The Latest Chapter In "Thompson v. Gordon"
April, 2005
In Volume 4 of the 2004 CM Report of Recent Decisions, we reported that the Illinois Supreme Court had issued a supervisory order directing the Illinois Appellate Court, Second District to vacate its opinion in Thompson v. Gordon, 813 N.E.2d 241 (2d Dist. 2004)(allowing non-Illinois licensed engineer to provide expert testimony in Illinois case) and remanding for further proceedings, including consideration of a cease and desist order entered by the Illinois Department of Professional Regulation (the “Dept”) against the non-Illinois licensed engineer expert. Thompson v. Gordon, 817 N.E.2d 894 (Ill. 2004). On remand, the Second District holds that the trial court erred when it struck plaintiff's expert's affidavit solely because he was not licensed in Illinois and without analyzing whether his testimony would assist the trier of fact -- despite the Dept's issuance of a cease and desist order seeking to halt the expert's unlicensed practice of engineering.
Facts
Following a fatal motor vehicle collision in Gurnee, plaintiff sued various defendants including Jack E. Leisch & Associates, Inc. (Leisch) and CH2M Hill, Inc. (CH2M), alleging improper roadwork at or near the accident site. In November 2002, Leisch and CH2M moved for summary judgment. In response, plaintiff submitted the affidavit of Andrew Ramisch, plaintiff's Rule 213 retained expert opinion witness. Ramisch is 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 CH2M failed to meet the standard of care in designing the roadway at or near the accident site. Defendants moved to strike the affidavit because Ramisch was not licensed as a professional engineer in Illinois pursuant to the Illinois Professional Engineering Practice Act of 1989. Defendants relied on Van Breemen v. Department of Professional Regulation, 296 Ill. App. 3d 363 (2d Dist.1998), in support of their motion.
The trial court conducted a hearing and ultimately granted defendants' motion to strike. The trial court denied plaintiff's motion to reconsider but granted her subsequent motion to certify two questions for interlocutory appeal pursuant to Supreme Court Rule 308, including the following:
Whether Van Breemen v. Department of Professional Regulation… 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.
On appeal, defendants sought to supplement their petition for rehearing, arguing that the court should reconsider the certified questions because the Dept had issued a rule to show cause against Ramisch in June 2004. The Second District denied defendants' motion and their petition for rehearing. Defendants then petitioned for leave to appeal to the Illinois Supreme Court.
In a supervisory order of November 24, 2004, the Illinois Supreme Court denied defendants' petition for leave to appeal, but ordered the appellate court to vacate its decision and reconsider its judgment in light of new evidence. See Thompson v. Gordon, 212 Ill. 2d at 555-56. The Supreme Court directed the appellate court to permit defendants to file a certified copy of the Dept's September 2004 cease and desist order against Ramisch.
Analysis
The second certified question asked whether Van Breemen 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. The Second District answered this question in the negative, noting that Van Breemen addressed the propriety of the Dept's entry of a cease and desist order against a non-Illinois engineer expert to halt his unlicensed practice of professional engineering and the trial court's approval of same. The Second District affirmed Van Breemen after reviewing the sufficiency of the Dept's findings and the validity of its conclusions. Van Breemen has nothing to do with whether a trial court should strike the affidavit of a retained opinion witness as Van Breemen did not reflect on plaintiff's competency as an engineer or 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.
The present case, by contrast, concerns the propriety of the trial court's ruling striking the affidavit of an expert opinion witness in a civil action. The Dept's cease and desist order is relevant evidence but is not binding on the trial court in considering whether to allow Ramisch to testify as an expert witness, or on the appellate court in determining whether the trial court properly ruled on defendants' motion to strike. Declining “to ascribe a binding philosophy on the trial court in determining whether it should strike an affidavit of a proposed expert witness in a civil case” the Second District determined that Van Breemen does not control the issue of whether a trial court must strike, on motion, the affidavit of a Rule 213(f) retained opinion witness where the opinion witness is not licensed in the State of Illinois. 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.
The Second District explained:
the trial court's gatekeeping function is to determine whether an individual is qualified to be an expert, not merely by determining whether that individual took an exam and can display a piece of paper showing a passing mark, but by reviewing the individual's credentials, experience, and knowledge of the subject matter. The trial court's function is also to determine whether that expert's testimony would assist the trier of fact. The Appellate Court's function is to determine whether the trial court abused its discretion.
The record here did not show that the trial court considered whether Ramisch was qualified based on his knowledge, skill, experience, training, or education, or whether the proffered testimony would assist the trial court in understanding the evidence. The trial court's decision to strike Ramisch's affidavit based solely on the fact that he lacked an Illinois license reflects the trial court's failure to recognize the legal principles involved in determining whether Ramisch's testimony would assist the trier of fact or offer “'knowledge and application of principles of science beyond the ken of the average juror.'” The Second District accordingly concluded that the trial court abused its discretion when it granted defendants' motion to strike Ramisch's affidavit on the basis that he lacked an Illinois license to practice professional engineering and reversed and remanded for further proceedings.
Learning Point:
A non-Illinois licensed engineer may offer expert testimony in an Illinois case provided he or she is otherwise qualified to offer expert engineering testimony and such testimony would assist the trier of fact.•
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