• Failure to Obtain Illinois Professional Engineer's License Not Fatal to Admissibility of Opinions
  • September 19, 2006 | Authors: W. Gregory Aimonette; Kathleen A. Johnson
  • Law Firm: Clausen Miller PC - Chicago Office
  • This matter has risen through the appellate court and made its way to the Illinois Supreme Court on June 2, 2006.  It has previously been reviewed in the CM Report and brings to a head the issue of whether an engineer testifying in Illinois is required to obtain a professional engineer’s license under the Illinois Professional Engineering Practice Act of 1989 in order to admit his/her testimony and opinions.  However, a second question as to whether the unlicensed testifying expert was in violation of the Illinois Professional Engineering Act, which is a Class A misdemeanor, and in violation of a cease and desist order, was not directly answered by the Illinois Supreme Court.  Instead, the Court, in dicta, may have indicated that such testimony was a criminal act.

    Facts

    Plaintiff Corrine Thompson sued defendants Leisch and CH2M following a fatal motor vehicle collision in Gurnee, Illinois.  Plaintiff alleged that defendants had a duty to exercise reasonable care in designing a roadway near the site and their failure to do so proximately caused the plaintiff’s injuries and deaths of Trevor and Amber Thompson.

    Defendants 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).  Ramisch was a civil engineer, licensed in the District of Columbia with approximately 30 years of experience in 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.  Defendants moved to strike the affidavit, arguing that Ramisch could not be called to render an opinion as 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 defendant’s motion with certified appellate questions.  The Second District Appellate Court only answered the issue as to whether Van Breemen v. Department of Regulation, 296 Ill. App. 3d 363 (2d Dist. 1998), controls the issue of whether a trial court must strike the affidavit of an Illinois Supreme Court Rule 213(f) retained opinion witness where the opinion witness is not licensed in the State of Illinois.  The Second District answered that certified question in the negative, reversing the trial court’s order striking the affidavit and remanding the cause for further proceedings.  The Second District refused to answer the question as to whether the work of an engineer unlicensed in the State of Illinois in reference to a 213(f) opinion constitutes unlicensed practice of engineering under the Act.

    Analysis

    The Illinois Supreme Court granted review of the following question:  Whether a civil engineer must be licensed in Illinois pursuant to the Professional Engineering Practice Act of 1989 in order to testify as an Illinois Supreme Court Rule 213 retained opinion witness in an Illinois civil action.  The Supreme Court reversed the ruling of the Circuit Court of Lake County and affirmed the appellate court holding that a civil engineer does not have to be licensed in Illinois in order to testify as an expert.

    When Cases Call For Expert Engineering Testimony Licenses Are Not Required

    It is well settled that the decision whether to admit expert testimony is within the sound discretion of the trial court.  Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003).  The court in its gatekeeper role will allow a person to testify as an expert if his/her qualifications as an expert afford knowledge that is not common to the lay person and the testimony will aid the trier of fact in reaching conclusions.  People v. Miller, 173 Ill. 2d 167, 186 (1996).  The Court recognizes that there is no predetermined formula for how an expert acquires specialized knowledge or experience, but instead the court shall look to the knowledge, skill, experience, training and education of the witness and whether the testimony will assist the trier of fact in understanding the evidence.  Snelson, 204 Ill. 2d at 24.  The lack of a license in Illinois may be considered, but only along with the other instances that demonstrate the expert’s knowledge, skill, experience, training and education.  The Court held that the engineer’s knowledge and experience must be beyond that of an average citizen and must be an aid to the trier of fact in reaching its conclusions.  The trial court’s striking the affidavit solely on the basis that the expert did not maintain an Illinois professional engineer’s license, without addressing all these considerations, was improper.

    Unanswered Question As To Whether Engineer Opining Without A License Is A Criminal Act

    Defendants argued that by not requiring the professional engineer to be licensed in Illinois, this case both encourages and condones a criminal act.  The Supreme Court stated that whether Ramisch was committing a criminal act by testifying in this case is a separate issue to be decided in a separate proceeding.  The Court noted that the appellate court did not direct the trial court to allow Ramisch to testify, nor did the appellate court hold that the trial court could not consider Ramisch’s lack of an Illinois license in determining whether to admit his expert testimony.  Rather, the appellate court held that the trial court abused its discretion in striking Ramisch’s affidavit based solely on his lack of an Illinois license to practice engineering.

    The Court did not decide whether the act of giving testimony constituted a criminal violation by engaging in “forensic engineering.”  The Department of Financial and Professional Regulation previously found administratively that the affidavit of Ramisch, an unlicensed engineer, violated the Illinois Professional Engineering Act by giving opinion testimony which the Department characterized as “forensic engineering.”  This finding was never challenged by a direct appeal and, therefore, is final.  In deciding not to address this issue, the Illinois Supreme Court has avoided making a determination as to whether a criminal act has occurred.  The Court avoids challenging the Department of Professional Regulation determination by stating that Ramisch, whether subject to criminal penalties for violating the Department cease and desist order or not, could choose not to testify.

    Learning Points:

    Thompson allows for engineering experts to provide testimony in Illinois cases without  professional engineering licenses.  The Illinois Supreme Court has determined that a license is not required to testify, but does not resolve the question of whether an out-of-state engineer testifying without an Illinois license may be in violation of the criminal portion of the Illinois Professional Engineering  Act, which is a Class A misdemeanor.  This serves to not only discourage out-of-state professional engineers from testifying, but may also open the door to cross-examination regarding this issue at trial.  It is uncertain whether this could be rectified with a motion in limine.  In order to avoid the unanswered questions created by this decision, attorneys are urged to attempt to retain engineers with Illinois licenses or who are in the process of obtaining those licenses through the different procedures offered by the Illinois Department of Professional Regulation.  Only in matters where the question of engineering is so unique that no in-state expert exists, should an attorney consider retaining an out-of-state expert while questions of criminal violations remained unanswered.