Lack of Professional Engineering License Cannot be the Sole Basis to Prohibit a Civil Engineer from Testifying - Summer 2006

Lack of Professional Engineering License Cannot be the Sole Basis to Prohibit a Civil Engineer from Testifying

Summer 2006
In Thompson v. Gordon, 2006 Ill. LEXIS 1083 (June 2, 2006), the Illinois Supreme Court determined that the trial court erroneously struck the testimony of a retained expert engineer solely because he was not licensed under Illinois’ Professional Engineering Practice Act of 1989.

Relevant considerations in determining whether an engineer can testify as an expert include his/her knowledge, skill, experience, training and education; whether that knowledge, skill, experience, training and education afford the engineer knowledge and experience beyond that of an average citizen; and whether that engineer’s testimony will aid the trier or fact in reaching its conclusions. While licensing may be a factor to consider in determine whether an engineer is qualified to testify as an expert witness, Illinois courts do not require an engineering license as a prerequisite to testifying.

Thompson, in its discussion of the case, alerts the reader to a potentially devastating litigation tactic: a cease and desist order entered against non-Illinois licensed engineering professional. The court noted that responsibility for determining whether a non-licensed person engaged in the unlicensed practice of professional engineering in Illinois rests with the Department of Professional and Financial Regulation.

The Act provides for a comprehensive regulation of the practice of professional engineering. It empowers the Department to pass upon the qualifications and to conduct examinations of applicants for licensure as professional engineers; to conduct investigations and hearings regarding violations of the Act; to take disciplinary or other actions as provided in the Act; and to promulgate rules for the administration of the Act. One such disciplinary action consists of issuing cease and desist orders against engineers who are not licensed in accordance with the Act.

Cease and desist orders can prohibit an unlicensed engineer from providing opinion testimony which involves consultation on, investigation and analysis of an engineering system when such consultation, investigation and analysis requires extensive knowledge of engineering laws, formulae, materials, practice, and construction methods. That conduct has been considered “forensic engineering” and constitutes the practice of professional engineering which cannot be undertaken without a license.

If a cease and desist order is entered against an engineer, he/she faces the following penalties: a Class A misdemeanor for a first offense and a Class 4 felony for as second or subsequent offense. Those penalties should given an engineer pause before continuing with his/her forensic engineering expert testimony.

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