Unlicensed Engineer Can Testify In Illinois (But Could Lose License)
December, 2006
by Dennis D. Fitzpatrick and Erin E. Pellegrino
In Thompson v. Gordon, 2006 Ill. LEXIS 1083 (June 2, 2006) the court faced the issue of whether a civil engineer must be licensed in Illinois pursuant to the Professional Engineering Practice Act of 1989 (“Engineering Act”) in order to testify as an Illinois Supreme Court Rule 213 retained opinion witness in an Illinois civil action. The Supreme Court held that licensure with the State of Illinois pursuant to the Engineering Act was not a mandatory prerequisite to render an expert opinion in Illinois.
Facts and Procedural History
On November 27, 1998, Kristy Gordon was driving eastbound on State Route 132 in Gurnee, Illinois. She swerved to avoid another vehicle, and her vehicle then crossed the raised median and collided with a westbound vehicle driven by Trevor Thompson. Corrine and Amber Thompson were passengers in that vehicle and Trevor Thompson and Amber Thompson died as a result of the collision. Corrine Thompson filed suit against Kristy Gordon and various other defendants, including Jack E. Leisch & Associates, Inc. (“Leisch”) and CH2M Hill, Inc. (“CH2M”). Thompson alleged that Leisch and CH2M were negligent in failing to provide a median barrier analysis in their design proposal for improvements to the Route 132/I-94 interchange, failing to consider the necessity of cross over protection on the bridge deck and failing to design a barrier median to separate roadway traffic at the Route 132/R-94 interchange.
Leisch and CH2M filed a Motion for Summary Judgment arguing that the facts did not give rise to any duty owed by them to the plaintiff because the work contracted for by the defendants did not require median barrier analysis or design as claimed by the plaintiff and the design work did not encompass the area of the accident. The plaintiff filed her response to the defendant’s Motion for Summary Judgment, including the affidavit of Andy Ramisch, the plaintiff’s Supreme Court Rule 213 expert witness. In his affidavit, Ramisch stated that he was a civil engineer and had been actively involved in the analysis, design and construction of roadways, including highways, for over 30 years. His opinion was that the defendants failed to meet the ordinary standard of care, including failing to design a median barrier over the bridge of Route 132. According to Ramisch’s resume, he received his Bachelor of Science in Civil Engineering in 1968, Master of Science in Civil Engineering in 1974, and was licensed as a professional engineer in the District of Columbia.
The defendants filed a Motion to Strike the affidavit on the ground that Ramisch was not qualified to render professional engineering services, including forensic engineering services, in the State of Illinois, and that Ramisch was in violation of the Engineering Act. The trial court granted the defendants’ Motion to Strike, holding that unless an engineer is licensed in the State of Illinois, the engineer cannot participate as an expert witness in any pending litigation in Illinois because such participation would constitute the practice of professional engineering without license in violation of the Engineering Act and under Van Breemen v. Department of Professional Regulation, 296 Ill.App.3d 694 N.E.2d 688 (1998).
The trial court denied the plaintiff’s Motion to Reconsider but granted the plaintiff’s Motion for Interlocutory Appeal, certifying two questions for 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 Il.App.3d 694 N.E.2d 688 (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 where the opinion witness is not licensed in Illinois.
The Appellate Court declined to answer the first certified question, holding the initial determination of what constitutes the unlicensed practice of engineering in Illinois is relegated to the Illinois Department of Financial and Professional Regulation. With regard to the second question, the Appellate Court held that Van Breemen did not control and an engineer could testify in Illinois without an Illinois license as a Rule 213 retained opinion witness, thereby reversing the trial court’s order striking Ramisch’s affidavit and remanding the case to the trial court for further proceedings.
The defendants then filed a Petition for Rehearing and moved for leave to supplement their position for rehearing with a copy of a rule to show cause issued to Ramisch by the Illinois Department of Financial and Professional Regulation. The rule to show cause directed Ramisch to show cause why the Department should not issue an order to cease and desist from the unlicensed practice of professional engineering, including providing consultation and an evaluation of an engineering system and often to provide forensic engineering services. The Appellate Court denied the motion to supplement the position for rehearing.
The defendants then filed a petition for leave to appeal to the Illinois Supreme Court. While the defendants’ Petition for Leave to Appeal was still pending, the Department issued a cease and desist order against Ramisch and his corporation barring him from testifying as a professional engineer without an Illinois license. The cease and desist order found that Ramisch was not licensed in Illinois but was engaged in the practice of professional engineering in the State of Illinois for which a normal license is required.
Thereafter, the Supreme Court denied defendant’s Petition for Leave to Appeal but issued a supervisory order directing the Appellate Court to vacate its judgment to permit defendants to file a certified copy of the cease and desist order entered by the Department against Ramisch and to reconsider its judgment in light of the order. Pursuant to the Supreme Court’s supervisory order, the Appellate Court vacated its prior opinion and filed a new opinion, once again declining to answer the first certified question. With regard to the second certified question, the Appellate Court again held that the Van Breemen decision did not control the issue of whether the trial court should strike the affidavit or retain the opinion witness. The Court further held that the Department’s cease and desist order did not alter its analysis or decision, rejecting the defendant’s suggestion that the cease and desist order should control the decisions of the trial and Appellate Courts. Though the Appellate Court held that the cease and desist order was relevant evidence, it found that it was not binding on the trial court in considering whether to allow Ramisch to testify as an expert witness. The Appellate Court held that Ramisch’s lack of an Illinois license went to the weight of this testimony, not his competency as an expert witness and reversed the circuit court’s order striking Ramisch’s affidavit and remanded the cause for further proceedings. The Supreme Court allowed the defendant’s petition for leave to appeal.
Holdings
The Supreme Court noted that the Appellate Court was correct in declining to address the first certified question, and that the first certified question was not before the Supreme Court.
The Court found that the Department’s finding that Ramisch violated the Engineering Act for practicing engineering without an Illinois license was not dispositive of the issue before the court. Rather, the issue before the court was whether licensure was a prerequisite to testifying as an expert witness in a civil case and whether the Van Breemen decision controlled that issue.
The Court found that the Van Breemen decision did not control the issue of whether a trial court should strike the affidavit of a Rule 213 retained opinion witness not licensed in the State of Illinois, noting that Van Breemen was inapposite to the issue concerning the authority of the trial court to determine, to what extent, and under what circumstances it should not allow an expert to testify.
The Court found that licensure with the State of Illinois pursuant to the Engineering Act was not a mandatory prerequisite to render an expert opinion in Illinois. While licensing may be a factor to consider in determining whether an engineer is qualified to testify as an expert witness, the Court did not require an engineering license as a prerequisite to testifying. Relevant considerations in determining whether Ramisch could testify as an expert included his knowledge, skill, experience, training and education; whether that knowledge, experience, training and education afforded Ramisch the experience beyond that of an average citizen, and whether Ramisch’s testimony would aide the trier of fact. Importantly, the Court noted that whether Ramisch may be committing a criminal act by testifying in the case was a separate issue to be decided in a separate proceeding.
Learning Point
While the issue of the admissibility of the testimony of an unlicensed engineer is resolved, until the Illinois Department of Financial and Professional Regulation addresses the issue once and for all, unlicensed engineers should be hesitant to testify. Moreover, counsel should be reluctant to put an unlicensed engineer on the stand as opposing counsel will be able to attack the engineer in front of the jury and courts will allow such cross examination. We will continue to monitor developments with the licensing department.
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