Curd v. Kentucky State Board of Licensure for Professional Engineers & Land Surveyors
2014 Ky. LEXIS 226
| Ky. | 2014Background
- Dispute over property boundary in Wayne County led to quiet-title action; Joseph B. Curd, Jr., a Kentucky-licensed land surveyor, testified for defendants that deed calls and distances placed the boundary across a highway.
- At trial Curd offered a deed plot based solely on deed calls (not field monumentation); the trial court ruled for the plaintiffs.
- After the trial, the Kentucky State Board of Licensure for Professional Engineers and Land Surveyors investigated and held a three-day hearing; a Hearing Officer found Curd’s testimony dishonest/misleading and that he ignored or suppressed material facts.
- The Board suspended Curd’s license for six months under KRS 322.180 and 201 KAR 18:142 provisions. Curd appealed; lower courts split on jurisdictional and vagueness issues.
- The Kentucky Supreme Court reviewed whether licensing boards may discipline expert testimony, whether absolute immunity applies to expert witnesses, separation-of-powers concerns, whether the Board’s decision was supported by substantial evidence, and whether statutes/regulations were unconstitutionally vague as applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert witnesses have absolute immunity from administrative discipline for testimony | Curd: absolute immunity should shield trial expert from disciplinary action | Board: no absolute immunity; licensing boards may discipline licensees for professional misconduct, including testimony | No absolute immunity; experts can be disciplined (Maggard consistent) |
| Whether Board’s policing of trial testimony violates separation of powers | Curd: Board’s action usurps judicial power over trial evidence and proceedings | Board: regulating licensee conduct, including courtroom testimony, is within its delegated authority and supports judicial truth-seeking | No separation-of-powers violation; Board may police licensee testimony consistent with limits |
| Whether Board’s decision was supported by substantial evidence | Curd: Board’s sanction was arbitrary and unsupported | Board: extensive hearing produced ample evidence to support suspension | Board’s decision is supported by substantial evidence on the record |
| Whether statutes/regulations used to sanction Curd are unconstitutionally vague as applied | Curd: provisions (KRS and KAR) are too vague to give fair notice when applied to expert courtroom testimony | Board: statutes/regulations are sufficiently clear; substantial-evidence review suffices | Some statutes/regulations (e.g., KRS provisions, several KAR sections) are unconstitutionally vague as applied; but 201 KAR 18:142 Section 3 (objectivity/truthfulness, include material facts) is sufficiently specific and supports discipline; case remanded to Board to reassess sanction limited to valid grounds |
Key Cases Cited
- Maggard v. Commonwealth, Bd. of Examiners of Psychology, 282 S.W.3d 301 (Ky. 2008) (rejected absolute immunity from professional-discipline for expert report/testimony)
- Deatherage v. State, Examining Bd. of Psychology, 134 Wash.2d 131 (Wash. 1997) (discusses limits and purposes of witness immunity)
- Austin v. Am. Ass’n of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001) (professional organizations may discipline members for misleading expert testimony; courts may lack technical expertise)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (U.S. 1993) (trial-court gatekeeping standard for expert testimony)
- Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995) (Kentucky adoption of Daubert framework)