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.

¹Thompson v. Gordon, 851 N.E.2d 1231 (Ill. 2006)

²Corcoran v. Sanner, 854 P.2d 1376 (Colo. App. 1993).

³State v. Northborough Center Inc., 987 S.W.2d 187 (Tex. App. 1999).

⁴Id.

⁵Davis v. American Jet Leasing Inc., 864 F.2d 612 (8th Cir. 1988).

⁶Hayes v. United States, 367 F.2d 216 (10th Cir. 1966).

© 2007 Barry Zalma, Esq., CFE

Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.