engineer's pile design in a litigation context, what fact-gathering obligations does the retained expert bear with respect to available on-site witnesses and primary records?
Engineer B issued adverse conclusions about the adequacy of 19 piles without consulting Engineer A's on-site representatives, the contractor's supervisors, or workers who were present during original pile installation and who possessed direct firsthand knowledge of the driving conditions Engineer B's theory addressed.
Contact Engineer A's on-site representatives and the contractor's supervisors and workers before finalizing the report, document their accounts of original pile driving conditions, and incorporate or address that testimony in the conclusions
Limit fact-gathering to the test pile program and the pile driving records provided by the municipality, on the basis that the adversarial litigation context makes direct contact with Engineer A's representatives legally and professionally inappropriate without coordinating through counsel
Disclose in the report that on-site representatives and construction workers were not consulted, identify the specific factual questions that consultation would have addressed, and qualify the adverse conclusions to reflect the evidentiary gap created by the absence of firsthand witness testimony
Engineer B Available Evidence Consultation On-Site Representatives
When pile driving records and accepted wave equation analysis directly contradict an adverse conclusion about pile adequacy, what obligation does the reporting engineer bear to disclose that contradictory evidence in the report?
Engineer B issued a report concluding that 19 piles were inadequate without disclosing that, according to the pile driving records, those piles had been driven to essential refusal, and that accepted wave equation calculations applied to those records would have indicated load capacity several multiples above design requirements — the single most significant piece of evidence bearing on pile adequacy.
Apply wave equation analysis to the available pile driving records, disclose that the 19 questioned piles were driven to essential refusal at capacities several multiples above design requirements, and reconcile that finding with the depth-based test program results in the report's conclusions
Disclose the existence of the pile driving records and the refusal data in the report, note that wave equation analysis was outside the contracted scope, and recommend that the municipality commission a supplemental analysis before relying on the test program conclusions for litigation purposes
Exclude the pile driving records from the report on the basis that their reliability is professionally questionable, but disclose in the report that the records exist, that they were considered and found suspect, and that the specific basis for that professional judgment is the engineer's assessment of their internal consistency
Engineer B Objective Complete Report Wave Equation Omission
When a comparative test pile driving program uses materially different equipment and procedures than the original installation, what obligation does the supervising engineer bear to ensure methodological fidelity or disclose departures that affect the validity of the comparison?
Engineer B designed and supervised a comparative test pile driving program using a vibratory hammer and non-replicated penetration depth conditions, when the original piles were driven under different conditions, and then drew adverse conclusions from the test results without disclosing the methodological departures that made the comparison structurally invalid.
Replicate the original pile driving conditions — including hammer type, penetration depth requirements, and blow-count recording protocols — in the test program, or disclose all material departures in the report and qualify the adverse conclusions to reflect the limits of comparability
Proceed with the available equipment and field conditions, disclose the vibratory hammer substitution and depth variations in the report's methodology section, and present the test results as indicative rather than definitive comparators pending a fully replicated test program
Apply professional judgment that the vibratory hammer and modified depth protocol are sufficiently equivalent for the purposes of the evaluation, proceed without disclosure of the departures, and issue conclusions based on the test results as if they were directly comparable to the original installation
Engineer B Comparative Testing Methodological Fidelity Vibratory Hammer
When an engineer is queried about the basis for excluding material evidence from an adverse professional report, what honesty and non-distortion obligations govern the engineer's account of those investigative choices?
Engineer B offered two mutually exclusive post-report explanations for why the pile driving records were excluded from his report — first claiming they were outside his contractual scope of work, then claiming he simply did not believe them — without acknowledging or reconciling the contradiction, raising an independent honesty and non-distortion violation distinct from the substantive omissions in the report itself.
Provide a single, coherent, and transparent account of why the pile driving records were excluded — either acknowledging they were outside the contracted scope and that this limitation should have been disclosed in the report, or acknowledging they were reviewed and found unreliable and explaining the specific professional basis for that judgment
Maintain the scope-of-work explanation as the primary justification, acknowledge that the records were brought to the engineer's attention during the engagement, and clarify that the scope limitation was a contractual boundary that the municipality and engineer agreed upon before the work commenced
Maintain the disbelief explanation as the primary justification, provide the specific technical or documentary basis for finding the records unreliable, and acknowledge that this professional judgment should have been disclosed in the report rather than left unstated
Engineer B Adversarial Circumstance Non-Justification Selective Data Use
When a retained litigation expert's obligation to serve the client's interests appears to conflict with the professional obligation to produce a complete and non-selective report, how should the engineer resolve that tension — and does the adversarial context of the engagement alter the applicable standard?
Engineer B was retained by the municipality in an adversarial litigation context and produced a report that systematically excluded every available piece of evidence favorable to Engineer A — wave equation results, equipment failure, pile driving refusal data, and on-site witness testimony — raising the question of whether the Faithful Agent Obligation to the municipality and the Completeness and Non-Selectivity Obligation can be reconciled, and how a retained litigation expert should resolve that tension.
Produce a complete and non-selective report that includes all material findings — wave equation results, equipment failure, pile driving refusal data — regardless of whether those findings are adverse to the municipality's litigation position, serving the municipality's legitimate interest in a professionally defensible and credible technical assessment
Produce a report focused on the test pile program results within the contracted scope, disclose the scope limitation prominently, and recommend that the municipality commission a supplemental analysis addressing the pile driving records and wave equation methodology before relying on the report for litigation purposes
Decline the engagement on the grounds that the adversarial litigation context and the municipality's defined scope create irreconcilable pressure to produce a client-favorable rather than objectively complete report, and advise the municipality to retain an expert whose scope of work is defined broadly enough to permit complete and objective reporting
Engineer B Faithful Agent Municipality Report Completeness
Decision to Exclude Stakeholder Consultation
Decision to Exclude Stakeholder Consultation → Contradictory Post-Report Explanations
Engineer B's concluding report on test pile program
Engineer B's concluding report stated that approximately 19 of the 90 piles did not meet the safety factor required by the design calculations
Engineer B did not report that the dynamic test equipment had failed
Engineer B did not state anywhere in the report that these 19 piles...had been driven to essential refusal
Municipality (submitted in mediation); Engineer A (challenged after issuance)
The specific expert report at the center of the ethical dispute — found to be materially incomplete by omitting wave equation results, equipment failure, and pile driving records showing essential refusal, raising questions about Engineer B's professional obligations
Professional norms establishing the right of a reviewed engineer to be consulted during independent assessment
Engineer Notification Right in Review Contexts
At no time during the development of Engineer B's report did Engineer B talk to any representative of Engineer A, even though Engineer A's on-site representatives were available to testify as to the accuracy of the pile driving records
No effort was made by Engineer B to inquire from contractors, workers, or others on the job to verify or refute his theories
Engineer B (violated); Engineer A (right-holder)
Governs Engineer B's failure to contact Engineer A or Engineer A's on-site representatives at any point during the development of the expert report, despite their availability to clarify pile driving records
Engineer A Deposition Factual Completeness
Deposition Factual Completeness Capability
Engineer A exercised the capability to testify completely and accurately about the geotechnical firm's report and the basis for the pile design, including the material fact that piles were expected to gain sufficient strength within 30 days.
Engineer A testified during mediation proceedings about the basis for the pile design and the geotechnical firm's strength gain predictions
Testimony that the geotechnical firm's report expected piles to gain sufficient additional strength within 30 days to meet driving resistance requirements
Engineer A testified that the geotechnical firm's report expected that the piles would gain sufficient additional strength within 30 days to meet driving resistance requirements.
Engineer A Deposition Factual Completeness Constraint — Geotechnical Report Pile Setup Testimony
Engineer A testified that the geotechnical firm's report expected piles would gain sufficient additional strength within 30 days to meet driving resistance requirements, providing the factual basis for the pile design without characterizing the initial driving resistance shortfall as a design error.
Deposition Factual Completeness Without Voluntary Self-Characterization Constraint
Engineer A was required to testify completely and accurately about the geotechnical firm's report and the basis for the pile design — including the 30-day pile setup expectation — without volunteering characterizations of the design as an error when no professional determination of error had been made.
NSPE Code of Ethics — truthfulness and completeness provisions; legal deposition conduct standards
Engineer A Deposition Factual Completeness Geotechnical Report Testimony
Engineer A testified during mediation that the geotechnical firm's report expected piles would gain sufficient additional strength within 30 days to meet driving resistance requirements, providing factual testimony about the design basis.
Deposition Factual Completeness Without Voluntary Self-Characterization Obligation
Engineer A was obligated to testify completely and accurately about the geotechnical firm's report and the basis for the pile design — including the expectation that piles would gain sufficient strength within 30 days — without voluntarily characterizing the design as an error or assuming fault determinations properly reserved for the legal process.
During testimony in the mediation proceedings
Engineer A Dock Foundation Design Engineer
{'license': 'Professional Engineer', 'specialty': 'Marine/dock infrastructure and pile foundation design', 'litigation_status': 'Defendant/respondent in contractor lawsuit; co-settled for $300,000'}
Retained by the municipality to design a dock on a 90-pile foundation; party to litigation arising from contractor's extra claim; testified during mediation regarding geotechnical design assumptions; retained independent geotechnical consultant to observe test pile driving.
{'type': 'client', 'target': 'Municipality'}
{'type': 'peer_adversarial', 'target': 'Engineer B'}
{'type': 'retains', 'target': 'Engineer A Geotechnical Consultant'}
Engineer A was retained by a municipality to design a dock on a supporting foundation of 90 piles
An independent geotechnical consultant was retained by Engineer A to observe the test
Engineer A and the municipality shared the cost of the settlement with the contractor for $300,000
Engineer A testified that the geotechnical firm's report expected that the piles would gain sufficient additional strength within 30 days
Engineer A Geotechnical Consultant Contradicting Engineer B's Test Findings
From geotechnical consultant's observation of test pile program through mediation testimony
The geotechnical consultant testified and showed that dynamic test equipment had failed during the test.
Engineer A's independent geotechnical consultant's testimony versus Engineer B's report conclusions
Engineer B's concluding report stated that approximately 19 of the 90 piles did not meet the safety factor required by the design calculations.
In the opinion of Engineer A's geotechnical consultant, this would have broken the pile bond and undervalued the skin friction value reported by Engineer B's tests.
Independent geotechnical consultant observing test pile program and identifying equipment failure, non-equivalent conditions, and methodological flaws that undermine Engineer B's conclusions
Engineer A Geotechnical Consultant Independent Observation Completeness
Independent Geotechnical Observation Completeness Capability
Engineer A's independent geotechnical consultant demonstrated the capability to provide complete and objective testimony about all material observations during the test pile driving program, including equipment failures and methodological deviations
Engineer A's geotechnical consultant retained as independent observer of test pile driving program supervised by Engineer B; provided complete testimony about material observations
Demonstrated: The independent geotechnical consultant testified that dynamic test equipment failed, that a vibratory hammer was substituted for the original hammer type, and that pile bond was broken before recording blow counts
Engineer A's independent geotechnical consultant
Engineer A's independent geotechnical consultant was obligated to provide complete and objective testimony about all material observations during the test pile driving program
Engineer A Geotechnical Consultant Independent Observer
{'license': 'Professional Engineer / Geotechnical Specialist', 'specialty': 'Geotechnical engineering, pile dynamics, skin friction analysis', 'retained_by': 'Engineer A'}
Retained by Engineer A to independently observe the test pile driving supervised by Engineer B. Testified that dynamic test equipment failed, that test piles were not driven to required penetration depth, that a vibratory hammer was used (not used in original driving), and that pre-test hammer drops would have broken pile bond and undervalued skin friction — thereby challenging the validity of Engineer B's test results.
{'type': 'observes_testing_of', 'target': 'Engineer B Municipality-Retained Litigation Testing Engineer'}
{'type': 'retained_by', 'target': 'Engineer A Dock Foundation Design Engineer'}
Independent Geotechnical Litigation Observer
In the opinion of Engineer A's geotechnical consultant, this would have broken the pile bond and undervalued the skin friction value reported by Engineer B's tests
The geotechnical consultant testified and showed that dynamic test equipment had failed during the test
the test piles were not driven to the same depth of penetration that apparently was required for the plug to form in the original piles
Engineer A Geotechnical Consultant Independent Observer Completeness
Engineer A's independent geotechnical consultant demonstrated the capability to provide complete and objective testimony about all material observations during the test pile driving program, including equipment failures, methodological deviations, and their effect on test validity.
Retained by Engineer A to independently observe the test pile driving program supervised by Engineer B; provided comprehensive testimony about all material observations including those adverse to the test program's validity
Testimony disclosing: (1) dynamic test equipment failure, (2) insufficient penetration depth for plug formation, (3) vibratory hammer substitution, (4) pre-record hammer drops breaking pile bond, (5) resulting undervaluation of skin friction
Driving conditions were not duplicated in driving the test piles in that a vibratory hammer was used for the test piles and not used in the original driving.
Engineer A Geotechnical Consultant Independent Observer Testimony Completeness
Engineer A's geotechnical consultant testified completely about dynamic test equipment failure, depth of penetration discrepancies, vibratory hammer use, and the technical implications for skin friction values — fulfilling the obligation.
Objective and Complete Reporting Obligation
Engineer A's independent geotechnical consultant was obligated to provide complete and objective testimony about all material observations during the test pile driving program, including equipment failures, methodological deviations, and their technical implications.
{'affiliation': "Engineer A's firm", 'presence': 'On-site during test pile driving'}
Engineer A's representative present on-site during the test pile driving program; Engineer B failed to communicate with this individual, constituting a diligence failure in fact-gathering.
{'type': 'not_consulted_by', 'target': 'Engineer B Adversarial Litigation Testing Supervisor'}
{'type': 'represents', 'target': 'Engineer A Dock Foundation Design Engineer'}
Engineer B may be criticized for his failure to communicate with Engineer A's on-site representative
Engineer A testimony (30-day strength gain) during mediation
Engineer B's selective use of data in the concluding report occurred in an adversarial litigation context; the case discussion explicitly states that whether or not the adversarial circumstance inspired the selective reporting is irrelevant to the ethical violation.
Adversarial Circumstance Non-Justification for Selective Reporting Obligation
Engineer B was obligated to apply the same completeness and objectivity standards to the test pile driving report regardless of the adversarial context, recognizing that the adversarial circumstance — whether or not it motivated the selective reporting — does not justify selective use of technical data.
Throughout the engagement and report preparation
Engineer B Adversarial Circumstance Non-Justification Selective Data Use Instance
The municipality retained Engineer B in an adversarial context to evaluate Engineer A's pile design; Engineer B's selective reporting violated the principle that adversarial context does not modify engineering objectivity obligations.
Adversarial Circumstance Non-Justification for Selective Data Use Constraint
Engineer B was constrained to apply the same completeness and objectivity standards to the pile driving test report regardless of the adversarial legal/quasi-legal context between the municipality and Engineer A — the adversarial setting provided no justification for selective use of technical data.
NSPE Code of Ethics — universal applicability of objectivity and completeness obligations across legal, quasi-legal, and non-legal settings
Throughout the adversarial proceeding and report preparation
Engineer B Adversarial Client Disservice Through Selective Reporting Municipality
Engineer B's selective report omitted material facts (wave equation results, equipment failure, piles driven to refusal) that could have redirected the municipality's legal strategy, thereby disserving the client by potentially misdirecting a conclusion.
Adversarial Context Client Disservice Through Selective Reporting Constraint
Engineer B was constrained to produce a complete and accurate technical report that genuinely served the municipality's interests, and was prohibited from producing a selectively incomplete report that potentially misdirected the municipality's legal conclusions by omitting material technical findings.
NSPE Code of Ethics — faithful agent obligation; objectivity and completeness provisions
At time of drafting and submitting the concluding report to the municipality
Engineer B Adversarial Context Non-Justification Recognition Failure
Adversarial Context Non-Justification Recognition Capability
Engineer B lacked or failed to exercise the capability to recognize that the adversarial litigation context did not justify selective use of technical facts in the test pile driving report
Engineer B retained by municipality to supervise test pile driving in adversarial dispute with Engineer A; produced incomplete report omitting material findings
Failure: Engineer B produced a selective report omitting material facts (piles driven to refusal, equipment failure) in a litigation context, with the BER noting it does not matter whether adversarial circumstance inspired the selectivity
Engineer B Adversarial Context Report Completeness Litigation
Engineer B was retained by the municipality during litigation with Engineer A and produced a report that selectively omitted findings favorable to Engineer A's position, including wave equation results showing piles met strength requirements and the failure of dynamic test equipment.
Adversarial Context Report Completeness and Non-Selectivity Obligation
Engineer B was obligated, as an engineer retained by the municipality in an adversarial litigation context, to produce a complete and non-selective report that included all material findings — including the wave equation results and equipment failure — regardless of whether those findings were adverse to the municipality's litigation position.
At the time of preparing and issuing the concluding report on the test pile driving program
Engineer B Adversarial Context Report Completeness Non-Selectivity Violation
Engineer B was retained by the municipality in an adversarial dispute with Engineer A; Engineer B's report selectively omitted material findings (equipment failure, piles driven to refusal, wave equation results) that would have been favorable to Engineer A's position.
Engineer B was obligated to produce a complete, non-selective report including all material technical findings — including findings favorable to Engineer A — notwithstanding the adversarial litigation context of the engagement.
Engineer B appears to have assumed a responsibility to defend the client municipality by the selective use of data. This is an egregious denial of the duties and responsibilities of a professional engineer in any setting, legal, quasi-legal or non-legal.
Throughout the preparation and issuance of the concluding report
Engineer B Adversarial Engagement Without Coordination with Engineer A
From Engineer B's retention by municipality through issuance of the report
The municipality retained Engineer B to supervise the driving of several test piles to see whether the piles would gain sufficient strength to meet the design calculation requirements.
Adversarial Expert Engagement Without Peer Coordination State
Engineer B's role as municipality-retained expert evaluating Engineer A's pile design
Post-report query initiated by Engineer A (not by Engineer B)
Municipality retaining Engineer B to evaluate Engineer A's pile design in the context of litigation/mediation, with Engineer B proceeding without any contact with Engineer A's team
Engineer B Adversarial Expert Engagement Without Peer Coordination
From Engineer B's retention by municipality through submission of the report
It is clear that Engineer B may be criticized for his failure to communicate with Engineer A's on-site representative
Engineer B's evaluation of Engineer A's pile work conducted without coordination with Engineer A or Engineer A's representatives
The opportunity for expert engineering review and interpretation of the pile driving test was effectively denied by Engineer B's report
Municipality retaining Engineer B to contest Engineer A's conclusions in an adversarial proceeding without Engineer B coordinating with Engineer A
Engineer B Adversarial Expert Report Material Finding Disclosure Constraint — Litigation Context
Engineer B was retained by the municipality to evaluate Engineer A's pile design in the context of an adversarial mediation proceeding over $300,000 in settlement costs, and produced a report that omitted material findings favorable to Engineer A.
Adversarial Expert Report Material Finding Disclosure Constraint
Engineer B, as an expert retained by the municipality in an adversarial mediation proceeding against Engineer A, was required to include all material findings in the expert report — including those that would favor Engineer A — and was prohibited from producing a selectively incomplete report that served the municipality's adversarial interest at the expense of professional objectivity.
NSPE Code of Ethics — objectivity, completeness, and faithful agent provisions; Conflicting Expert Report Standard
During the mediation, the municipality brought in expert witnesses to support their case.
Throughout the preparation and submission of the expert report in the mediation proceeding
Engineer B did not state anywhere in the report that these 19 piles, according to the pile driving records, had been driven to essential refusal
Engineer B Adversarial Expert Report Material Finding Disclosure Wave Equation Equipment Failure
Engineer B's report omitted wave equation results, equipment failure, and the fact that piles were driven to refusal — all material findings that would have qualified or contradicted the adverse conclusions about the 19 piles.
Engineer B, as an expert retained by the municipality in an adversarial proceeding, was required to include all material findings in the expert report — including the wave equation analysis results, the fact that all 19 piles were driven to refusal, and the failure of dynamic test equipment — and was prohibited from selectively omitting findings that would qualify or contradict the adverse conclusions.
NSPE Code of Ethics — complete reporting obligation; adversarial context does not modify objectivity requirements
At time of drafting and submitting the concluding pile driving test report
the Code of Ethics which requires that engineers 'shall include all relevant and pertinent information in such report, statements or testimony.'
{'license': 'Professional Engineer', 'specialty': 'Geotechnical/foundation testing', 'ethical_failure': "Selective use of technical facts; omission of material findings; failure to communicate with opposing party's representative; failure to gather facts from on-site parties"}
Retained by the municipality to supervise the test pile driving program; produced a report omitting material facts (equipment failure, piles driven to refusal) that selectively supported the municipality's adversarial position, failed to communicate with Engineer A's on-site representative, and failed to inquire from contractors and workers — constituting a failure of fact-gathering diligence and an egregious denial of professional duties.
{'type': 'adversarial_context_peer', 'target': 'Engineer A Dock Foundation Design Engineer'}
{'type': 'failed_to_communicate_with', 'target': 'Engineer A On-Site Representative'}
{'type': 'retained_by', 'target': 'Municipality Litigation Dispute Client'}
Adversarial Litigation Testing Supervisor Engineer
the municipality arranged for a test pile driving program and retained Engineer B to supervise the program
Engineer B appears to have assumed a responsibility to defend the client municipality by the selective use of data
Engineer B reports that 19 piles do not meet the required factor of safety
Engineer B's failure to inquire from the contractor, workers or others on the job is a failure of fact gathering diligence
Engineer B's selective use of technical fact
Material facts, however, were not addressed in Engineer B's report
Engineer B Adversarial Report Completeness and Non-Selectivity
Selective Information Omission Recognition Capability
Engineer B failed to exercise the capability to recognize that selective omission of material findings — including essential refusal data and equipment failure — from a litigation report constituted an ethical violation of the obligation to produce complete and non-selective professional reports.
Engineer B produced a concluding report in an adversarial litigation context that selectively omitted multiple material findings favorable to Engineer A while reporting only findings adverse to Engineer A's pile design
Report omitted: (1) pile driving records showing essential refusal, (2) wave equation analysis results, (3) dynamic equipment failure — while including only findings adverse to Engineer A
Engineer B did not report that the dynamic test equipment had failed.
Engineer B Adverse Evidence Consultation Failure
Adverse Technical Opinion Evidence Consultation Capability
Engineer B lacked or failed to exercise the capability to consult available evidence sources — including Engineer A's on-site representatives, contractors, and workers — before issuing adverse conclusions about the 19 piles, constituting a violation of the obligation to base adverse technical opinions on all available evidence.
Engineer B was retained by the municipality to supervise test pile driving and evaluate whether original piles met design safety factors; issued adverse conclusions without consulting available witnesses
Failure to speak with any representative of Engineer A, contractors, or workers despite their availability; failure to verify or refute theories about why piles met driving refusal prior to predicted depth
Engineer B Adverse Technical Opinion Evidence Consultation Failure
Engineer B failed to consult all reasonably available sources of evidence — including Engineer A's on-site representatives, contractors, and workers — before issuing adverse conclusions about the adequacy of the 19 piles
Engineer B retained to supervise test pile driving and evaluate pile adequacy; failed to consult available witnesses and records before forming adverse opinions
Failure: Engineer B did not communicate with Engineer A's on-site representative and failed to inquire from the contractor, workers, or others on the job before issuing adverse technical conclusions
Engineer B Artfully Misleading Scope-of-Work Explanation
Engineer B provided two contradictory explanations for not reviewing pile driving records: first citing scope-of-work limitations, then claiming the records were not believed. The scope-of-work explanation was technically framed but obscured the actual reason.
Artfully Misleading Statement Prohibition Obligation
Engineer B was obligated to refrain from making artfully misleading statements about the basis for omitting pile driving records — first claiming it was outside the scope of work (technically defensible but obscuring the real reason), then substituting a different explanation (disbelief of records) when queried — as these sequential contradictory explanations created false impressions about the professional basis for the omission.
When queried by Engineer A after the report was issued
When queried by Engineer A after the report was issued by Engineer B, Engineer B said: 'We just did not believe the driving records and there was also the issue of whether the pile was vented to allow air to escape from below a closure plate that was included in the pile to separate the concrete fill in the pile from the clay. The driving records look suspicious.'
Engineer B Artfully Misleading Scope Explanation Recognition
Artful Misrepresentation in Negotiation Recognition Capability
Engineer B failed to recognize that the sequential use of contradictory explanations — first scope limitation, then disbelief — constituted an artfully misleading pattern of statements that created a false impression about the basis for omitting pile driving records from the report.
Engineer B's initial explanation that records were outside scope of work was later contradicted by the admission that records were actually disbelieved as suspicious, revealing the scope explanation as artfully misleading
Use of scope-of-work explanation that was technically plausible but misleading given the actual reason (disbelief of records); subsequent disclosure of disbelief revealed the scope explanation as artfully misleading
Engineer B said: 'We just did not believe the driving records...'
Engineer B was obligated to refrain from making artfully misleading statements about the basis for omitting pile driving records
Engineer B Available Evidence Consultation Constraint — On-Site Representatives and Contractors
Engineer B issued adverse conclusions about 19 piles without consulting any representative of Engineer A, contractors, or workers, despite their availability, and without reviewing the pile driving records that would have shown the piles were driven to essential refusal.
Adverse Opinion Available Evidence Consultation Constraint
Engineer B was prohibited from issuing adverse conclusions about the adequacy of the 19 piles without first consulting Engineer A's on-site representatives, contractors, and workers who were available and could testify to the accuracy of the pile driving records.
NSPE Code of Ethics — objectivity, completeness, and truthfulness provisions
Throughout the development of Engineer B's expert report and test pile program
Engineer B issued adverse conclusions about 19 piles without consulting Engineer A's on-site representatives who were available and could have testified about the accuracy of the pile driving records.
Available Evidence Consultation Before Adverse Technical Opinion Obligation
Engineer B was obligated to consult Engineer A's on-site representatives, contractors, and workers before issuing adverse conclusions about the adequacy of the 19 piles, as these individuals were available and possessed material knowledge about the pile driving records and conditions.
During the development of the concluding report, prior to issuing adverse conclusions
Engineer B Available Evidence Consultation Pile Driving Records Failure
Engineer B formed and published adverse technical opinions that 19 piles did not meet safety factor requirements without consulting pile driving records that would have shown the piles were driven to refusal, and without consulting Engineer A's on-site representative or other available witnesses.
Engineer B was obligated to consult all reasonably available evidence — including pile driving records, on-site representatives, contractors, and workers — before publishing adverse technical conclusions about Engineer A's pile design.
Before finalizing and publishing the concluding report on the test pile driving program
Engineer B Available Witness Non-Consultation — Contractor and Workers
During and after the pile driving test program, prior to submission of Engineer B's report
Available Witness Non-Consultation State
Engineer B's failure to consult contractor, workers, or others present at the pile driving test site
Engineer B conducting the test program and preparing the report without consulting available on-site personnel who could have provided material context
Engineer B Client-Aligned Advocacy Displacing Objective Reporting
From Engineer B's retention by municipality through submission of the incomplete report
Client-Aligned Advocacy Displacing Objective Reporting State
Engineer B's professional posture in preparing and submitting the pile driving test report
As an engineering document the report is incomplete and does a disservice to Engineer B's client municipality by potentially misdirecting a conclusion
As evidence, the report appears to serve no purpose except to impugn Engineer A, or to support the original testimony of the municipality's expert witness
This is an egregious denial of the duties and responsibilities of a professional engineer in any setting, legal, quasi-legal or non-legal
Engineer B's adoption of a client-defense posture resulting in selective use of data to impugn Engineer A rather than provide objective technical assessment
Engineer B Client Disservice Through Selective Reporting Failure
Client Disservice Through Selective Technical Reporting Recognition Capability
Engineer B failed to recognize that producing a selective report omitting pile driving records and equipment failure information actually disserved the municipality by potentially misdirecting conclusions and denying the opportunity to discount contrary evidence
Engineer B retained by municipality in adversarial dispute; produced report omitting material facts that could have been addressed and discounted, thereby better serving the client
Failure: Engineer B's selective report did a disservice to the municipality by potentially misdirecting conclusions and denying Engineer B the opportunity to present a rationale for discounting pile driving records
Engineer B Client Disservice Through Selective Reporting Municipality
Engineer B's selective omission of pile driving records from the concluding report not only violated professional completeness obligations but also disserved the municipality by potentially misdirecting its legal conclusions and depriving it of a rational basis for evaluating the pile adequacy question.
Client Disservice Through Selective Reporting Non-Commission Obligation
Engineer B was obligated to refrain from producing a report that selectively omitted material technical findings in a manner that disserved the municipality's actual interests — specifically by excluding pile driving records that would have enabled a rational basis for evaluating pile adequacy and potentially misdirecting the municipality's legal conclusions.
At the time of preparing and issuing the concluding report
Engineer B Comparative Test Condition Replication Constraint — Vibratory Hammer and Penetration Depth
Engineer B used a vibratory hammer instead of the original impact hammer, did not drive test piles to the same penetration depth, and dropped the hammer several times before commencing blow count records — conditions that Engineer A's geotechnical consultant testified would have broken the pile bond and undervalued skin friction values.
Comparative Test Condition Replication Constraint
Engineer B was required to replicate the material driving conditions of the original pile installation — including use of the same type of hammer, equivalent penetration depth requirements, and avoidance of pre-record hammer drops — when supervising the test pile program intended to evaluate whether the original piles met design requirements.
NSPE Code of Ethics — objectivity and completeness provisions; professional standard of care for comparative testing
During the design and execution of the test pile driving program
after the 30 day set up, the driving hammer was dropped several times to start the hammer before the record of blow counts commenced.
the test piles were not driven to the same depth of penetration that apparently was required for the plug to form in the original piles.
Engineer B Comparative Testing Methodological Fidelity Failure
Comparative Testing Methodological Fidelity Capability
Engineer B failed to exercise the capability to replicate original pile driving conditions in the test program, using a vibratory hammer instead of the original hammer type, failing to achieve the same penetration depth, and allowing pre-record hammer drops that broke pile bond and undervalued skin friction.
Engineer B supervised the test pile driving program intended to evaluate whether original piles would gain sufficient strength after 30-day set-up; methodological deviations invalidated comparative validity
Use of vibratory hammer instead of original hammer type; failure to achieve required penetration depth for plug formation; dropping hammer several times before commencing blow count record
this would have broken the pile bond and undervalued the skin friction value reported by Engineer B's tests
Engineer B supervised test pile driving using a vibratory hammer not used in the original driving, drove piles to different depths than required for plug formation, and dropped the hammer several times before commencing blow count records — all deviations that Engineer A's geotechnical consultant testified would have undervalued skin friction values.
Comparative Testing Methodological Fidelity Obligation
Engineer B was obligated to use the same type of driving hammer and penetration depth requirements in the test pile driving program as were used in the original pile driving, or to disclose and account for any deviations in the resulting report, so that the test results constituted valid comparators for evaluating the original piles.
During the design and execution of the test pile driving program and in the preparation of the concluding report
Engineer B Compromised Test Condition Replication — Equipment Failure
During the test pile driving program supervised by Engineer B
Among them, that dynamic test equipment failed during the test
Compromised Test Condition Replication State
Engineer B's pile driving test program in which dynamic test equipment failed during testing
Not resolved within the case facts; failure remains undisclosed in the report
Whatever rational Engineer B may employ to draw his conclusion, valid or not, the select language of the report precludes any interpretation that any or all 90 piles met the factor of safety requirement
Dynamic test equipment failure during the test program, which was not disclosed in Engineer B's report despite its material effect on the validity of test results
Engineer B Contradictory Explanation Issuance
Contradictory Professional Explanation Non-Issuance Capability
Engineer B failed to maintain consistency in professional explanations, first claiming pile driving records were outside scope of work, then claiming they were disbelieved as suspicious — issuing contradictory explanations that collectively created an artfully misleading impression about the basis for the omission.
When queried by Engineer A after the report was issued, Engineer B provided a different explanation for the omission of pile driving records than had been previously given
Sequential contradictory statements: first 'not in scope of work,' then 'we just did not believe the driving records' and 'the driving records look suspicious'
When queried by Engineer A after the report was issued by Engineer B, Engineer B said: 'We just did not believe the driving records and there was also the issue of whether the pile was vented...'
Engineer B Contradictory Explanation Non-Issuance Scope vs Disbelief
Engineer B gave two mutually incompatible explanations for the same omission: (1) pile driving records were outside the scope of work, and (2) the records were not believed. These explanations are logically inconsistent — if records were outside scope, their credibility was irrelevant; if records were disbelieved, they were within scope but rejected.
Contradictory Professional Explanation Non-Issuance Obligation
Engineer B was obligated to provide a consistent, non-contradictory explanation for the decision not to review pile driving records, refraining from first citing scope-of-work limitations and then substituting an incompatible explanation of disbelieving the records when the first explanation was challenged.
When queried by Engineer A after the report was issued by Engineer B, Engineer B said: 'We just did not believe the driving records...The driving records look suspicious.'
Engineer B Contradictory Explanations for Ignoring Pile Driving Records
From post-report query by Engineer A through mediation proceedings
Engineer B's post-report explanations for not consulting pile driving records
Not resolved within the case facts presented
When queried by Engineer A after the report was issued by Engineer B, Engineer B said: 'We just did not believe the driving records and there was also the issue of whether the pile was vented... The driving records look suspicious.'
Engineer A querying Engineer B about why pile driving records were not considered, revealing inconsistency between scope-based and credibility-based justifications
Engineer B Contradictory Professional Explanation Non-Issuance Failure
Engineer B failed to maintain consistency in professional explanations for the omission of pile driving records, first claiming they were outside scope of work and then claiming they were disbelieved — creating an artfully misleading pattern
Engineer B provided contradictory explanations for the omission of pile driving records from the test pile driving report
Failure: Engineer B issued contradictory explanations for omitting pile driving records (scope-of-work vs. disbelief), constituting an artfully misleading pattern violating professional obligations of honesty
Engineer B was obligated to provide a consistent, non-contradictory explanation for the decision not to review pile driving records
Engineer B Contradictory Professional Explanation Scope vs Disbelief
When queried about why pile driving records were not analyzed, Engineer B first claimed it was outside the scope of work, then contradicted this by stating he did not believe the records — providing two incompatible explanations that undermined the credibility and integrity of the report.
Engineer B was obligated to refrain from issuing contradictory explanations for the omission of pile driving records — first claiming the omission was outside the scope of work, then substituting the incompatible explanation that he did not believe the records.
Engineer B initially claimed that pile driving records were not reviewed because it 'was not in our scope of work,' then contradicted this by stating he did not believe the records.
When queried about the basis for omitting pile driving records from the concluding report
Engineer B Contradictory Professional Justification Constraint — Scope vs. Disbelief
When queried by Engineer A after the report was issued, Engineer B provided a substantively different explanation (disbelief of records, venting concern) from the prior stated reason (scope of work), revealing that neither explanation was a complete or honest account of the decision.
Contradictory Professional Justification Non-Issuance Constraint
Engineer B was prohibited from offering mutually inconsistent explanations for the decision not to review pile driving records — first claiming it was outside the scope of work, then claiming the records were not believed — as these contradictory justifications constitute artfully misleading statements about the basis for the professional omission.
NSPE Code of Ethics — truthfulness, non-deception, and objectivity provisions
In post-report communications and explanations to Engineer A and other parties
Engineer B said: 'We just did not believe the driving records and there was also the issue of whether the pile was vented to allow air to escape from below a closure plate that was included in the pile to separate the concrete fill in the pile from the clay. The driving records look suspicious.'
Engineer B Contradictory Professional Justification Scope vs Disbelief Constraint Instance
Engineer B offered two contradictory explanations for not reviewing pile driving records: (1) it was outside the scope of work, and (2) Engineer B did not believe the records. These contradictory justifications were found to constitute artfully misleading statements.
Engineer B was prohibited from offering mutually inconsistent explanations for the omission of pile driving records — first claiming scope-of-work limitation, then claiming disbelief of the records — as these contradictory justifications constitute artfully misleading statements violating the NSPE Code's truthfulness and non-deception provisions.
NSPE Code of Ethics — truthfulness and non-deception provisions; prohibition on artfully misleading statements
Engineer B's selective use of technical fact was inspired by the adversarial circumstance, nor does it matter.
During post-report explanatory proceedings and mediation testimony
Engineer B Dynamic Equipment Failure Non-Disclosure
Dynamic Pile Test Equipment Failure Disclosure Capability
Engineer B failed to disclose in the concluding report that dynamic test equipment had failed during the test pile driving program, omitting material information necessary for readers to independently evaluate the reliability of the test results.
Dynamic test equipment failed during the test pile driving program supervised by Engineer B; this failure was not reported in Engineer B's concluding report but was disclosed by Engineer A's independent geotechnical consultant
Concluding report omitted any mention of dynamic test equipment failure despite its occurrence during the test program
Engineer B Dynamic Pile Test Equipment Failure Disclosure Failure
Engineer B failed to disclose in the concluding report that dynamic test equipment had failed during the test pile driving program, preventing readers from independently evaluating the reliability and validity of the test results
Engineer B supervised test pile driving program; dynamic test equipment failed during the program; Engineer B's concluding report omitted this material fact
Failure: Engineer B's concluding report omitted the material fact that dynamic test equipment failed during the test program
Material facts, however, were not addressed in Engineer B's report. Among them, that dynamic test equipment failed during the test
Engineer B Expert Report Peer Review Opportunity Foreclosure Language
Engineer B's report language was so absolute that it effectively denied the opportunity for expert engineering review and interpretation of the pile driving test, preventing any finding that the piles were adequate.
Expert Report Peer Review Opportunity Preservation Constraint
Engineer B was constrained to draft the concluding pile driving test report using language that preserved the opportunity for independent expert engineering review and interpretation, and was prohibited from using language so absolute and conclusory that it precluded any interpretation that any or all 90 piles met the factor of safety requirement.
NSPE Code of Ethics — objectivity and completeness provisions; professional obligation not to foreclose legitimate technical review
At time of drafting and submitting the concluding report
The opportunity for expert engineering review and interpretation of the pile driving test was effectively denied by Engineer B's report.
Engineer B Fact-Gathering Diligence Failure Contractor Workers On-Site Representatives
Engineer B failed to communicate with Engineer A's on-site representative and failed to inquire from the contractor, workers, or others present at the pile driving, constituting a failure of fact-gathering diligence.
Fact-Gathering Diligence Before Adverse Technical Conclusion Constraint
Engineer B was constrained to exercise diligent fact-gathering — including communicating with Engineer A's on-site representative and inquiring from the contractor, workers, and others on the job — before rendering adverse conclusions about the adequacy of the 19 piles.
NSPE Code of Ethics — objectivity, completeness, and diligent investigation obligations
During the test pile driving program and prior to finalizing the concluding report
However, Engineer B's failure to inquire from the contractor, workers or others on the job is a failure of fact gathering diligence.
Engineer B Fact-Gathering Diligence Failure On-Site Representative
Engineer B supervised a test pile driving program retained by the municipality in an adversarial dispute with Engineer A; Engineer B failed to communicate with Engineer A's on-site representative and failed to inquire from contractor, workers, or others on the job.
Engineer B was obligated to communicate with Engineer A's on-site representative and to inquire from the contractor, workers, and others on the job before drawing conclusions about pile adequacy in the test pile driving program.
During and immediately following the test pile driving program, before finalizing the concluding report
Engineer B Fact-Grounded Opinion Constraint — Pile Adequacy Adverse Conclusions
Engineer B's adverse opinion about the 19 piles was based solely on skin friction resistance calculations applied to penetration depth, while intentionally excluding the pile driving records and wave equation analysis that would have shown the piles met design requirements.
Engineer B was required to base the adverse technical opinion about the adequacy of the 19 piles on all established facts and completed professional analysis — including the pile driving records and wave equation calculations — rather than on a selective subset of data that excluded primary technical documentation.
NSPE Code of Ethics — objectivity and completeness provisions
This opinion was based upon the fact that the nineteen piles did not reach sufficient depth to develop the full strength when applying skin friction resistance value to the square footage of pile penetration.
At the time of forming and issuing the adverse technical opinion in the expert report
Engineer B Fact-Grounded Technical Opinion Obligation Violated
Engineer B expressed technical opinions that 19 piles did not meet safety factor requirements based on selectively presented data, omitting material findings (equipment failure, piles driven to refusal, wave equation results) that were directly relevant to those conclusions.
Fact-Grounded Technical Opinion Obligation
Engineer B was obligated to express technical opinions about pile adequacy only when those opinions were founded upon all established facts and completed professional analysis — including pile driving records, wave equation analysis, and equipment failure data — and to include all relevant and pertinent information in the professional report.
At the conclusion of the program Engineer B reports that 19 piles do not meet the required factor of safety for the reason that the piles were not driven to a sufficient depth that pile friction resistance would support the load.
At the time of forming and publishing technical opinions in the concluding report
Engineer B Fact-Grounded Technical Opinion Pile Adequacy Conclusions
Engineer B's adverse opinion about 19 piles was based solely on skin friction depth calculations while omitting wave equation analysis that would have shown the piles met strength requirements, rendering the opinion incomplete and not fully fact-grounded.
Engineer B was obligated to base the adverse technical opinion about the 19 piles on all established facts and completed professional analysis — including wave equation calculations from pile driving records — rather than on skin friction depth calculations alone, and to include all relevant and pertinent information in the professional report.
During the formation and publication of the adverse technical opinion in the concluding report
Engineer B Fact-Grounded Technical Opinion Pile Adequacy Without Full Evidence Base
Engineer B issued adverse conclusions about pile adequacy without reviewing pile driving records that would have shown the piles were driven to refusal and that wave equation analysis supported their adequacy.
Engineer B was constrained to base adverse technical opinions about the adequacy of the 19 piles on all established facts and completed professional analysis — including pile driving records, wave equation results, and equipment failure data — and was prohibited from issuing adverse findings without this complete factual foundation.
NSPE Code of Ethics — objectivity provisions; requirement that opinions be founded on established facts and completed analysis
Engineers must be exponents of all the available technical facts as the basis for problem solving.
At time of forming and reporting adverse conclusions about pile adequacy
Engineer B Facts Versus Adversarial Interests Distinction Failure
Facts-Versus-Adversarial-Interests Distinction Capability
Engineer B failed to maintain the distinction between technical facts (which are not adversarial) and adversarial interests (which are polarizing), allowing the adversarial context to distort his selection and presentation of technical facts
Engineer B retained in adversarial dispute context; allowed adversarial interests to polarize his selection of technical facts in the test pile driving report
Failure: Engineer B selectively used technical facts in a manner consistent with defending the municipality's adversarial position rather than treating all technical facts as equally available for objective analysis
Facts are not adversarial, even if they may be conflicting.
Engineer B Failure to Consult Available On-Site Representatives
Throughout the development of Engineer B's report
Engineer B's investigative process for the pile adequacy report
Post-report query by Engineer A (after report was already issued)
Engineer B proceeding to develop and issue a report on pile adequacy without contacting Engineer A's on-site representatives, contractors, or workers
Engineer B was retained by the municipality to supervise test pile driving and produce a report; the faithful agent obligation required honest and complete reporting even if some findings were adverse to the municipality's litigation interests.
Engineer B was obligated to act as a faithful agent to the municipality by providing a complete and accurate technical report on the test pile driving program, serving the municipality's legitimate interests within the bounds of professional ethics — which required including all material findings rather than selectively reporting only findings favorable to the municipality's litigation position.
the municipality retained Engineer B to supervise the driving of several test piles to see whether the piles would gain sufficient strength to meet the design calculation requirements.
Throughout the engagement to supervise test pile driving and produce the concluding report
Engineer B Faithful Agent Obligation Violated by Selective Reporting
Engineer B was retained by the municipality as a faithful agent to supervise test pile driving and produce a report evaluating pile adequacy; the faithful agent duty required complete and objective reporting that genuinely served the municipality's interests, not selective reporting that disserved those interests.
Engineer B was obligated to act as a faithful agent to the municipality by producing a complete and objective report that genuinely served the municipality's interests — including by presenting all material technical findings that would enable the municipality to make informed decisions about the litigation — rather than selectively omitting material facts in a misguided attempt to 'defend' the client.
Throughout the engagement, from retention through report issuance
Engineer B Incomplete Circumstantial Knowledge Adverse Pile Conclusions Without Full Record Review
Engineer B rendered adverse conclusions about pile adequacy without reviewing pile driving records that would have shown the piles were driven to refusal — a material circumstance informing Engineer A's original professional judgment.
Incomplete Circumstantial Knowledge Critique Prohibition Constraint
Engineer B was prohibited from rendering specific adverse conclusions about the adequacy of Engineer A's 19 piles without reviewing the pile driving records, wave equation analysis, and other material evidence that informed Engineer A's original professional judgment.
NSPE Code of Ethics — objectivity provisions; prohibition on criticism without full knowledge of circumstances
Prior to and at time of finalizing the concluding report
Engineer B Incomplete Knowledge Restraint Adverse Conclusions Failure
Incomplete Knowledge Restraint in Competitor Critique Capability
Engineer B failed to restrain from rendering specific adverse conclusions about the adequacy of Engineer A's 19 piles without reviewing the pile driving records that constituted the primary evidence of pile performance
Engineer B formed adverse technical opinions about Engineer A's pile foundation design without reviewing available pile driving records or consulting available witnesses
Failure: Engineer B issued adverse conclusions about pile adequacy without consulting pile driving records, on-site representatives, contractors, or workers — all of whom constituted available evidence
Engineer B Incomplete Knowledge Restraint Adverse Conclusions Without Full Record Review
Engineer B rendered specific adverse conclusions about pile safety factors without reviewing pile driving records showing piles were driven to refusal, and without consulting Engineer A's on-site representative — constituting critique without complete situational knowledge.
Incomplete Knowledge Restraint in Competitor Critique Obligation
Engineer B was obligated to refrain from rendering specific adverse conclusions about the adequacy of Engineer A's 19 piles without reviewing the pile driving records that would have provided complete situational knowledge of the conditions under which those piles were driven.
Before finalizing and publishing adverse technical conclusions about Engineer A's pile design
Engineer B Incomplete Risk Disclosure Constraint — Equipment Failure Non-Disclosure
The failure of dynamic test equipment during the test pile program was a material fact bearing on the reliability of Engineer B's test results, yet it was omitted entirely from the concluding report.
Engineer B was prohibited from omitting from the expert report the material fact that dynamic test equipment had failed during the test pile driving program, as this failure was directly relevant to the reliability of the test results and the validity of the adverse conclusions about the 19 piles.
NSPE Code of Ethics — completeness and non-deception provisions
At the time of preparation and submission of the concluding expert report
The geotechnical consultant testified and showed that dynamic test equipment had failed during the test and that the test piles were not driven to the same depth of penetration
Engineer B Incumbent Engineer Knowledge Constraint — Failure to Notify Engineer A
Engineer B conducted a full evaluation of Engineer A's pile design and issued an adverse expert report without at any time contacting Engineer A or Engineer A's representatives, despite their availability.
Incumbent Engineer Knowledge Requirement Before Peer Review Constraint
Engineer B was required to ensure that Engineer A was aware of the review of Engineer A's pile design work before proceeding with substantive evaluation, and was prohibited from conducting a covert evaluation of Engineer A's work without Engineer A's knowledge.
NSPE Code of Ethics — peer review and professional courtesy provisions
Before and during the development of the expert report evaluating Engineer A's pile design
Engineer B Intentional Information Disregard Constraint — Pile Driving Records Wave Equation
Engineer B admitted to not believing the pile driving records and excluded them from the report, despite their status as primary technical documentation and their material bearing on the adverse conclusions about the 19 piles.
Intentional Information Disregard Prohibition Constraint
Engineer B was prohibited from intentionally disregarding the pile driving records when forming adverse conclusions about the 19 piles, as those records — when analyzed using accepted wave equation calculations — would have shown the piles had been driven to essential refusal and possessed strength several multiples over the calculated load requirements.
NSPE Code of Ethics — objectivity, completeness, and truthfulness provisions; BER Case 95-5 precedent
Throughout the development of the expert report and test pile program
Engineer B Intentional Information Disregard Pile Driving Records
Engineer B initially claimed pile driving records were outside scope of work, then admitted to disbelieving them — in either case, the records were not analyzed despite being directly relevant to the adverse conclusions drawn about pile adequacy.
Intentional Information Disregard Prohibition Obligation
Engineer B was obligated to refrain from intentionally disregarding the pile driving records when forming adverse conclusions about the 19 piles, as those records were material evidence that would have altered or qualified the conclusions presented in the report.
During the preparation of the concluding report and when queried about the basis for conclusions
Engineer B Intentional Information Disregard Pile Driving Records Constraint Instance
Engineer B excluded pile driving records from the report, offering contradictory justifications (scope limitation vs. disbelief), while the records would have shown the piles were driven to refusal.
Engineer B was prohibited from intentionally disregarding or selectively omitting the pile driving records when forming and reporting adverse conclusions about the 19 piles, regardless of any claimed scope-of-work limitation or disbelief of the records.
NSPE Code of Ethics — objectivity and truthfulness provisions; prohibition on selective use of technical fact
Throughout the test pile driving program and report preparation
Engineer B Litigation Context Intentional Evidence Disregard
Litigation Context Intentional Evidence Disregard Recognition Capability
Engineer B failed to recognize that intentionally disregarding pile driving records — on the basis that they appeared suspicious — without investigation or disclosure constituted an ethical violation, conflating professional skepticism with impermissible intentional evidence disregard.
Engineer B formed adverse conclusions about 19 piles while intentionally disregarding pile driving records showing essential refusal, without disclosing this disregard or investigating the basis for the suspicious appearance of the records
Explicit statement that pile driving records were disbelieved as suspicious without any investigation, inquiry, or disclosure of the disbelief in the report
Engineer B said: 'We just did not believe the driving records and there was also the issue of whether the pile was vented to allow air to escape from below a closure plate...'
Engineer B was obligated to refrain from intentionally disregarding the pile driving records when forming adverse conclusions about the 19 piles
Engineer B Municipality-Retained Litigation Testing Engineer
{'license': 'Professional Engineer (implied)', 'specialty': 'Geotechnical/pile foundation engineering', 'ethical_issues': ['Incomplete reporting — omitted driving records analysis', 'Omitted disclosure of dynamic test equipment failure', 'Failed to consult available on-site witnesses', 'Did not apply wave equation calculations to driving records', 'Gave contradictory explanations for omissions', "Selective analysis favoring retaining client's litigation position"]}
Retained by the municipality to supervise test pile driving and produce a report evaluating whether piles met design safety factors. Produced a report finding 19 of 90 piles deficient, but omitted material data: failed to report equipment failure, omitted wave equation analysis showing piles at essential refusal, failed to consult Engineer A's on-site representatives, and gave contradictory explanations for scope limitations. Central figure in the ethical analysis.
{'type': 'peer_adversarial', 'target': 'Engineer A Dock Foundation Design Engineer'}
{'type': 'retained_by', 'target': 'Municipality Litigation Testing Client'}
{'type': 'subject_of_observation', 'target': 'Engineer A Geotechnical Consultant'}
Municipality-Retained Litigation Testing Engineer
the municipality retained Engineer B to supervise the driving of several test piles
At no time during the development of Engineer B's report did Engineer B talk to any representative of Engineer A
No effort was made by Engineer B to inquire from contractors, workers, or others on the job
We didn't look at the pile driving records because it was not in our scope of work
We just did not believe the driving records
Engineer B's concluding report omitted the fact that dynamic test equipment failed during the test, a fact testified to by Engineer A's independent geotechnical consultant.
Engineer B was obligated to disclose in the concluding report that dynamic test equipment had failed during the test pile driving program, as this material fact directly affected the validity and interpretation of the test results.
Engineer B's concluding report on the test pile driving program omitted the wave equation analysis results that would have shown the 19 piles met strength requirements, while reporting only the skin friction depth calculation that showed they did not.
Engineer B was obligated to include in the concluding report the material finding that the 19 disputed piles had been driven to essential refusal and that, applying accepted wave equation calculations, those piles would have indicated strength several multiples over the calculated load requirements.
Engineer B Objective and Complete Reporting Wave Equation Omission
Engineer B's concluding report omitted the wave equation analysis showing piles had strength multiples over calculated loads, omitted the dynamic test equipment failure, and omitted that all 19 piles were driven to refusal — all material facts directly relevant to the pile adequacy conclusions.
Engineer B was obligated to include all relevant and pertinent information in the concluding report — including wave equation analysis results, the equipment failure during testing, and the fact that all 19 disputed piles were driven to refusal — as required by the Code of Ethics.
Engineer B Peer Technical Review Opportunity Foreclosure Report Language
Engineer B's report used language that precluded any interpretation that any or all 90 piles met the factor of safety requirement, effectively denying the opportunity for expert engineering review and interpretation of the pile driving test.
Peer Technical Review Opportunity Preservation Obligation
Engineer B was obligated to ensure that the concluding report's language did not foreclose the opportunity for expert engineering review and independent interpretation of the pile driving test results — specifically by not using selective language that precluded any interpretation that the 90 piles met the safety factor requirement.
At the time of drafting and issuing the concluding report
Engineer B Peer Technical Review Opportunity Preservation Failure
Peer Technical Review Opportunity Preservation in Report Language Capability
Engineer B failed to exercise the capability to ensure that report language preserved the opportunity for independent expert engineering review and interpretation of the pile driving test data
Engineer B's concluding report on test pile driving program used language that foreclosed alternative technical interpretations, denying peer review opportunity
Failure: Engineer B's report used select language that precluded any interpretation that any or all 90 piles met the factor of safety requirement, effectively denying the opportunity for expert engineering review
Engineer B Pile Foundation Adequacy Evaluation
Pile Foundation Adequacy Evaluation Competence
Engineer B possessed but incompletely applied pile foundation adequacy evaluation competence, applying only skin friction area calculations while omitting wave equation analysis and failing to account for essential refusal data in the pile driving records when evaluating the 19 disputed piles.
Engineer B was retained to evaluate whether original piles met design safety factors; produced conclusions based on incomplete analytical methodology
Application of skin friction resistance calculations to evaluate pile adequacy; failure to apply wave equation analysis; failure to account for essential refusal in pile driving records
applying accepted wave equation calculations, the piles would have indicated a strength several multiples over the calculated load requirements
Engineer B Pile Foundation Adequacy Evaluation Competence Failure
Engineer B failed to apply the full range of analytical methods — including wave equation analysis and pile driving record interpretation — to evaluate the load-carrying adequacy of the 19 disputed piles, relying instead on skin friction area calculations alone
Engineer B retained to evaluate whether piles met design safety factors; produced report concluding 19 piles failed without applying all available analytical methods
Failure: Engineer B concluded 19 piles did not meet required factor of safety based on insufficient depth for pile friction resistance, without applying wave equation analysis to pile driving records showing piles driven to essential refusal
Engineer B reports that 19 piles do not meet the required factor of safety for the reason that the piles were not driven to a sufficient depth that pile friction resistance would support the load.
all 19 test piles reported as failing the test were driven to refusal.
Engineer B Precedent-Based Report Completeness Standard
Precedent-Based Report Completeness Standard Application Capability
Engineer B failed to apply the BER precedent-based standard for report completeness — established in BER Cases 95-5 and 99-8 — that requires inclusion of all relevant and pertinent information including findings contrary to the preparer's preferred conclusion, and that prohibits intentional disregard of contrary information.
Engineer B's report in the adversarial litigation context failed to meet the BER-established standard for completeness and non-selectivity in professional engineering reports
Production of a report omitting essential refusal data and equipment failure findings; intentional disregard of pile driving records; invocation of scope limitation as excuse for omission
Engineer B Precedent-Based Report Completeness Standard Application Failure
Engineer B failed to apply the professional standard for completeness and integrity in preparing engineering reports, including the requirement to include all relevant and pertinent information and to refrain from intentional disregard of contrary information
Engineer B produced concluding report on test pile driving that failed to meet professional completeness standards by omitting material facts
Failure: Engineer B's report selectively omitted material technical findings including pile driving records, wave equation analysis results, and equipment failure information
As evidence, the report appears to serve no purpose except to impugn Engineer A, or to support the original testimony of the municipality's expert witness.
Engineer B Report Selective Omission of Pile Driving Records and Equipment Failure
From issuance of Engineer B's report through mediation proceedings
Selective Information Omission in Professional Report State
Engineer B's concluding report on pile adequacy
Disclosure through Engineer A's geotechnical consultant's testimony and subsequent querying of Engineer B
Engineer B issuing a report that omitted pile driving records showing piles driven to essential refusal, omitted wave equation calculations showing multiples of required strength, and omitted the dynamic test equipment failure
Engineer B Retained Expert Impugning Engineer A Prohibition Instance
Engineer B's report, by selectively omitting material facts favorable to Engineer A's conclusions, functioned primarily to impugn Engineer A rather than to provide objective technical analysis.
Competitor Reputation Injury Prohibition Constraint
Engineer B was prohibited from producing a technical report that served no evident engineering purpose except to impugn Engineer A's professional reputation or to support the municipality's expert witness testimony, as such a report constitutes an attempt to injure the professional reputation of another engineer.
NSPE Code of Ethics — prohibition against maliciously or falsely injuring the professional reputation of another engineer
Engineer B Scope-of-Work Non-Exculpation Constraint — Pile Driving Records Omission
Engineer B initially claimed the pile driving records were not reviewed because it was outside the scope of work, but later admitted to disbelieving the records — revealing that the scope justification was a post-hoc rationalization for a predetermined decision to exclude material evidence.
Scope-of-Work Non-Exculpation for Material Evidence Omission Constraint
Engineer B was prohibited from invoking the contractual scope-of-work limitation as justification for omitting the pile driving records from the expert report, given that those records constituted material evidence bearing directly on the adverse conclusions about the 19 piles.
NSPE Code of Ethics — objectivity, completeness, and non-deception provisions
At the time of report preparation and in post-report explanations
Engineer B Scope-of-Work Non-Exculpation Material Evidence Omission Pile Records Constraint Instance
Engineer B first claimed scope-of-work limitation as justification for not reviewing pile driving records, then claimed disbelief of the records — offering contradictory justifications that the NSPE found constituted artfully misleading statements.
Engineer B was prohibited from invoking the contractual scope-of-work limitation as justification for omitting the pile driving records from the concluding report, as the materiality of those records to the adverse conclusions superseded any scope limitation.
NSPE Code of Ethics — completeness and non-deception provisions; scope-of-work does not excuse material omission
At time of drafting report and during subsequent explanatory proceedings
Engineer B Scope-of-Work Non-Excuse Material Evidence Omission Pile Records
Engineer B initially claimed that pile driving records were not reviewed because it 'was not in our scope of work,' then contradicted this by stating he did not believe the records; the case discussion establishes that scope-of-work does not excuse material omissions.
Scope-of-Work Non-Excuse for Material Evidence Omission Obligation
Engineer B was obligated to refrain from invoking a contractual scope-of-work limitation as justification for omitting the pile driving records from the concluding report, recognizing that the scope-of-work clause did not relieve him of the ethical obligation to include all material facts necessary for a complete and non-misleading professional opinion.
At the time of preparing the report and when queried about the omission of pile driving records
Engineer B Scope-of-Work Non-Excuse Material Omission Recognition Failure
Scope-of-Work Non-Excuse Material Omission Recognition Capability
Engineer B failed to recognize that the contractual scope-of-work limitation did not constitute a valid professional justification for omitting pile driving records from the technical report
Engineer B's report omitted pile driving records; Engineer B offered scope-of-work as justification, which the BER found to be an impermissible excuse for material omission
Failure: Engineer B invoked scope-of-work as justification for not reviewing pile driving records, then contradictorily claimed the records were disbelieved — neither justification being professionally valid
by excluding the pile driving records, Engineer B has denied himself the opportunity to present a rational for discounting their value
Engineer B Scope-of-Work Non-Excuse Pile Driving Records
Engineer B initially justified not reviewing pile driving records by claiming it was outside the scope of work, then contradicted this by stating the records were not believed — in either case, the scope-of-work excuse was used as cover for a material omission.
Engineer B was obligated to refrain from invoking the contractual scope-of-work limitation as justification for not reviewing or including the pile driving records in the concluding report, as those records were material to the adverse conclusions drawn and were readily available.
During preparation of the report and when queried about the basis for omitting pile driving record analysis
Engineer B Scope-of-Work Non-Excuse Recognition Failure
Engineer B failed to recognize that the contractual scope-of-work limitation did not excuse the omission of pile driving records from the concluding report, improperly invoking scope as justification for not reviewing or including material evidence.
Engineer B's concluding report omitted pile driving records showing piles driven to essential refusal; Engineer B initially justified this omission by citing scope-of-work limitations
Explicit statement that pile driving records were not reviewed 'because it was not in our scope of work'; omission of pile driving records showing 19 piles driven to essential refusal from concluding report
Engineer B Selective Information Omission Recognition Failure
Engineer B failed to recognize that omitting material information — including that 19 piles were driven to essential refusal and that dynamic test equipment failed — created a misleading and incomplete picture in violation of the obligation to include all relevant and pertinent information
Engineer B's concluding report on test pile driving omitted material facts that were required to be included under professional code obligations
Failure: Engineer B's report omitted that all 19 test piles reported as failing were driven to refusal, and that dynamic test equipment had failed during the test program
Engineer B Selective Information Omission in Pile Driving Report
From completion of pile driving test program through submission and reliance on Engineer B's report
Engineer B's pile driving test report submitted to municipality
Not resolved within the case facts; report remains as submitted
Among them, that dynamic test equipment failed during the test, and that all 19 test piles reported as failing the test were driven to refusal
By excluding the pile driving records, Engineer B has denied himself the opportunity to present a rational for discounting their value
Engineers shall include all relevant and pertinent information in such report, statements or testimony
The select language of the report precludes any interpretation that any or all 90 piles met the factor of safety requirement
Engineer B's preparation and submission of report omitting dynamic test equipment failure and the fact that all 19 failing piles were driven to refusal
Engineer B Wave Equation Analysis Application Failure
Wave Equation Analysis Application Capability
Engineer B failed to apply wave equation analysis to the available pile driving records, which would have yielded materially different capacity conclusions than the skin friction area calculations alone used in the report
Engineer B supervised test pile driving program and produced concluding report; failed to apply wave equation analysis to pile driving records showing piles driven to essential refusal
Failure: Engineer B's report omitted wave equation analysis results that would have shown piles driven to essential refusal satisfied design safety factor requirements
Engineer B Wave Equation Analysis Omission
Engineer B failed to apply or disclose wave equation analysis to the pile driving records, omitting from the concluding report the material finding that the 19 disputed piles had been driven to essential refusal and that wave equation calculations would indicate strength several multiples over design requirements.
Engineer B evaluated pile adequacy using only skin friction resistance calculations, omitting wave equation analysis that would have yielded materially different capacity conclusions for the 19 disputed piles
Concluding report based solely on skin friction area calculations without wave equation analysis; omission of essential refusal finding from report
Engineer B Written Report Completeness Constraint — Wave Equation Results and Equipment Failure
Engineer B's concluding report omitted the wave equation analysis results, the pile driving records showing essential refusal, and the equipment failure during testing — all of which were material to the adverse conclusions about the 19 piles.
Engineer B was required to include in the concluding expert report all material findings — specifically: (1) that the 19 disputed piles had been driven to essential refusal per the pile driving records; (2) that wave equation analysis would show those piles had strength several multiples over design requirements; and (3) that dynamic test equipment had failed during the test pile program — as omission of these facts rendered the report materially incomplete and misleading.
NSPE Code of Ethics — complete reporting obligation; Professional Report Integrity Standard
Engineer B Written Report Completeness Wave Equation and Equipment Failure Omission
Engineer B's concluding report on the 19 disputed piles omitted that all 19 had been driven to refusal and that dynamic test equipment had failed during testing — both material facts bearing on the adequacy conclusions.
Engineer B was constrained to include all relevant and pertinent information in the pile driving test report — including the wave equation analysis results showing piles driven to refusal and the failure of dynamic test equipment — and was prohibited from omitting these material facts regardless of adversarial context.
NSPE Code of Ethics — obligation to include all relevant and pertinent information in reports, statements, or testimony
Engineer B report development during absence of communication with Engineer A representatives
Engineer B's report before Engineer B's contradictory explanations
Engineer B's report development before Engineer A querying Engineer B
Faithful Agent Obligation Invoked By Municipality Retaining Engineer B
Engineer B's engagement to supervise test pile driving and produce evaluation report
Engineer B was retained by the municipality as a faithful agent to supervise test pile driving and produce a report evaluating pile adequacy; the faithful agent obligation required diligent execution of this assignment, but the ethical limits of that obligation prohibited producing a report that selectively omitted material findings favorable to the opposing party.
The faithful agent obligation permits engineers to diligently pursue their client's legitimate interests but does not authorize selective omission of material technical findings; the 'within ethical limits' qualifier is operative and overrides pure client loyalty.
The ethical limits qualifier in the faithful agent obligation means that client loyalty cannot justify selective reporting; Engineer B's obligation to the municipality was bounded by the obligation to produce a complete and honest technical report.
Original geotechnical firm retained for the project
Geotechnical firm's report on pile set-up strength gain
Engineer A testified that the geotechnical firm's report expected that the piles would gain sufficient additional strength within 30 days to meet driving resistance requirements
Engineer A (relied upon in design and testimony); Municipality (basis for test pile program)
Technical reference establishing the design basis that piles would gain sufficient additional strength within 30 days of initial driving to meet resistance requirements, forming the foundation of Engineer A's design rationale
Geotechnical Report Strength-Gain Anticipation
Honesty Principle Violated By Engineer B Contradictory Explanations
Engineer B's post-report explanation to Engineer A
Engineer B provided contradictory explanations for why pile driving records were not analyzed — first claiming it was outside the scope of work, then claiming the records were reviewed but disbelieved as suspicious — revealing a lack of honesty in accounting for the omission of material evidence from the report.
Professional honesty requires consistent and truthful accounting of one's professional decisions; contradictory explanations for the same omission indicate either dishonesty or a failure to maintain adequate records of professional decision-making.
Honesty in professional representations is not subordinated to client litigation interests; the contradictory explanations compound the original omission.
Incomplete Situational Knowledge Restraint Violated By Engineer B Adverse Conclusions Without Full Record Review
Engineer B's conclusions about the 19 piles not meeting safety factor requirements
Engineer B rendered specific adverse conclusions about the adequacy of 19 piles without reviewing the pile driving records that would have provided the full situational context for why those piles met driving refusal prior to predicted depth — forming critical opinions without complete knowledge of the circumstances.
Engineers forming adverse technical opinions about another engineer's work must have complete situational knowledge before rendering specific critical conclusions; forming adverse opinions without reviewing available primary records violates this restraint.
Incomplete Situational Knowledge Restraint in Competitor Critique
The obligation to have complete situational knowledge before rendering adverse opinions is not overridden by scope limitations or client preferences; the engineer must either obtain adequate knowledge or qualify conclusions accordingly.
Mediation Proceeding Transparency Obligations
Deposition Transparency Obligation State
Engineer A and Engineer B's obligations during mediation testimony
Settlement of claim for $300,000 shared between Engineer A and municipality
Engineer A testified that the geotechnical firm's report expected that the piles would gain sufficient additional strength within 30 days.
One expert testified that the pile driving records indicated that many of the piles did not... meet driving resistance sufficient to satisfy the load carrying requirements.
Contractor's lawsuit against Engineer A and municipality proceeding to mediation with expert testimony
Methodological Consistency Obligation Implicated in Pile Driving Test Program
Test pile driving program comparative to original 90-pile foundation design
The test pile driving program was designed to evaluate Engineer A's original pile driving work; material departures from original conditions — including equipment failure during dynamic testing — were material to the validity of the comparative conclusions and should have been disclosed in Engineer B's report.
Equipment failure during dynamic testing constituted a material departure from the conditions required for valid comparison with the original pile driving program, and its omission from Engineer B's report violated the methodological consistency disclosure obligation.
Methodological Consistency Obligation in Comparative Testing
The methodological consistency obligation required disclosure of equipment failure regardless of its effect on the municipality's litigation position.
Methodological Consistency Violated By Engineer B Using Vibratory Hammer
Test pile driving program design and supervision
Engineer B supervised a test pile driving program intended to evaluate whether original piles would gain sufficient strength, but used a vibratory hammer that was not used in the original driving, drove piles to different depths than the originals, and dropped the hammer several times before commencing blow count records — all material departures from original conditions that were not disclosed in the concluding report.
A comparative test program must replicate original conditions with sufficient fidelity to permit valid comparison; material departures must be disclosed and their impact on test validity assessed; failure to do so renders the test results misleading.
The obligation to conduct and report methodologically valid comparative tests is not overridden by client preferences for particular test outcomes.
Also, after the 30 day set up, the driving hammer was dropped several times to start the hammer before the record of blow counts commenced.
{'retained_by': 'Municipality', 'testimony_subject': 'Pile driving records and driving resistance compliance', 'proceeding_type': 'Mediation'}
Expert witness(es) retained by the municipality during mediation proceedings who testified that pile driving records indicated many piles did not meet driving resistance sufficient to satisfy load-carrying requirements of the design calculations.
{'type': 'testifies_against', 'target': 'Engineer A Dock Foundation Design Engineer'}
the municipality brought in expert witnesses to support their case
One expert testified that the pile driving records indicated that many of the piles did not, at the time of initial driving, meet driving resistance sufficient to satisfy the load carrying requirements of the design calculations
{'entity_type': 'Municipal government', 'dispute_role': 'Adversarial party seeking to attribute settlement costs to Engineer A'}
Party to an adversarial dispute with Engineer A over settlement cost sharing; arranged and funded the test pile driving program; retained Engineer B; ultimately harmed by Engineer B's incomplete report which misdirected conclusions.
{'type': 'adversarial_party_against', 'target': 'Engineer A Dock Foundation Design Engineer'}
{'type': 'retains', 'target': 'Engineer B Adversarial Litigation Testing Supervisor'}
an adversarial relationship is established between the municipality and Engineer A to resolve the sharing of a settlement cost between the two
does a disservice to Engineer B's client municipality by potentially misdirecting a conclusion
the municipality arranged for a test pile driving program
{'entity_type': 'Municipal government', 'litigation_status': 'Co-defendant; co-settled for $300,000', 'role_in_testing': 'Retained Engineer B to conduct test pile driving'}
Original client retaining Engineer A for dock design; co-defendant in contractor lawsuit; retained Engineer B to supervise test pile driving during mediation; brought in expert witnesses to support their case.
{'type': 'client_of', 'target': 'Engineer A Dock Foundation Design Engineer'}
{'type': 'retains', 'target': 'Engineer B Municipality-Retained Litigation Testing Engineer'}
{'type': 'retains', 'target': 'Municipality Expert Witness Engineer'}
Engineer A was retained by a municipality to design a dock
Municipality Retains Engineer B → Selective Omission in Report
Municipality vs Engineer A Adversarial Proceeding Fact Polarization
From establishment of adversarial relationship between municipality and Engineer A through the pile driving test program and reporting
In this case, an adversarial relationship is established between the municipality and Engineer A to resolve the sharing of a settlement cost between the two
Adversarial Proceeding Fact Polarization State
The adversarial legal/quasi-legal proceeding between the municipality and Engineer A over settlement cost sharing
Adversarial interests, however, are polarizing to the effect that some facts may be preferred by one interest over the other
Facts are not adversarial, even if they may be conflicting
It is not evident from the facts of the case that Engineer B's selective use of technical fact was inspired by the adversarial circumstance, nor does it matter
Municipality establishing adversarial relationship with Engineer A to resolve settlement cost sharing, and retaining Engineer B to contest Engineer A's conclusions
National Society of Professional Engineers
Board of Ethical Review in evaluating Engineer B's conduct
Primary normative authority governing Engineer B's obligations to produce a complete, accurate, and non-misleading expert report, including obligations not to omit material facts such as equipment failure and wave equation results
NSPE Code of Ethics - Complete Reporting Obligation
Cited as the governing ethical authority requiring engineers to include all relevant and pertinent information in reports, statements, or testimony; used to evaluate Engineer B's selective omission of material facts from the pile driving test report
Current at time of case (Code III.1.f referenced, now removed)
Objectivity Principle Violated By Engineer B Selective Reporting
Engineer B's concluding report conclusions regarding pile adequacy
Engineer B rendered a technical opinion that 19 piles did not meet safety factor requirements based on skin friction depth calculations alone, while omitting the wave equation analysis that would have shown the piles met requirements — producing a selectively framed conclusion that served the municipality's litigation position rather than an objective technical assessment.
Objectivity requires that technical opinions reflect all material analytical methods and findings, not only those that support the retaining client's position; selective application of analytical methods to reach a predetermined conclusion violates objectivity.
Objectivity is not balanced away by client loyalty in technical reporting; the engineer's duty to render objective opinions is paramount.
Objectivity Principle Violated by Engineer B Selective Data Use
Test pile driving report conclusions about 19 piles failing safety factor requirements
Engineer B rendered technical conclusions about pile safety factors based on selectively presented data, omitting material findings that would have undermined those conclusions — violating the objectivity principle requiring technical opinions to be based on objective assessment rather than client-serving bias.
Objectivity required Engineer B to present all material technical findings bearing on his conclusions, including equipment failure and pile refusal data, rather than selectively presenting only those findings that supported the municipality's preferred outcome.
Objectivity obligation overrides client preference for favorable conclusions; selective data presentation to support a client's litigation position is a violation of objectivity regardless of the engineer's motivations.
Omission Materiality Threshold Crossed By Engineer B Wave Equation Omission
Engineer B's decision not to include wave equation analysis in the concluding report
Engineer B's omission of the wave equation analysis — which would have shown the 19 disputed piles had strength several multiples over calculated load requirements — crossed the materiality threshold for required disclosure because this information would directly have affected the decision-making of the parties relying on the report in mediation proceedings.
The omission of the wave equation results was material because it would have fundamentally altered the conclusions of the report and the parties' understanding of pile adequacy; material omissions of this nature are not ethically permissible regardless of scope limitations.
Omission Materiality Threshold in Professional Disclosure
The materiality threshold having been crossed, the omission constitutes an ethical violation that the scope-of-work defense cannot cure.
Pile driving records for 90-pile dock foundation
the pile driving records indicated that many of the piles did not, at the time of initial driving, meet driving resistance sufficient to satisfy the load carrying requirements
Engineer A (relied upon); Engineer B (dismissed without review); Expert witnesses (cited in testimony)
Primary technical documentation recording blow counts and driving resistance for each of the 90 piles; central to the dispute over whether piles met design requirements, and explicitly dismissed by Engineer B without investigation
Piles Driven to Refusal → Contradictory Post-Report Explanations
Professional norms governing completeness and accuracy of engineering expert reports
Engineer B (violated); Engineer A's geotechnical consultant (observed omissions)
Governs Engineer B's obligation to include all material findings in the expert report, including the failure of dynamic test equipment, the wave equation analysis results, and the pile driving records showing essential refusal — all of which were omitted
Professional Accountability Invoked For Engineer B Report Deficiencies
Engineer B's concluding report and the professional decisions made during its preparation
Engineer B, as the licensed professional responsible for the test pile driving supervision and concluding report, bears professional accountability for the report's material omissions — including the omission of wave equation results, equipment failure disclosure, and failure to consult available evidence — regardless of client instructions or scope limitations.
Professional accountability requires that engineers own the consequences of their professional decisions, including decisions about what to include or omit from technical reports; accountability cannot be deflected by scope limitations or client direction.
Professional accountability is not diminished by adversarial context or client instructions; Engineer B remains accountable for the professional adequacy of the report.
Professional Report Integrity Standard - Pile Driving Test Report
Professional engineering community / NSPE Code of Ethics
Professional norms requiring completeness and non-selective use of technical facts in engineering reports
Board of Ethical Review in criticizing Engineer B's report
Applied to evaluate Engineer B's failure to include material facts in the pile driving test report — specifically the failure of dynamic test equipment and that all 19 failing piles were driven to refusal — constituting selective use of data that misdirected conclusions and disserved the client
Prohibition on Reputation Injury Implicated By Engineer B Report Against Engineer A
Engineer B's concluding report and its effect on Engineer A's professional standing
Engineer B's report, by selectively omitting wave equation results and driving record analysis that would have vindicated Engineer A's design, effectively injured Engineer A's professional reputation in litigation proceedings — with Engineer B retained by the opposing party and therefore standing to benefit indirectly from Engineer A's diminished standing.
The prohibition on reputation injury through competitive critique applies when an engineer's selective or incomplete technical report has the effect of unjustly diminishing another engineer's professional standing, particularly in adversarial proceedings where the reporting engineer is retained by the opposing party.
Prohibition on Reputation Injury Through Competitive Critique
The prohibition on reputation injury is not overridden by the adversarial litigation context; the obligation to avoid unjust injury to another engineer's reputation persists regardless of the retaining party's interests.
Was it ethical for Engineer B to not have included the failed operation of the test equipment in his report?
Does the fact that Engineer B offered two contradictory post-report explanations for ignoring the pile driving records — first claiming it was outside the scope of work, then claiming the records were simply not believed — constitute a violation of the honesty and non-distortion obligations independent of the report's substantive omissions?
To what extent does Engineer B's use of a vibratory hammer and failure to replicate original driving conditions — rather than merely the omissions in the written report — independently constitute an ethical violation by producing a test whose results were structurally incomparable to the original pile driving program?
Was it ethical for Engineer B to issue adverse conclusions about the adequacy of Engineer A's pile design without first notifying Engineer A that such an evaluation was underway, given that Engineer A's on-site representatives held material factual knowledge directly relevant to Engineer B's conclusions?
Does the municipality's retention of Engineer B in an adversarial litigation context create any ethical obligations for the municipality itself — for example, an obligation to ensure that Engineer B's scope of work was defined broadly enough to permit complete and objective reporting — or does the ethical burden fall entirely on Engineer B as the licensed professional?
Was it ethical for Engineer B not to communicate with any representatives of Engineer A about the project?
Does the Faithful Agent Obligation — which requires Engineer B to serve the municipality's litigation interests — conflict with the Completeness and Non-Selectivity Obligation, which requires Engineer B to report all material findings including those favorable to Engineer A, and if so, how should a retained litigation expert resolve that tension?
Does the Scope-of-Work Limitation as Incomplete Ethical Defense conflict with the Available Evidence Consultation Obligation — that is, can a contractually defined scope of work ever legitimately excuse an engineer from consulting material evidence that is readily available and directly relevant to the adverse conclusions being drawn?
Does the Technical Facts Non-Adversarial Character principle — which holds that factual findings such as wave equation results and equipment failure are not legitimately subject to adversarial framing — conflict with the Adversarial Engagement Objectivity Obligation in a way that reveals an internal tension in how litigation engineering is practiced, and does the NSPE Code resolve that tension in favor of objective disclosure over client advocacy?
Does the Omission Materiality Threshold principle — which requires disclosure only when an omission crosses a threshold of significance — conflict with the Completeness Violated By Engineer B Omitting Equipment Failure principle in a way that raises the question of who bears the burden of determining materiality: the reporting engineer, the client, or the profession's objective standard?
Was it ethical for Engineer B not to communicate with the contractor’s supervisor and workers who were on the job during construction?
From a deontological perspective, did Engineer B violate a categorical duty of completeness and non-selectivity by omitting the failed dynamic test equipment from his report, regardless of whether that omission ultimately affected the structural conclusions about the 19 piles?
From a virtue ethics perspective, did Engineer B demonstrate the professional integrity expected of a competent and honest engineering expert when he issued contradictory post-report explanations — first claiming the pile driving records were outside his scope of work, then claiming he simply disbelieved them — rather than transparently accounting for his investigative choices?
From a consequentialist perspective, did Engineer B's selective omission of wave equation analysis results and pile driving refusal data produce a net harm — including reputational injury to Engineer A, distortion of the mediation record, and potential disservice to the municipality as client — that outweighed any benefit derived from the narrowly scoped report he delivered?
From a deontological perspective, did Engineer B breach a duty of due diligence by drawing adverse technical conclusions about Engineer A's pile design without first consulting available on-site representatives, contractor supervisors, and workers who possessed direct firsthand knowledge of the pile driving conditions — knowledge that could have confirmed or refuted his theories?
Was it ethical for Engineer B to issue his report without mentioning that the 19 piles questioned had, according to the driving records, met refusal?
If Engineer B had disclosed the dynamic test equipment failure in his report, would the municipality, the mediating parties, and the reviewing technical community have been able to properly weight the test pile results — and would Engineer B's adverse conclusions about the 19 piles have survived scrutiny under those conditions?
If Engineer B had consulted Engineer A's on-site representatives and the contractor's supervisors and workers before finalizing his report, would he have obtained information sufficient to either substantiate or abandon his theory that the 19 piles were inadequate — and would the report's conclusions have materially differed?
If Engineer B had applied wave equation analysis to the pile driving records and disclosed that the 19 questioned piles had been driven to essential refusal — indicating load capacity several multiples above design requirements — would the municipality's litigation position have been materially weakened, and does that potential outcome explain Engineer B's selective reporting choices?
If Engineer B had declined the engagement on the grounds that the adversarial litigation context created irreconcilable pressure to produce a client-favorable rather than objectively complete report, would that refusal have better served the public interest, the integrity of the mediation proceeding, and Engineer B's own professional standing than the selective report he ultimately issued?
Scope-of-Work Defense Invoked By Engineer B to Justify Ignoring Pile Driving Records
Engineer B's justification for omitting pile driving record analysis from report
Engineer B initially claimed that pile driving records were not reviewed because it 'was not in our scope of work,' then contradicted this by stating the records were reviewed but disbelieved — revealing that the scope limitation was invoked as a post-hoc justification for ignoring contrary evidence rather than a genuine constraint on the investigation.
A scope-of-work limitation cannot ethically justify ignoring primary records that are directly material to the report's conclusions; the contradictory explanations reveal that the scope limitation was not a genuine constraint but a rationalization for selective analysis.
Scope limitations define investigative duties but cannot authorize suppression of material findings; the contradiction in Engineer B's explanations further undermines the scope defense.
Scope-of-Work Limitation as Incomplete Ethical Defense Invoked for Engineer B Report
Omission of equipment failure and pile refusal data
Even if Engineer B's contractual scope of work defined the boundaries of his investigation, it did not authorize the omission of material technical findings — specifically equipment failure and pile refusal data — that were within his technical knowledge and observation during the test pile driving program.
The scope-of-work limitation for the test pile driving program did not constitute a complete ethical defense for Engineer B's omission of material findings already made within that program.
Scope limitations define required investigation boundaries but do not authorize suppression of findings already made; Engineer B's omissions exceeded any legitimate scope-based justification.
Technical Facts Non-Adversarial Character Invoked in Pile Driving Report Case
Test pile driving report omitting equipment failure and refusal data
The case discussion establishes that Engineer B's selective omission of material pile driving facts (equipment failure, piles driven to refusal) was ethically impermissible regardless of whether it was motivated by the adversarial context, because technical facts do not become adversarial by virtue of being generated in a litigation context.
In this context, the non-adversarial character of technical facts means that Engineer B's duty to report all material findings — including those favorable to Engineer A — was not diminished by the municipality's adversarial interest in the litigation outcome.
Technical Facts Non-Adversarial Character Principle
Facts are not adversarial, even if they may be conflicting. Adversarial interests, however, are polarizing to the effect that some facts may be preferred by one interest over the other.
The principle that facts are not adversarial overrides any client loyalty rationale for selective reporting; the municipality's litigation interest cannot transform the character of engineering facts.
Adversarial interests, however, are polarizing to the effect that some facts may be preferred by one interest over the other.
Test Pile Program Compromised Conditions
From conduct of test pile driving through issuance of Engineer B's report
The test pile driving program supervised by Engineer B
Disclosure through Engineer A's geotechnical consultant's testimony at mediation
After the 30 day set up, the driving hammer was dropped several times to start the hammer before the record of blow counts commenced.
The geotechnical consultant testified and showed that dynamic test equipment had failed during the test and that the test piles were not driven to the same depth of penetration.
Dynamic test equipment failure during testing, use of vibratory hammer not used in original driving, and pre-record hammer drops breaking pile bond
Vibratory Hammer Substitution Decision → Selective Omission in Report
Geotechnical engineering professional consensus
Accepted wave equation calculations for pile driving resistance analysis
Engineer A's geotechnical consultant (applied); Engineer B (not applied or reported)
Accepted technical methodology that, when applied to the pile driving records, would have shown the 19 disputed piles had strength several multiples over the calculated load requirements — a material finding omitted from Engineer B's report
Wave Equation Pile Analysis Methodology - Factor of Safety Evaluation
Geotechnical/structural engineering professional community
Technical methodology for evaluating pile driving adequacy including factor of safety, blow count records, and dynamic testing
Engineer A (original analysis) and Engineer B (test pile driving program supervision)
Referenced as the technical basis for Engineer A's original conclusions and Engineer B's subsequent test program; the methodology encompasses dynamic test equipment, pile driving to refusal, and factor of safety determinations that were selectively reported by Engineer B
contractor extra claim and lawsuit before mediation settlement
dynamic test equipment failure during test pile driving
hammer dropped before blow counts after 30-day set period
hammer dropped before blow counts before record of blow counts commencement
mediation before test pile driving program
municipality expert testimony (initial driving resistance failure) during mediation
municipality retaining Engineer B equals Engineer A retaining independent geotechnical consultant
original pile driving (construction) before contractor extra claim and lawsuit
original pile driving (construction) before test pile driving program
strength gain confirmation before Engineer B's concluding report
test pile driving before 30-day set period
vibratory hammer use during test pile driving