Use Licensed Experts in Claims Litigation
August 2007
Concluding that a trial court abused its discretion
by granting a motion to strike an expert's affidavit because he was not licensed
in Illinois to practice forensic engineering, the Illinois Supreme Court sent
the case back to the trial court.1 The appellate court held that the trial court abused its discretion in striking
the expert's affidavit solely on the basis that he lacked an Illinois license
to practice engineering.
by Barry
Zalma
Barry Zalma Inc.
The appellate court stated that the trial court should consider his lack
of an Illinois license, as well as whether he was qualified as an expert based
on his knowledge, skill, experience, training, and education.
Recognizing that the expert's proffered testimony would assist the trial
court in understanding the evidence, and contrary to defendants' dire predictions,
it was seen as entirely possible that the trial court would still find the expert
not qualified to testify in an Illinois civil trial concerning engineering practices.
It is also possible that the expert, aware that he is subject to criminal penalties
for violating the Department's cease and desist order, will choose not to testify
in this case.
The expert will probably refuse to act as an expert witness without first
obtaining immunity from criminal prosecution. Since such immunity is usually
not available anywhere to an expert testifying in a civil case, the testimony
of experts in Illinois is effectively limited to those who are licensed by the
state as forensic engineers or other professions that require a license. Litigants
and their counsel, in Illinois, will probably be deprived of the best available
expert to help them prove their case.
This decision will chill the use of out-of-state experts in construction
defect suits. If adopted nationwide, it will limit the availability of experts
and cause most to avoid acting as litigation experts for fear of criminal prosecution.
No expert will be willing to face criminal prosecution because he or she
took a fee to testify to an opinion in Illinois or any other state that follows
the same rule. Counsel and their experts should seriously consider local statutes
and the potential criminal penalties that can be imposed for testifying as an
expert without a license issued by a state before agreeing to testify.
Contrary Jurisdictions
In Colorado, on the other hand, since 1993 a professional design “expert”
cannot be disqualified even though unlicensed, as long as the expert possesses
sufficient familiarity with the proper standard of care.2 The court concluded:
We reject plaintiff's contention that expert witnesses are disqualified from
testifying in Colorado merely because they are not licensed here or do not
perform their services here.
In Texas the statutes are more forgiving and allow an unlicensed expert to
testify at trial. The Texas Engineering Practice Act, although requiring an
individual to have a license to practice engineering, does not require an individual
to be a licensed engineer when testifying or preparing exhibits to be presented
at trial. It holds:
Nothing in this Act shall be construed or applied so as to prohibit or in
any way restrict any person from giving testimony or preparing exhibits
or documents for the sole purpose of being placed in evidence before any
administrative or judicial tribunal of competent jurisdiction. [Tex. Rev.
Civ. Stat. Ann. art. 249a, § 20(h) (Vernon Supp. 1999).]
Based on the statute, an architect not licensed in Texas was allowed to testify,
if otherwise competent.3 Similarly, in New Mexico, the discretion of the trial court was upheld in allowing
a biomechanical engineer, not licensed in New Mexico, to testify.4 The Eighth Circuit allowed an expert on the subject of an aircraft maintenance
program to testify even though not licensed.5 The witness had been a licensed pilot since 1946, operator of a jet sales and
leasing company similar to that of the defendants for over 10 years, a Gates
Learjet district sales manager from 1972-1977, and had attended Gates Learjet
flight safety and maintenance seminars. The court concluded:
Although not an FAA-licensed mechanic, Johonsson had supervised the maintenance
and repair of Learjets and was familiar with the maintenance program recommended
by Gates Learjet and with defendants' aircraft inspection and maintenance
program. "An expert witness need not be an outstanding practioner in the
field nor have certificates of training in the particular subject." United States v. Rose, 731 F.2d 1337,
1346 (8th Cir.), cert. denied, 469 U.S.
931, 83 L. Ed. 2d 263, 105 S. Ct. 326 (1984).
Also, Doe v. Cutter Biological Inc., 971 F.2d
375 (9th Cir. 1992) found that an unlicensed hematologist, if otherwise qualified,
could testify. On the other hand, in Brown v. Brown,
48 F.3d 1215 (4th Cir. 1995), unlicensed medical professionals were not allowed
to testify—not because of their lack of a license but because of their admitted
lack of knowledge of the local standard of care. In the Tenth Circuit, it was
recognized that:
It is well settled that medical experts may be permitted to testify in matters
concerning which they are qualified even though they may not be licensed
to practice medicine in the jurisdiction involved. 32 C.J.S. Evidence 546(92)
pages 336-346.6
Experts Beware
The expert asked to testify in a state where he or she is not licensed on
a subject requiring licensing must research the statutes, if any, requiring
licensure of the field of practice of the expert. It is also important to determine
whether the particular jurisdiction, like Illinois, might prevent the testimony
or impose criminal penalties on the witness for testifying without a license.
Insurers, who fund most litigation in the United States, should counsel their
attorneys to avoid the use of experts not licensed to testify in those states
where a license is required.
© 2007 Barry Zalma, Esq., CFE
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