Illinois Appellate Court Finds Retained Expert Testimony Proper Despite Cease & Desist Order Under the Illinois Professional Engineering Practice Act
July, 2005
Introduction
In Thompson v. Gordon, 827 N.E.2d 983 (Ill. App. 2d Dist. 2005), the Illinois Appellate Court addressed the qualifications required to render an engineer an expert in his or her field. The court examined whether an engineer who is not licensed in Illinois can render expert opinion testimony in an Illinois court and also whether that engineer, in doing so, has engaged in the unauthorized practice of professional engineering. The court concluded that lack of an Illinois professional engineering license did not preclude an engineer from rendering expert testimony but declined to reach a decision on whether by acting as a retained expert, the engineer had engaged in the unauthorized practice of professional engineering.
Facts
The plaintiff initiated her cause of action against the defendants following a fatal motor vehicle collision, alleging that the defendants had a duty to exercise reasonable care in designing the roadway near the accident site and that their failure to do so proximately caused the plaintiff’s injuries and the deaths of her family members. In response to the defendants’ summary judgment motion, the plaintiff submitted the affidavit of Andrew Ramisch as her retained expert opinion witness. Ramisch was a civil engineer, licensed in the District of Columbia with approximately 30 years experience in the analysis, design and construction of roadways. In his affidavit, Ramisch opined that one of the defendants failed to meet the standard of care in designing the roadway near the site of the accident. Thereafter, two of the defendants moved the trial court to strike Ramisch’s affidavit, arguing that he was not qualified because he was not licensed as a professional engineer in Illinois pursuant to the Illinois Professional Engineering Practice Act of 1989 (“Engineering Act”) (225 ILCS 325/1 et seq. (West 2002)). The trial court granted the defendants’ motion to strike.
In September 2003, the plaintiff moved to reconsider the trial court’s decision to strike Ramisch’s affidavit, and the trial court denied the motion to reconsider but granted the plaintiff’s subsequent motion for interlocutory appeal with the following certified questions:
1. “Whether the work of an engineer, unlicensed in the State of Illinois, as a … retained opinion witness in a litigated matter in the State of Illinois, constitutes the unlicensed practice of professional engineering under the Illinois Professional Engineering Act (225 ILCS 325/1 (1992))”; and
2. “Whether Van Breemen v. Department of [Professional] Regulation, 296 Ill. App. 3d 363, 694 N.E.2d 688 (2d Dist. 1998) controls the issue of whether a trial court strikes, on motion, the affidavit of an Illinois Supreme Court Rule 213(f) retained opinion witness, retained in a litigated matter in the State of Illinois, where the opinion witness is not licensed in the State of Illinois.”
The appellate court found in its May 21, 2004 decision that the engineer’s affidavit was admissible but declined to answer whether the engineer was engaged in the unauthorized practice of professional engineering by acting as a retained expert.
On November 24, 2004, the Supreme Court of Illinois, exercising its supervisory authority, ordered the appellate court to vacate its judgment. Thompson v. Gordon, 817 N.E.2d 894 (Ill. 2004). The Supreme Court further directed the appellate court to permit the defendants-appellees to file a certified copy of the September 22, 2004, cease and desist order entered by the Illinois Department of Financial and Professional Regulation against Ramisch, to reconsider its judgment in light of the cease and desist order and any other relevant evidence or argument, and to determine whether a different result was warranted.
In response to the Supreme Court’s supervisory order, the appellate court issued its second decision on April 8, 2005. Thompson v. Gordon, 827 N.E.2d 983 (Ill. App. 2d Dist. 2005). After reconsideration, the appellate court again held that: 1) it would not reach the question of whether an engineer licensed only in the District of Columbia had engaged in the unauthorized practice in Illinois by acting as a retained expert opinion witness; 2) the lack of an Illinois professional engineering license did not preclude an engineer from rendering an expert opinion; and 3) the trial court abused its discretion in striking the engineer’s affidavit on the ground that he lacked an Illinois license.
Analysis
In declining to answer the first certified question, the appellate court found that it was not within its administrative capacity nor did it have jurisdiction to answer this question, noting that the “initial determination of what constitutes the unlicensed practice of engineering in Illinois is relegated … to the Department of Professional Regulation.” 20 ILCS 2105/2105-1 et seq. (West 2002); 225 ILCS 325/1 et seq. (West 2002). The appellate court noted that in section 2105-75, the legislature specifically established “design professionals dedicated employees,” who “shall be devoted exclusively to the administration and enforcement” of the Engineering Act, which provides for comprehensive regulation of professional engineering, setting forth educational qualifications, examination requirements, and provisions for discipline.
The second certified question asked whether Van Breemen, controls the issue of whether a trial court should grant a motion to strike the affidavit of a retained opinion witness who is not licensed in Illinois. In Van Breemen, the Department of Professional Regulation solicited from the plaintiff a brochure that advertised his services as an expert witness, and the plaintiff responded by providing his detailed education and work experience, including engineering design, product development, failure analysis, and his forensic work and industrial-failure investigations. Thereafter, the Department initiated a rule to show cause against the plaintiff and ordered him to cease and desist from the unlicensed practice of professional engineering. The plaintiff brought a complaint for judicial review of the administrative decision, and the trial court affirmed the Department’s cease and desist order. The appellate court in Thompson found that Van Breemen was inapplicable on the facts as the decision did not reflect on the plaintiff’s competency as an engineer or his qualifications to serve as a retained expert witness. Additionally, unlike Van Breemen, Thompson was not a judicial review case; thus, the appellate court did not have jurisdiction to review the merits of Ramisch’s cease and desist order. The court found that although the Department’s cease and desist order is relevant evidence of the expert’s qualifications, it is not binding on the trial court.
The defendants argued that by allowing Ramisch to testify it would likely subject him to civil penalties or criminal punishment for violation of the cease and desist order, and the trial court would essentially be “aiding and abetting the unlicensed practice of professional engineering.” Rather than counter that argument, the court chose to focus on the requisite qualifications for a testifying expert under Illinois law:
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.
Snelson v. Kamm, 787 N.E.2d 796, 809 (Ill. 2003) (internal citations omitted). Thus, expert testimony is proper if the evidence offers “knowledge and application of principles of science beyond the ken of the average juror.” Zavala v. Powermatic, Inc., 658 N.E.2d 371, 374 (Ill. 1995). The trial court’s gate-keeping function is to determine whether an individual is qualified to be an expert, not merely by establishing that the individual passed an exam and possesses a certificate, but by reviewing the individual’s credentials, experience, and knowledge of the subject matter, and also by determining whether the testimony would assist the trier of fact. The appellate court’s function is to determine whether the trial court abused its discretion.
The appellate court found that although the Department stated in its cease and desist order that “[c]ourts have held that a threshold requirement for an expert is licensure,” it cited no authority for that proposition. Further, because Ramisch possessed the requisite credentials, experience, and knowledge, he met the retained expert qualifications under Illinois law. The appellate court reasoned that the lack of an Illinois professional engineering license went to the weight of Ramisch’s testimony, not his competency to testify. The appellate court noted that if licensure were a threshold requirement, the Illinois legislature could have expressly mandated it as it had in 735 ILCS 5/8-2501 (West 2002), which established licensure and qualification standards for medical professional expert witnesses where the standard of care is at issue in medical malpractice cases. Where neither the Illinois Supreme Court nor the legislature had included licensure as a precondition for an expert’s testimony, the appellate court, likewise, declined to do so. Additionally, the appellate court found that the trial court abused its discretion in striking Ramisch’s affidavit on the basis that he lacked an Illinois license because the trial court failed to recognize the legal principles involved in determining whether the testimony would assist the trier of fact.
Current Position
When the Illinois Department of Financial and Professional Regulation - Division of Professional Regulation’s legal counsel office was contacted to comment on its current position, it indicated that specifically in light of the decision in Thompson v. Gordon, the Department had issued numerous cease and desist orders, upon the filing of a complaint by opposing counsel, against those actively engaged in forensic engineering and not licensed as a professional engineer in Illinois. It further defined forensic engineering as any situation where the report of an engineer will be produced in court or where the individual will act as a retained expert witness, testifying at trial. The Department’s position is that any forensic engineering report produced must be signed and stamped by a professional engineer licensed in Illinois under the Engineering Act.
Learning Point
The history of Thompson v. Gordon raises issues that both the attorney retaining the engineering expert and the design professional must address. When choosing an engineer to serve as a retained expert witness at trial in Illinois, the attorney must consider the rationale of the Illinois Appellate Court and any implications of exposing an engineer unlicensed in Illinois to potential civil or criminal liability under the Engineering Act. Although the engineer will not be disqualified from rendering an expert opinion in a particular case based on the lack of an Illinois license where he or she is otherwise qualified, the fear of potential liability may deter quality out-of-state expert engineers from agreeing to serve as retained experts in Illinois. Finally, there is the potential that an attorney may retain and prepare an out-of-state engineering expert, only to find that on the issuance of a cease and desist order under the Engineering Act, the engineer refuses to testify at trial. •
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