Illinois Supreme Court Vacates "Thompson"
January, 2005
In Volume 2 of the 2004 CM Report, we discussed the Illinois Appellate Court, Second District's decision in Thompson v. Gordon, 813 N.E.2d 241(2004), allowing out of state licensed engineers to provide expert opinion testimony without licensure in the State of Illinois. Specifically, Thompson held that licensure in the State of Illinois pursuant to the Professional Engineering Act is not required to render an expert opinion; rather, the witness must be deemed to be an “expert,” or to have both the experience and qualifications to assist the trier of fact in understanding the evidence.” Accordingly, the lack of an Illinois licensure only goes to the weight of the expert opinions, not the competency. The Thompson court did not answer the other certified question regarding what constitutes the unlicensed practice of engineering in Illinois because such is “within the province of the Department of Professional Regulation.”
An administrative review of plaintiff's retained expert was subsequently initiated with the Illinois Department of Professional Regulation. On September 22, 2004, a cease and desist order was entered against the expert.
In November 2004, the Illinois Supreme Court denied defendants' petition for leave to appeal but exercised its supervisory authority directing the Second District Court to (1) vacate its judgment in Thompson, (2) permit a certified copy of the cease and desist order entered by the Illinois Department of Professional Regulation against the engineer unlicensed in Illinois on September 22, 2004 to be filed and made part of the record for review, and (3) reconsider its judgment in light of the cease and desist order. Thompson v. Gordon, 817 N.E.2d 894 (Ill. 2004). The Supreme Court further directed the Second District to reconsider if it should have exercised its discretion beyond the certified questions posed and determine the propriety of the order striking the affidavit of the retained engineering expert, in light of the cease and desist order, and whether the issue is now moot.
The Second District has yet to respond. Practitioners in Illinois again face a gray area regarding forensic engineering. Thompson is gone and one must turn back to West, Miller and Van Breemen. The risk of a cease and desist order being issued by the Illinois Department of Professional Regulatory or having a retained expert barred from testifying is significant. However, no clear definition of forensic engineering exists in Illinois. Also, the cease and desist order is only applicable until the expert attains Illinois licensure. One may become licensed in Illinois by proving appropriate credentials and either taking the examination, given at certain times per year, or by application for reciprocity. Reciprocity under the Illinois Professional Engineering Act, 225 ILCS 325/1 (1992), is easily achieved for engineers licensed in others states; it requires merely paperwork and a license fee.
For a complete discussion of the Illinois Professional Engineering Act, 225 ILCS 325/1 (1992), and its applicability to private investigators and forensic engineering, specifically, retained experts in the areas of engineering providing testimony in Illinois, please see the upcoming publication by Clausen Miller attorneys Rick Strawbridge, Dawn Dollar and Greg Aimonette.
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