Thompson v. Gordon ( 2006 )

Docket No. 100600.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
CORINNE THOMPSON, Appellee, v. CHRISTIE GORDON et
al.
(Jack E. Leisch et al., Appellants).
Opinion filed June 2, 2006.
CHIEF JUSTICE THOMAS delivered the judgment of the
court, with opinion.
Justices Freeman, McMorrow, Fitzgerald, Kilbride, Garman,
and Karmeier concurred in the judgment and opinion.
OPINION
At issue in this case is whether a civil engineer must be
licensed in Illinois pursuant to the Professional Engineering
Practice Act of 1989 (the Engineering Act) (225 ILCS 325/1 et
seq. (West 2002)), in order to testify as an Illinois Supreme
Court Rule 213 (177 Ill. 2d R. 213) retained opinion witness in
an Illinois civil action. The circuit court of Lake County held that
an engineer must be licensed in the State of Illinois to
participate as an expert witness in litigation pending in Illinois.
The appellate court reversed. 356 Ill. App. 3d 447. For the
following reasons, we affirm the appellate court.
BACKGROUND
On November 27, 1998, Christie Gordon was driving
eastbound on State Route 132 in Gurnee, Illinois, when she
swerved to avoid another vehicle. Gordon=s vehicle then
crossed the raised median and collided with a westbound
vehicle driven by Trevor Thompson. Corinne Thompson and
Amber Thompson were passengers in that vehicle. Trevor
Thompson and Amber Thompson died as a result of the
collision. Corinne Thompson, individually and as independent
administrator of the estates of Trevor Thompson and Amber
Thompson, filed suit against defendants Christie Gordon,
Grand Avenue Properties, Inc., Gurnee Mills (MLP) Limited
Partnership, f/k/a Gurnee Mills Limited Partnership, Gurnee
Properties Associated Limited Partnership, Western
Development Corporation, Jack E. Leisch & Associates, Inc.
(Leisch), CH2M Hill, Inc. (CH2M), The Mills Corporation, The
Mills Limited Partnership, Gurnee Mills II LLC, and Gurnee
Mills LLC. Leisch and CH2M were designers of the intersection
of I-94 and Route 132 in Gurnee. Thompson alleged that
defendants Leisch and CH2M were negligent in, inter alia,
failing to provide a median barrier warrant analysis in their
design proposal for improvements to the Route 132/I-94
interchange, failing to consider the necessity of crossover
protection on the bridge deck, including a Jersey barrier, and
failing to design a barrier median to separate roadway traffic at
the Route 132/I-94 interchange.
Defendants Leisch and CH2M (hereinafter defendants) filed
a motion for summary judgment. Defendants argued that the
uncontroverted facts did not give rise to any duty owed by
defendants to plaintiff because the work contracted for by
defendants did not require median barrier analysis or design as
claimed by plaintiff, and the design work did not encompass
the area of the accident. Plaintiff filed her response to
defendants= motion for summary judgment, including the
affidavit of Andrew Ramisch, plaintiff=s Supreme Court Rule
213 (177 Ill. 2d R. 213) expert witness. Ramisch=s affidavit
stated that he was a civil engineer and had been actively
involved in the analysis, design and construction of roadways,
including highways, for over 30 years. Ramisch=s opinion was
that defendants failed to meet the ordinary standard of care,
including failing to design a Jersey median barrier over the
bridge of Route 132. Had defendants performed the
engineering work within the standard of care, it is more
probable than not that a Jersey barrier would have been
designed and constructed and would have prevented Gordon=s
vehicle from crossing into the westbound lanes of Route 132
and colliding with the Thompson vehicle. Attached to
Ramisch=s affidavit was his curriculum vitae. According to
Ramisch=s curriculum vitae, Ramisch received his Bachelor of
Science in Civil Engineering in 1968, and received his Master
of Science in Civil Engineering in 1974. Ramisch was licensed
as a professional engineer in the District of Columbia.
On January 30, 2003, defendants filed a motion to strike
Ramisch=s affidavit on the ground that Ramisch was not
qualified to render professional engineering services, including
forensic engineering services, in the State of Illinois, and that
Ramisch was in violation of the Engineering Act. Citing the
appellate court=s decision in Van Breemen v. Department of
Professional Regulation, 296 Ill. App. 3d 363 (1998),
defendants argued that because Ramisch was not licensed as
a professional engineer in Illinois, he could not give opinions in
this case. In response, plaintiff denied that Van Breemen
supported defendants= motion to strike.
Following a hearing, the trial court granted defendants=
motion to strike. In granting the motion, the trial court held that
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unless an engineer is licensed in the State of Illinois, the
engineer cannot participate as an expert witness in any
pending litigation in the State of Illinois because such
participation would constitute the practice of professional
engineering without a license in violation of section 39(b)(4) of
the Engineering Act (225 ILCS 325/39(b)(4) (West 2002)) and
Van Breemen. Plaintiff then filed a motion to reconsider,
submitting that the trial court had erred in its construction of the
Engineering Act. The trial court denied plaintiff=s motion to
reconsider, but granted plaintiff=s subsequently filed motion for
interlocutory appeal pursuant to Supreme Court Rule 308 (155
Ill. 2d R. 308). The trial court certified two questions for
interlocutory appeal:
A1. Whether the work of an engineer, unlicensed in
the State of Illinois, as an Illinois Supreme Court Rule
213(f) retained opinion witness in a litigated matter in
the State of Illinois, constitutes the unlicensed practice
of professional engineering under the Illinois
Professional Engineering Act (225 ILCS 325/1 (1992));
and
2. Whether Van Breemen v. Department of
Regulation, 296 Ill. App. 3d 363, 694 N.E.2d 688 (2nd
Dist. 1998) controls the issue of whether a trial court
strikes, on motion, the affidavit of an Illinois Supreme
Court Rule 213(f) retained opinion witness, retained in a
litigated matter in the State of Illinois, where the opinion
witness is not licensed in the State of Illinois.@
The appellate court granted plaintiff=s application for leave
to appeal. On appeal, the appellate court declined to answer
the first certified question, holding that the initial determination
of what constitutes the unlicensed practice of engineering in
Illinois is relegated to the Illinois Department of Financial and
Professional Regulation, not to the appellate court. Thompson
v Gordon, 349 Ill. App. 3d 923, 928 (2004) (Thompson I). With
regard to the second certified question, the appellate court held
that Van Breemen did not control and that an engineer could
testify in Illinois without an Illinois license as a Rule 213
retained opinion witness. Thompson I, 349 Ill. App. 3d at 929.
The appellate court therefore reversed the trial court=s order
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striking Ramisch=s affidavit and remanded to the trial court for
further proceedings. Thompson I, 349 Ill. App. 3d at 930.
Defendants then filed a petition for rehearing, and later
moved for leave to supplement their petition for rehearing with
a copy of a rule to show cause issued to Ramisch by the Illinois
Department of Financial and Professional Regulation (the
Department) on June 21, 2004. The rule to show cause
directed Ramisch to show cause why the Department should
not issue an order to cease and desist from the unlicensed
practice of professional engineering, including providing
consultation and evaluation of an engineering system and
offering to provide forensic engineering services. The appellate
court denied the motion to supplement and denied the petition
for rehearing.
Defendants then filed a petition for leave to appeal in this
court. On September 22, 2004, while defendants= petition for
leave to appeal was pending, the Department issued a cease
and desist order against Ramisch and his corporation barring
him from testifying as a professional engineer without an Illinois
license. The cease and desist order found that Ramisch was
not licensed in Illinois but was engaged in the practice of
professional engineering in the State of Illinois for which an
Illinois license is required. The cease and desist order stated
that:
A[a]n expert witness providing opinion testimony which
involves the 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 constitutes the practice of
professional engineering, in specific forensic
engineering.@
The cease and desist order further found that the Aservices
being offered and provided by [Ramisch] are the practice of
professional engineering, including specifically forensic
engineering.@
On November 24, 2004, this court denied defendants=
petition for leave to appeal, but issued a supervisory order
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directing the appellate court to vacate its judgment in the case,
to permit defendants to file a certified copy of the September
22, 2004, cease and desist order entered by the Department
against Ramisch, and to reconsider its judgment in light of the
cease and desist order. Thompson v. Gordon, 212 Ill. 2d 555
(2004) (supervisory order).
Pursuant to this court=s supervisory order, the appellate
court vacated its prior opinion and filed a new opinion. 356 Ill.
App. 3d 447 (Thompson II). The appellate court again declined
to answer the first certified question, stating that the initial
determination of what constitutes the unlicensed practice of
engineering in Illinois is relegated to the Department and not to
the appellate court. 356 Ill. App. 3d at 453. With regard to the
second certified question, the appellate court again held that
the Van Breemen decision did not control the issue of whether
a trial court should strike the affidavit of a retained opinion
witness. 356 Ill. App. 3d at 456. The appellate court noted that
the issue of whether the plaintiff in Van Breemen was
competent to act as an expert was not before the reviewing
court, nor did the Van Breemen decision address that plaintiff=s
competency as an engineer. 356 Ill. App. 3d at 454. Rather,
the Van Breemen case came before the court on judicial
review of an administrative decision following the Department=s
issuance of a cease and desist order. 356 Ill. App. 3d at 454.
The appellate court further held that the Department=s cease
and desist order in this case did not alter its analysis or
decision. 356 Ill. App. 3d at 455. The appellate court rejected
defendants= suggestion that the cease and desist order should
control the decisions of the trial and appellate courts, finding
that an administrative body=s decision is not an adequate
substitute for judicial review. 356 Ill. App. 3d at 455. The
appellate court held that the cease and desist order was
relevant evidence, but was not binding on the trial court in
considering whether to allow Ramisch to testify as an expert
witness. 356 Ill. App. 3d at 456.
The Thompson II court explained that the case concerned
the trial court=s authority to admit expert testimony. 356 Ill. App.
3d at 457. The appellate court held that Ramisch=s lack of an
Illinois license went to the weight of his testimony, not his
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competency as an expert witness. 356 Ill. App. 3d at 459. The
appellate court noted that this court has established that expert
testimony is proper if the expert is qualified by knowledge, skill,
experience, training, or education, and the expert=s testimony
will assist the trier of fact in understanding the evidence. 356 Ill.
App. 3d at 457, quoting Snelson v. Kamm, 204 Ill. 2d 1, 24
(2003). The Thompson II court acknowledged that the
legislature had set out what constitutes the practice of
engineering in the Engineering Act, but held that:
AThe trial court=s gatekeeping function is to determine
whether an individual is qualified to be an expert, not
merely by determining whether that individual took an
exam and can display a piece of paper showing a
passing mark, but by reviewing the individual=s
credentials, experience, and knowledge of the subject
matter. [Citation.] The trial court=s function is also to
determine whether that expert=s testimony would assist
the trier of fact.@ 356 Ill. App. 3d at 460.
The Thompson II court then went beyond the certified
question to consider the propriety of the trial court=s underlying
order and found that the trial court had abused its discretion in
striking Ramisch=s affidavit because the trial court had based
its decision on an incorrect view of the law. 356 Ill. App. 3d at
461. The trial court failed to recognize the legal principles
concerning the admission of expert testimony when it struck
Ramisch=s affidavit on the basis that Ramisch lacked an Illinois
license. 356 Ill. App. 3d at 461. The appellate court therefore
reversed the circuit court=s order striking Ramisch=s affidavit
and remanded the cause for further proceedings. 356 Ill. App.
3d at 461-62.
This court allowed defendants= petition for leave to appeal.
177 Ill. 2d R. 315. This court also allowed the Illinois
Department of Financial and Professional RegulationBDivision
of Professional Regulation, and the Illinois Society of
Professional Engineers and American Council of Engineering
Companies of Illinois leave to file briefs as amici curiae in
support of defendants. 155 Ill. 2d R. 345.
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ANALYSIS
At the outset, we note that the appellate court was correct
in declining to address the first certified question. The first
certified question asked whether the work of an engineer
unlicensed in the State of Illinois as a Rule 213(f) retained
opinion witness in a litigated matter in the state constitutes the
unlicensed practice of engineering under the Engineering Act.
As the appellate court found, the initial determination of that
question is properly relegated to the Department.
The Department of Professional Regulation (see 225 ILCS
325/1 et seq. (West 2002)) was created by the legislature in
section 5B15 of the Civil Administrative Code of Illinois (20
ILCS 5/5B15 (West 2002)) as a department of state
government. Section 2105B75 of the Department of
Professional Regulation Law (20 ILCS 2105/2105B75 (West
2002), specifically established Adesign professionals dedicated
employees@ who Ashall be devoted exclusively to the
administration and enforcement@ of, inter alia, the Engineering
Act. The Engineering Act, in turn, provides for a
comprehensive regulation of the practice of professional
engineering, empowering 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 Engineering Act and to
take disciplinary or other actions as provided in the Engineering
Act; and to promulgate rules for the administration of the
Engineering Act (225 ILCS 325/5(a), (d), (f) (West 2002)).
Consequently, the appellate court was correct that it is within
the province of the Department and not a reviewing court to
initially determine what constitutes the unlicensed practice of
professional engineering.
Defendants then argue that, upon remand following this
court=s supervisory order, the appellate court erred in again
declining to answer the first certified question because on
remand, the Department=s cease and desist order rendered the
first certified question moot. Defendants assert that the
Department=s cease and desist order conclusively established
that Ramisch had practiced professional engineering without a
license when he testified by affidavit. Because Ramisch did not
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appeal the cease and desist order, that order is final.
Consequently, the Department=s cease and desist order settled
the first question certified by the circuit court in this case.
In Thompson II, the appellate court explained that despite
the Department=s cease and desist order finding that Ramisch
had engaged in the unlicensed practice of professional
engineering under the Engineering Act, its jurisdiction to
consider the first certified question had not been triggered
because the court=s jurisdiction could be effected only in
accordance with the Administrative Review Law (735 ILCS
5/3B101 et seq. (West 2002)). 356 Ill. App. 3d at 453. We
agree with the appellate court.
Pursuant to the Illinois Constitution of 1970, final judgments
from the circuit courts are appealable as a Amatter of right,@ but
final administrative decisions are appealable only Aas provided
by law.@ Ill. Const. 1970, art. VI, ''6, 9. The Administrative
Review Law provides that A[e]very action to review a final
administrative decision shall be commenced by the filing of a
complaint and the issuance of summons within 35 days from
the date that a copy of the decision sought to be reviewed was
served upon the party affected by the decision ***.@ 735 ILCS
5/3B103 (West 2002). Further, unless review of an
administrative decision is sought within the time and manner
provided for in the Administrative Review Law, Athe parties to
the proceeding before the administrative agency shall be
barred from obtaining judicial review of such administrative
decision.@ 735 ILCS 5/3B102 (West 2002). If administrative
review is not sought within the time allowed under the Act,
Asuch decision shall not be subject to judicial review@ under the
Act, except for the purpose of questioning the jurisdiction of the
administrative agency over the person or subject matter. 735
ILCS 5/3B102 (West 2002).
In this case, Ramisch did not seek review of the
Department=s cease and desist order. Consequently, the cease
and desist order was not subject to judicial review. We further
note that even if Ramisch had sought judicial review of the
Department=s cease and desist order, this court still would not
have jurisdiction over an appeal of that case, absent an order
consolidating such an appeal with this case, as judicial review
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of an administrative order is a separate proceeding from an
appeal in a civil case. The appellate court in Thompson II,
therefore, properly held that its jurisdiction to consider the first
certified question in light of the cease and desist order had not
been triggered. 356 Ill. App. 3d at 453. For that same reason,
we reject defendants= claim that the first certified question is
moot. The issue raised in the first certified question simply is
not before this court. In addition, because the issue raised in
the first certified question is not before this court, we need not
address the arguments of defendants and amici concerning the
Engineering Act, whether forensic engineering as set forth in
the Engineering Act includes testifying in a case, and whether
Ramisch was practicing professional engineering without a
license.
Defendants then argue that, because the Department=s
cease and desist order was a final order and conclusively
established that Ramisch cannot testify in this case without an
Illinois license, Ramisch was not qualified to testify as an
expert witness.
Defendants are correct that the cease and desist order is a
final order. Contrary to defendants= assertions, however, the
Department=s finding that Ramisch violated the Engineering Act
by practicing engineering without an Illinois license is not
dispositive of the issue before this court. The narrow issue
before this court is whether licensure as a professional
engineer is a prerequisite to testifying as an expert witness in a
civil case, and whether the Van Breemen decision controls that
issue. Because this issue concerns a question of law certified
by the circuit court pursuant to Supreme Court Rule 308, our
review is de novo. In re M.M.D., 213 Ill. 2d 105, 113 (2004).
In Van Breemen, the Department solicited from the plaintiff
a brochure advertising his services as an expert witness, so
the plaintiff sent the Department a letter and his resume. Van
Breemen, 296 Ill. App. 3d at 364. Thereafter, the Department
sent the plaintiff a rule to show cause why the Department
should not issue a cease and desist order for the plaintiff=s
unlicensed practice of professional engineering. Van Breemen,
296 Ill. App. 3d at 364. The plaintiff did not answer the rule to
show cause to the Department=s satisfaction, so the
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Department ordered the plaintiff to cease and desist from
engaging in the practice of engineering until he was licensed.
Van Breemen, 296 Ill. App. 3d at 365. The Department found
that the plaintiff was not licensed to practice as a professional
engineer in the State of Illinois and was engaged in the
practice of professional engineering as shown by his resume
and letter. Van Breemen, 296 Ill. App. 3d at 365. The circuit
court confirmed the Department=s order and the plaintiff
appealed. Van Breemen, 296 Ill. App. 3d at 365.
The appellate court affirmed the judgment of the circuit
court. The appellate court rejected the plaintiff=s claim that he
did not represent himself to be a licensed professional
engineer. Van Breemen, 296 Ill. App. 3d at 365. The appellate
court noted that A[a] person is construed to be practicing or
offering to practice professional engineering if, among other
things, he holds himself out as able to perform any service that
is recognized as professional engineering practice.@ Van
Breemen, 296 Ill. App. 3d at 366. Included in the examples of
professional engineering is forensic engineering. Van
Breemen, 296 Ill. App. 3d at 366. The appellate court
concluded that the Department did not err in finding that the
plaintiff had violated the Engineering Act, noting that the
plaintiff=s resume accentuated the plaintiff=s forensic work and
industrial failure investigations, thereby holding the plaintiff out
as able to perform many services recognized as professional
engineering practices, especially forensic engineering. Van
Breemen, 296 Ill. App. 3d at 366.
Defendants contend that Ramisch=s conduct in the present
case closely parallels Van Breemen=s conduct. In both cases,
the Department found that Ramisch and Van Breemen
practiced professional engineering without a license and
ordered both Ramisch and Van Breemen to cease and desist
from their unlicensed activities. Defendants claim that the only
difference between the two engineers is that Van Breemen
merely advertised his skills as an expert, whereas Ramisch
actually testified as an expert. Defendants assert that if Van
Breemen could not even offer his services without a license, it
follows that Ramisch cannot deliver his services without a
license.
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Although Ramisch=s conduct may closely parallel Van
Breemen=s conduct, the appellate court was correct that the
Van Breemen decision does not control the issue of whether a
trial court should strike an affidavit of a Rule 213 retained
opinion witness who is not licensed in the State of Illinois. Had
Ramisch sought judicial review of the Department=s cease and
desist order, the Van Breemen decision likely would have been
dispositive of his case. However, whether the plaintiff in Van
Breemen was qualified to act as an expert witness was not
before that court. As the appellate court observed, the issue in
this case concerns the authority of a trial court to determine
whether, to what extent, and under what circumstances it
should allow an expert to testify. 356 Ill. App. 3d at 457. With
regard to that issue, Van Breemen is inapposite.
For the same reason, we reject defendants= claim that the
decision in Miller v. Department of Professional Regulation,
276 Ill. App. 3d 133 (1995), controls this case. Miller also came
before the court for judicial review of an administrative decision
where the Department issued a cease and desist order
directing the plaintiff to refrain from engaging in the unlicensed
practice of professional engineering. Miller, 276 Ill. App. 3d at
135. Defendants contend that the Miller analysis applies to this
case and establishes that the legislature intentionally included
forensic engineering within the definition of professional
engineering when the legislature wrote the 1989 Engineering
Act. Defendants claim that Ramisch, like Miller, is bound by the
Engineering Act and must be licensed before he can engage in
and practice professional engineering in Illinois. However, like
the court in Van Breemen, the court in Miller did not address
whether the plaintiff in that case was competent to testify as a
retained expert witness. The Miller decision, therefore, has no
application to the present case.
With regard to expert testimony, 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). A person will be allowed to testify as an expert if his
experience and qualifications afford him knowledge that is not
common to laypersons, and where his testimony will aid the
trier of fact in reaching its conclusions. People v. Miller, 173 Ill.
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2d 167, 186 (1996). AThere is no predetermined formula for
how an expert acquires specialized knowledge or experience
and the expert can gain such through practical experience,
scientific study, education, training or research.@ Miller, 173 Ill.
2d at 186. Thus, A[f]ormal academic training or specific degrees
are not required to qualify a person as an expert; practical
experience in a field may serve just as well to qualify him.@ Lee
v. Chicago Transit Authority, 152 Ill. 2d 432, 459 (1992). An
expert need only have knowledge and experience beyond that
of an average citizen. Miller, 173 Ill. 2d at 186. Expert
testimony, then, is admissible Aif the proffered expert is
qualified by knowledge, skill, experience, training, or education,
and the testimony will assist the trier of fact in understanding
the evidence.@ Snelson, 204 Ill. 2d at 24.
Based upon the foregoing, we find that the appellate court
was correct in determining that licensure with the State of
Illinois pursuant to the Engineering Act is not a mandatory
prerequisite to rendering an expert opinion. Relevant
considerations in determining whether Ramisch may testify as
an expert include his knowledge, skill, experience, training and
education; whether that knowledge, skill, experience, training
and education afford Ramisch knowledge and experience
beyond that of an average citizen; and whether Ramisch=s
testimony will aid the trier of fact in reaching its conclusions. As
the appellate court found, the trial court in this case did not
address any of the preceding considerations, striking
Ramisch=s affidavit solely on the basis that Ramisch did not
have an Illinois professional engineering license. While
licensing may be a factor to consider in determining whether an
engineer is qualified to testify as an expert witness, this court
does not require an engineering license as a prerequisite to
testifying.
Defendants then argue that affirming the appellate court=s
decision in this case has the Asurprising effect of both
encouraging and condoning a criminal act.@ Defendants claim
that pursuant to the appellate court=s decision, a trial court
must consider Ramisch=s other qualifications and, if Ramisch
meets the criteria for testifying as an expert witness, the trial
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court must permit him to testify even though Ramisch will be
committing a criminal act when he testifies.
Whether Ramsich may be committing a criminal act by
testifying in this case is a separate issue to be decided in a
separate proceeding. We decline to prejudge the issue at this
time. Moreover, in arguing that the Thompson II court=s order
would be condoning and encouraging a criminal act,
defendants misconstrue the holding in this case. 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 Ramisch=s expert testimony. Rather, the
appellate court held that the trial court abused its discretion in
striking Ramisch=s affidavit solely on the basis that Ramisch
lacked an Illinois license to practice engineering. The appellate
court stated that the trial court should consider Ramisch=s lack
of an Illinois license, as well as whether Ramisch qualified as
an expert based upon his knowledge, skill, experience, training
and education, and whether Ramisch=s proffered testimony
would assist the trial court in understanding the evidence.
Contrary to defendants= dire predictions, it is entirely possible
that the trial court, after considering Ramisch=s knowledge,
skill, experience, training, education, as well as his lack of an
Illinois license, will again find that Ramisch is not qualified to
testify in an Illinois civil trial concerning engineering practices. It
is also possible that Ramisch, 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. Because the
appellate court simply remanded this cause to the trial court to
properly consider all relevant factors in deciding defendants=
motion to strike Ramisch=s affidavit, we find no error in the
appellate court=s ruling.
Defendants then argue that the appellate court decision in
People v. West, 264 Ill. App. 3d 176 (1994), supports the trial
court=s decision to strike Ramisch=s affidavit and controls this
case. In West, the defendant was convicted of arson and
aggravated arson. West, 264 Ill. App. 3d at 177. At trial, the
defendant filed a motion to disqualify the State=s expert
witness, John Walker, from testifying because Walker was not
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licensed to investigate the cause and origin of fire for monetary
gain as required by statute (225 ILCS 445/2(h)(4), 4 (West
1992)). West, 264 Ill. App. 3d at 178. The trial court denied the
defendant=s motion, noting that although it was clear that
Walker=s actions were contrary to the statute, Walker could
testify as an expert witness because a person need not be
licensed in order to qualify as an expert. West, 264 Ill. App. 3d
at 178.
The appellate court reversed, finding that the trial court had
abused its discretion in denying the defendant=s motion to
disqualify Walker. West, 264 Ill. App. 3d at 184. The appellate
court noted that the legislature had enacted a requirement for
the protection of the public that anyone who investigates the
causes and origins of fires for monetary gain must be licensed
in order to conduct such an investigation, and had set forth in
the statute the minimum requirements for licensure. West, 264
Ill. App. 3d at 184. The appellate court stated that because of
the legislation, Athe courts cannot ignore the licensing
requirement in qualifying a witness as an expert, particularly
where such conduct by the witness could subject the witness to
criminal prosecution.@ West, 264 Ill. App. 3d at 185. The
appellate court reasoned that by allowing Walker to testify, the
State and the trial court Awere permitting a continuation of a
commission of a crime that should have been enjoined.@ West,
264 Ill. App. 3d at 185.
Defendants maintain that the reasoning in West applies in
the instant case. In this case, as in West, the legislature has
enacted a requirement for the protection of the public that any
person who practices professional engineering, including
forensic engineering, must be licensed to conduct those
activities. It is clear, then, that the legislature felt that a person
practicing professional engineering must be licensed by the
state in order to ensure that the witness= opinions are given in a
qualified, unbiased and proper manner. Further, because the
legislature has provided that a person practicing as a
professional engineer without a license is guilty of a Class A
misdemeanor for a first offense and a Class 4 felony for a
second or subsequent offense (see 225 ILCS 325/39(b)(4)
(West 2002)), it is clear that if the trial court had allowed
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Ramisch=s affidavit, it would have been permitting the
continuation of a crime that should have been enjoined.
The appellate court in West properly recognized that it is
within the trial court=s discretion to determine whether a witness
is qualified as an expert. West, 264 Ill. App. 3d at 184. The
West court also correctly stated that to qualify a witness as an
expert, it must be shown that the witness= experience and
qualifications afford him knowledge that is not common to
laypersons and that the witness= testimony will aid the trier of
fact in reaching its decision. West, 264 Ill. App. 3d at 184. In
addition, the appellate court accurately held that a trial court
should consider a licensing requirement in determining whether
a witness is qualified as an expert. West, 264 Ill. App. 3d at
185. The West court erred, however, in holding that, because
Walker was not licensed, the trial court had abused its
discretion in allowing Walker to testify as an expert witness.
See West, 264 Ill. App. 3d at 184. To the extent that West may
be read as holding that licensing is a prerequisite to the
admissibility of expert testimony rather than a factor to be
weighed in considering expert qualifications, we overrule that
portion of West decision and reject defendants= argument that
West controls the disposition of this case.
Finally, defendants argue that the appellate court=s decision
in Thompson II must be reversed because the appellate court
failed to recognize that the legislature has created a special
rule for engineering testimony, identifying such testimony as
Aforensic engineering@ and requiring that a person engaging in
professional engineering be licensed in Illinois. Defendants
maintain, then, that the Engineering Act does require a person
testifying as a professional engineer to be licensed in Illinois. In
support of this argument, defendants note that the legislature
has imposed similar evidentiary requirements in other statutes,
for example, section 8B2501 of the Code of Civil Procedure
(735 ILCS 5/8B2501 (West 2002)).
Section 8B2501 of the Code of Civil Procedure is entitled
AExpert Witness Standards@ and provides that A[i]n any case in
which the standard of care applicable to a medical professional
is at issue, the court shall apply the following standards to
determine if a witness qualifies as an expert witness and can
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testify on the issue of the appropriate standard of care.@ 735
ILCS 5/8B2501 (West 2002). The statute then sets forth the
standards that the court should consider, including Awhether
the witness is licensed by any state or the District of Columbia
in the same profession as the defendant.@ 735 ILCS
5/8B2501(c) (West 2002).
Although defendants cite section 8B2501 in support of their
argument for reversal of the Thompson II court=s decision, we
find the fact that the legislature has specifically provided for
expert witness standards in medical malpractice cases weighs
in favor of affirming the appellate court=s decision in this case.
As the appellate court stated, Aif the legislature wanted to
condition any testimony by a professional on whether the
individual holds a state license, it could enact a statute setting
standards for such expert witnesses, as it has done in cases in
which the standard of care applicable to a medical professional
is at issue.@ 356 Ill. App. 3d at 460. Merely providing that an
engineer engaging in forensic engineering must be licensed in
Illinois is not sufficient to establish that a license is a
prerequisite to qualifying as an expert witness in a civil case in
Illinois.
As a final matter, we note that defendants read the
Thompson II court=s decision as erroneously finding that the
term Aforensic engineering@ does not include the act of
testifying at trial. Defendants misunderstand the appellate
court=s holding in this case. The appellate court did not find that
Aforensic engineering@ as set forth in the Engineering Act does
not include testifying in court. The appellate court did not even
address the definition of the term Aforensic engineering.@ The
appellate court simply held that licensure pursuant to the
Engineering Act is not required in order to testify as an expert
witness in a civil case. 356 Ill. App. 3d at 459. As discussed,
this finding is entirely correct based upon this court=s precedent
concerning expert testimony.
CONCLUSION
Accordingly, we find that the appellate court properly
declined to answer the first certified question in this case. With
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regard to the second certified question, the appellate court was
correct that the decision in Van Breemen does not control and
that the lack of an Illinois engineering license is not a bar to
expert testimony in a civil case. The appellate court also did
not err in going beyond the certified questions to consider the
propriety of the trial court=s underlying order striking Ramisch=s
affidavit. The trial court did abuse its discretion in granting
defendants= motion and striking Ramisch=s affidavit solely on
the basis that Ramisch was not licensed in Illinois to practice
forensic engineering. For these reasons, we affirm the
judgment of the appellate court which remanded the cause to
the circuit court for further proceedings.
Affirmed.
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