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Trial Notebook: The courts, attorneys and the law |
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ILLINOIS LICENSE NOT NEEDED FOR ENGINEER TO TESTIFY AS EXPERTJune 15, 2004
Steven P.
Garmisa In 1998, the Illinois Appellate Court affirmed a cease-and-desist order that the Illinois Department of Professional Regulation issued to an out-of-state expert who, according to the department, was engaged in the unauthorized practice of engineering because he lacked an Illinois license. Applying the 1998 case, the Lake County Circuit Court struck the affidavit of an out-of-state expert retained by the plaintiff in a tort case alleging negligent design of a roadway. But the judge certified two questions for interlocutory appeal:
Granting a petition for interlocutory review, the Appellate Court declined to answer the first question, distinguished the 1998 case, but reversed the order striking the out-of-state engineer's affidavit because being licensed in Illinois is not a requirement for Rule 213 experts. Thompson v. Gordon, No. 2-03-1322 (2d Dist., May 21). "In the present case, the first question we are called upon to consider is whether the work of an engineer [Andrew Ramisch] who is retained as a Rule 213(f) opinion witness constitutes the unlicensed practice of professional engineering under the Engineering Act when the engineer is unlicensed in Illinois. We are unable to answer this first question for a number of reasons. "First, the parties do not attempt to explain how the first question involves a question of law that is governed by conflicting authority, and second, they do not explain how entertaining an immediate appeal of this question will materially advance the ultimate termination of the litigation. These insufficiencies render the first question unsuitable for our review. "Third, and perhaps most important, the initial determination of what constitutes the unlicensed practice of engineering in Illinois is relegated, not to the Appellate Court, but to the Department of Professional Regulation. "The first certified question asks whether the work of an engineer who is retained as an opinion witness constitutes the unlicensed practice of professional engineering under the Engineering Act when the engineer is unlicensed in Illinois. On our review of the Civil Administrative Code of Illinois, the Department of Professional Regulation Law, and the Engineering Act, this reviewing court does not act in an administrative capacity to make such determinations. Rather, we believe it is within the province of the Department of Professional Regulation to determine what constitutes the unlicensed practice of professional engineering under the Engineering Act. Accordingly, we decline to answer the first certified question. "The second certified question asks whether Van Breemen, 296 Ill.App.3d 363, controls the issue of whether a trial court strikes, on motion, the affidavit of a Rule 213(f) retained opinion witness who is not licensed in the State of Illinois. "In Van Breemen, the Department of Professional Regulation solicited from the plaintiff a brochure that advertised his services as an expert witness. The plaintiff responded, detailing his education and work experience, which included engineering design, product development, failure analysis and investigative procedure, and accentuating his forensic work and industrial- failure investigations. "Thereafter, the department initiated a rule to show cause against the plaintiff to cease and desist from the unlicensed practice of professional engineering. Following the receipt of the plaintiff's answer to the rule, the department found that the plaintiff had failed to answer the rule to its satisfaction, and it concluded that the plaintiff was engaged in the unlicensed practice of professional engineering. The department ordered the plaintiff to cease and desist from the unlicensed practice of professional engineering. "The plaintiff then brought a complaint for judicial review of the administrative decision, and the trial court affirmed the department's cease and desist order. In affirming the trial court's judgment, we reviewed, inter alia, the sufficiency of the department's findings and the validity of its conclusions. "The Van Breemen decision has nothing to do with the issue of whether a trial court should strike the affidavit of a retained opinion witness. The Van Breemen decision did not reflect on the plaintiff's competency as an engineer. It had nothing to do with his qualifications as a retained expert witness. The issue of whether the plaintiff in Van Breemen was competent to act as an expert was not even before the reviewing court. Rather, Van Breemen was a judicial review, following a cease and desist order, of an administrative agency's findings and decision that the plaintiff had violated provisions of the Engineering Act by holding himself out as a professional engineer and offering to perform professional engineering services, especially forensic engineering. "The present case, however, comes to this court, not on judicial review of an administrative decision, but, rather, on a ruling to strike the affidavit of an expert opinion witness. "Furthermore, Ramisch is a professional engineer -- and duly licensed -- only not in this state. Accordingly, we determine that the Van Breemen case does not control the issue of whether a trial court strikes, on motion, the affidavit of a Rule 213(f) retained opinion witness, where the opinion witness is not licensed in the State of Illinois. We therefore answer the second certified question in the negative. "In Snelson v. Kamm, 204 Ill.2d 1 (2003), our Supreme Court discussed the applicable law regarding expert witnesses, stating: 'The decision of whether to admit expert testimony is within the sound discretion of the trial court, and a ruling will not be reversed absent an abuse of that discretion. Expert testimony is admissible if the proffered expert is qualified by knowledge, skill, experience, training or education, and the testimony will assist the trier of fact in understanding the evidence.' "Expert testimony therefore is proper if the evidence offers knowledge and application of principles of science beyond the ken of the average juror. "In the present case, defendants [Jack E. Leisch & Associates and CH2M Hill] moved the trial court to strike Ramisch's affidavit, arguing that Ramisch was not qualified to render a professional opinion because he was not licensed as a professional engineer pursuant to the Engineering Act. "The record reflects that Ramisch is a civil engineer, licensed in the District of Columbia, with approximately 30 years' experience in the analysis, design and construction of roadways. Licensure with the State of Illinois pursuant to the Engineering Act is not required to render an expert opinion; rather, the witness must be deemed to be an 'expert,' or have the experience and qualifications to assist the trier of fact. The lack of an Illinois professional engineering license goes to the weight of Ramisch's testimony, not his competency. "[I]n the interests of judicial economy and reaching an equitable result, a reviewing court may go beyond the certified questions and consider the appropriateness of the order giving rise to the appeal. Here, the order giving rise to the appeal arose from the trial court's decision to grant defendants' motion to strike the affidavit of Ramisch because he lacked an Illinois professional engineering license. "We must now reverse that decision, holding that the trial court abused its discretion when it struck Ramisch's affidavit on the basis that he lacked an Illinois license. "In summary, we decline to answer the first certified question, and we answer the second certified question in the negative. Accordingly, the order of the Circuit Court of Lake County striking Ramisch's affidavit is reversed, and the cause is remanded for further proceedings." |
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Steven Garmisa is the page one, daily columnist for the Chicago Daily Law Bulletin, the leading legal newspaper in Illinois. Steve's column, Trial Notebook, is read by lawyers and judges throughout Illinois.
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