Ruling Gives Guidance on Licensing of Expert Witness

Two people died and another was injured in a motor-vehicle collision in 1998 in north suburban Gurnee, allegedly as a result of improper road work at or near the accident site.

The injury victim brought suit on her behalf and as administrator of th estates against two defendants. She alleged that they failed to exercise reasonable care in the design of the roadway, and that this failure proximately caused her injuries and the deaths of her relatives.

In response to defendants’ motion for summary judgment, the plaintiff submitted an affidavit from an expert witness who was a civil engineer with 30 years of experience in the analysis, design and construction of roadways. He was a licensed engineer in the District of Columbia. Defendants asked the trial court to strike his affidavit, arguing that he was not qualified to render a professional opinion because he was not licensed in Illinois.

The case went up on an interlocutory appeal on the question of whether the engineer should be allowed to submit the affidavit of a Rule 213(f) retained opinion witness who is not licensed in this state. Thompson v. Gordon, Ill.App.3d (No. 2-03-1322, decided May 21, 2004). The court on appeal refused to act in an administrative capacity to determine whether the opinion witness constituted the unlicenced practice of professional engineering under the Engineering Act, leaving that to the Department of Professional Regulation. The court did, however, reverse and remand the case on the issue of whether the experts’ affidavit was admissible.

On this point, the court held that "Licensure with the State of Illinois pursuant to the Engineering Act is not required to render an expert opinion; rather, the witness must be deemed to be an ‘expert,’ or have the experience and qualifications to assist the trier of fact." Id. The court found that the lack of a license in this state goes to the weight of the testimony, not its competency. Keep in mind that the legislature has dictated that the rule "is to be liberally construed to do substantial justice between or among the parties." Illinois Supreme Court Rule 213(k).

Defense counsel throughout the state repeatedly try to disqualify plaintiffs’ experts based upon their lack of expertise, education or ability. The new twist to this continuing struggle is apparent in the Thompson case.

Through cross examination, opposing counsel can attempt to discredit a witness’ testimony, but the lack of a license is a particular state should not disqualify a witness as a matter of law, as the Thompson court held. Disqualifying an expert merely because he or she is not licensed to practice in Illinois would cause enormous problems, particularly for plaintiffs who often are forced to turn to experts elsewhere because of the fear of a colleague in the same jurisdiction testifying against another. Further, the best person to explain an issue may not necessarily be found within a state’s boundaries.

Generally, the issue of licensing has come up in Illinois in medical malpractice cases, established in Dolan v. Galluzzo, 77 Ill.2d 279, 285, 396 N.E.2d 13 (1979), which held that "in order to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein." The latest word on t his issue from the Illinois Supreme Court was in Sullivan v. Edward Hospital, 209 Ill.2d 100, 806 N.E.2d 645 (2004), where the court found that a physician was not qualified to testify as to the standard of care regarding the nursing profession because he was not licensed in that particular speciality. The court embraced a three-part test to admit an expert: Licensing; familiarity with the methods, procedures and treatments ordinarily observed in the community; and the discretionary requirement of competency. Id., at 655.

I wrote about this significant case earlier this year ("Major medical ruling has impact on cases, ethics," Chicago Lawyer, March.) Thompson deals with just the licensing part of the tripartite test and holds that the expert’s license need not be from a particular jurisdiction in order to testify. Court in other jurisdictions specifically have held that prior to qualifying someone as an expert witness, "specialized degrees, licenses or publications in their field, while all commendable, are not required to be possessed by every witness acting as an expert." Plywood Property Associates v. National Flood Insurance Program, 928 F.Supp. 500 (D.N.J.1996) [Emphasis added]. Nevada courts have that the issue is not one of licensure but of the expert’s special knowledge, skill, experience, training or education in the area. Wright v Las Vegas Hacienda, 720 P.2d 696, 697 (Nev.1986).

Certainly experts are a critical part of civil litigation, often serving as a primary source of information for the jury, assisting the trier of fact to understand the evidence or determine a fact in issue. Generally, they are expected to possess specialized knowledge while at the same time maintain the integrity of the judicial process. As lawyers, we are dependent upon them at trial to fulfill a vital function. Requiring a license from the state of Illinois would place an unnecessary burden on the parties and would not fulfill the goals of the civil justice system.

In 1993, the U.S. Supreme Court sparked a revolution in the law of expert opinion testimony when it decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Under Daubert, courts "must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Courts interpreting Daubert often examine the methodology behind the expert’s conclusions, which can be a difficult and controversial task, particularly as new areas of science and technology are being developed. Illinois courts, on the other hand, continue to embrace the teachings of Frye v. United States, 293 F.2d 1013 (D.C.App. 1923), which held that if the evidence is generally accepted in the expert’s community, it is admissible, Snelson v. Kamm, 204 Ill.2d 1,787 N.E.2d 796 (2003). In other words, Frye appears to focus on the qualifications of the expert and relies upon the sound notion that those educated in a particular field have risen to the top to pass their knowledge. Jurors then are capable of sifting the wheat from the chaff.

Certainly we are caught in the age of experts; from fixing our care to predicting the weather, from appraising artwork to analyzing tire failures. The issue really becomes one of knowledge, training, education and reliability. In Thompson, it was a matter of common sense, which the court wisely chose to follow.