Lack Of Illinois Professional Engineer's License Goes To Weight Of Expert Testimony--Not Its Admissibility
March, 2004
In this significant decision, the Illinois Appellate Court, Second District holds that licensure under the Illinois Professional Engineering Practice Act of 1989 (“the Engineering Act”) is not required for one to render an expert opinion. Thompson v. Gordon, 2004 WL 1152503 (Ill. App. 2d Dist.). Instead, the witness need only possess sufficient experience and qualifications to assist the trier of fact. Lack of an Illinois Professional Engineer License goes to the weight of the expert’s testimony, not the expert’s competency.
Facts
Plaintiff Corrine Thompson sued defendants following a fatal motor vehicle collision in Gurnee, Illinois. Plaintiff alleged that defendants Leisch and CH2M had a duty to exercise reasonable care in designing the roadway near the accident site and that their failure to do so proximately caused her injuries and the deaths of Trevor and Amber Thompson.
Leisch and CH2M moved for summary judgment. In response, plaintiff submitted the affidavit of Andrew Ramisch, an expert opinion witness retained pursuant to Supreme Court Rule 213(f), with a curriculum vitae noting 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. Ramisch opined that CH2M failed to meet the standard of care in designing the roadway at or near the site of the accident. Leisch and CH2M moved to strike the affidavit, arguing that Ramisch was not qualified to render an opinion because he was not licensed as a professional engineer in Illinois pursuant to the Engineering Act, citing Van Breemen v. Department of Regulation, 296 Ill. App. 3d 363 (2d Dist. 1998). The trial court granted defendants’ motion but certified the following questions for permissive interlocutory appeal:
1) ”Whether the work of an engineer, unlicensed in the State of Illinois, as an Illinois Supreme Court Rule 213(f) 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 Regulation, 296 Ill. App. 3d 363 (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.”
Analysis
The Second District answered the second certified question in the negative, reversing the trial court’s order striking Ramisch’s affidavit and remanding the cause for further proceedings.
Van Breemen v. Department of Regulation Does Not Control
The second certified question posits whether Van Breemen controls the issue of a trial court striking, on motion, the affidavit of a Rule 213(f) retained engineer opinion witness who is not licensed in the State of Illinois. In Van Breemen, the Department of Professional Regulation, upon investigation and review of a brochure that advertised the services of Mr. Van Breemen as a professional engineer who performed forensic work and industrial-failure investigations, who ultimately was unable to prove to the Department’s satisfaction his licensure, issued a cease and desist order for the unlicensed practice of professional engineering. Van Breemen then brought a complaint for judicial review of that administrative decision and order; the trial court affirmed the Department’s order. In affirming the trial court’s judgment, the Second District reviewed, inter alia, the sufficiency of the Department’s findings and the validity of its conclusions only.
Van Breemen had nothing to do with whether a trial court should strike the affidavit of a retained opinion witness; Van Breemen was merely a judicial review of an administrative agency’s findings and decision that Van Breemen 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 current matter, however, presents not on judicial review of an administrative decision, but, rather, on a ruling to strike the affidavit of an expert opinion witness. Thus, the Second District concludes Van Breemen does not control and that the qualifications of the expert witness must instead meet the standards set forth by case law.
Qualifications for Expert Testimony - Licensure Not Required
The Second District cited Illinois Supreme Court precedent regarding the qualifications and admission of expert testimony, stating as follows:
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, 204 Ill. 2d at 24)
Proper expert testimony offers “knowledge and application of principles of science beyond the ken of the average juror.” Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 546 (1995), quoting Plank v. Holman, 46 Ill. 2d 465, 471 (1970).
Here, Leisch and CH2M moved to strike Ramisch’s affidavit, arguing that he was not qualified to render a professional opinion because he was not licensed as a professional engineer pursuant to the Engineering Act. However, the record reflects that Ramisch is a civil engineer, licensed in the District of Columbia, with approximately 30 years of experience in the analysis, design, and construction of roadways. The Second District explained that licensure with the State of Illinois pursuant to the Engineering Act is not required to render an expert opinion under the Supreme Court Rules and associated case law; rather, the witness must be deemed to be an “expert,” or one who is qualified by knowledge, skill, experience, training, and/or education and will assist the trier of fact. Snelson, 204 Ill. 2d at 24; Zavala, 167 Ill. 2d at 546. Thus, the lack of an Illinois professional engineering license goes to the weight of the expert’s testimony, not their competency. Buford, 131 Ill. App. 3d at 244; Ralston v. Plogger, 132 Ill. App. 3d 90, 98-99 (1985).
Learning Points:
Thompson opens the door to shopping for out-of-state experts to provide favorable testimony in Illinois cases with professional engineering issues. Per this decision, an Illinois Professional Engineering License is not required to provide expert opinions in causes of action in Illinois. The lack of Illinois engineering licensure alone will no longer be a bar to testimony, as such merely goes to the weight of the testimony and not the expert’s competency to offer opinions. ¨
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