Thompson v. GordonThompson v. Gordon
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This matter comes before the court as an interlocutory appeal brought pursuant to
In November 2002, defendants Leisch and CH2M moved for summary judgment (see
The trial court conducted a hearing and, following the arguments of the parties, granted defendants’ motion to strike. In September 2003, plaintiff moved to reconsider the trial court‘s decision to strike Ramisch‘s affidavit. The trial court denied plaintiff‘s motion to reconsider but granted plaintiff‘s subsequent motion for interlocutory appeal pursuant to
“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“Whether Van Breemen v. Department of Regulation, 296 Ill. App. 3d 363 *** (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.”
Plaintiff timely filed an application for leave to appeal, and this court granted the application. In our prior disposition, we had addressed the questions as the trial court had certified and presented them to us, along with the record as it existed at the time the trial court certified the questions. See Thompson, 349 Ill. App. 3d 923.
In a supervisory order of November 24, 2004, the Illinois Supreme Court denied defendants’ petition for leave to appeal, but ordered this court to vacate its decision and reconsider its judgment in light of new evidence. See Thompson v. Gordon, 212 Ill. 2d at 555-56. The supreme court has directed us to permit defendants to file a certified copy of the Department‘s September 22, 2004, cease and desist order against Ramisch. The supreme court has directed us to reconsider our judgment in light of this cease and desist order, and any other relevant order or argument we permit the parties to file, to determine whether a different result or different reasoning is warranted. The supreme court has also directed us to reconsider whether we should have exercised our discretion to go beyond the certified questions posed by the trial court and determine the propriety of the order striking Ramisch‘s affidavit, in light of the cease and desist order, and to consider whether the issue is now moot. Thompson, 212 Ill. 2d at 555-56. Pursuant to our supreme court‘s directive, we allow defendants to file the Department‘s September 22, 2004, cease and desist order. The parties have also filed supplemental briefs, and we will now proceed accordingly.
This court‘s examination in an interlocutory appeal is strictly limited to the questions certified by the trial court and, as with all questions of law, is a de novo review. In re Consolidated Objections to Tax Levies of School District No. 205, 306 Ill. App. 3d 1104, 1107 (1999), citing Lanxon v. Magnus, 296 Ill. App. 3d 377, 379 (1998). Thus, our task is to answer the certified questions rather than to rule on the propriety of any underlying order. P.J.‘s Concrete Pumping Service, Inc. v. Nextel West Corp., 345 Ill. App. 3d 992, 998 (2004), citing Danner v. Norfolk & Western Ry. Co., 271 Ill. App. 3d 598, 601 (1995). In the interests of judicial economy and reaching an equitable result, however, a reviewing court may go beyond the certified questions and consider the appropriateness of the order giving rise to the appeal. P.J.‘s Concrete Pumping Service, 345 Ill. App. 3d at 998-99, citing Bright v. Dicke, 166 Ill. 2d 204, 208 (1995).
In the present case, the first question we are called upon to consider is whether the work of an engineer who is retained as a
“The practice of the regulated professions *** is hereby declared to affect the public health, safety, and welfare of the People of this State and in the public interest is subject to regulation and control by the Department of Professional Regulation.
It is further declared to be a matter of public interest and concern that standards of competency and stringent penalties for those who violate the public trust be established to protect the public from unauthorized or unqualified persons representing one of the regulated professions ***.”
20 ILCS 2105/2105--10 (West 2002).
The powers and duties of the Department include passing upon the qualifications of applicants for licenses; conducting hearings or taking other disciplinary action as authorized in any licensing act administered by the Department with regard to licenses of persons exercising the respective professions; and formulating rules and regulations for the enforcement of any act administered by the Department. See
Accordingly, the Engineering Act is a legislative enactment created under the aegises of the Department of Professional Regulation Law and the Civil Administrative Code of Illinois. See
“Subject to the provisions of this Act, the Department [of Professional Regulation] shall exercise the following functions, powers and duties:
(a) To pass upon the qualifications and conduct examinations of applicants for licensure ***.
* * *
(d) To conduct investigations and hearings regarding violations of this Act and take disciplinary or other actions as provided in this Act as a result of the proceedings.
***
(f) To promulgate rules required for the administration of this Act, including rules of professional conduct.”
225 ILCS 325/5 (West 2002).
Section 24(a) of the Engineering Act provides that the “Department shall adopt rules setting standards of professional conduct and establish appropriate penalty for
In the present case, defendants Leisch and CH2M moved the trial court to strike Ramisch‘s affidavit, based on his lack of an Illinois engineering license. The first certified question asks whether the work of an engineer who is retained as an opinion witness constitutes the unlicensed practice of professional engineering under the Engineering Act when the engineer is unlicensed in Illinois. On our review of the Civil Administrative Code of Illinois, the Department of Professional Regulation Law, and the Engineering Act, this reviewing court does not act in an administrative capacity to make such determinations. Rather, we believe it is within the province of the Department to determine what constitutes the unlicensed practice of professional engineering under the Engineering Act. Despite the Department‘s cease and desist order, wherein the Department found that Ramisch has engaged in the unlicensed practice of professional engineering under the Engineering Act, our jurisdiction to consider this question in the context of this interlocutory appeal has not been triggered, as our jurisdiction can be effected only in accordance with the Administrative Review Law (see
Defendants assert, nevertheless, that this court does have the power to determine what constitutes the unlicensed practice of engineering, and they cite People v. Johnson, 68 Ill. 2d 441 (1977), in support of their assertion. In their brief, defendants state that, in Johnson, “the Illinois Supreme Court affirmed the trial court‘s ruling that the defendant had engaged in the plumbing trade without a license.” Even a cursory reading of Johnson would not reflect that which defendants assert to have occurred. In Johnson, the defendant indeed was charged with the offense of engaging in the plumbing trade without a license. Johnson, 68 Ill. 2d at 445. However, the trial court granted the defendant‘s motion to dismiss, holding that the statutory prerequisites for the taking of the licensing examination were unconstitutional. Johnson, 68 Ill. 2d at 445-46. On appeal, the Illinois Supreme Court considered the validity of the statutory provisions and concluded that the regulations in force at the time of the offense with which the defendant was charged were invalid. Johnson, 68 Ill. 2d at 450. The Johnson court held that the charge against the defendant be dismissed, and it thus affirmed the trial court‘s judgment. Johnson, 68 Ill. 2d at 450-51. Our reading of Johnson does not alter our decision not to answer the first certified question.
The second certified question asks whether Van Breemen, 296 Ill. App. 3d 363, controls the issue of whether a trial court strikes, on motion, the affidavit of a
The Van Breemen decision has nothing to do with the issue of whether a trial court should strike the affidavit of a retained opinion witness. The Van Breemen decision did not reflect on the plaintiff‘s competency as an engineer. It had nothing to do with his qualifications as a retained expert witness. The issue of whether the plaintiff in Van Breemen was competent to act as an expert was not even before the reviewing court. Rather, Van Breemen was a judicial review, following the Department‘s issuance of a cease and desist order, of the Department‘s findings and decision that the plaintiff had violated provisions of the Engineering Act by holding himself out as a professional engineer and offering to perform professional engineering services, especially forensic engineering. See Van Breemen, 296 Ill. App. 3d at 364-66.
The present case, however, comes to this court, not on judicial review of an administrative decision, but, rather, on judicial review of a trial court‘s ruling to strike the affidavit of an expert opinion witness in a civil action. The Department‘s cease and desist order does not alter our analysis or decision. As we stated, our jurisdiction to review the merits of the Department‘s cease and desist order against Ramisch has not yet been triggered, as our jurisdiction to review the Department‘s findings and order can be effected only in accordance with the Administrative Review Law (see
The Administrative Review Law was enacted to eliminate conflicting and inadequate common-law and statutory remedies for the judicial review of administrative decisions and to substitute a single, uniform, and comprehensive remedy. Rodriguez v. Du Page County Sheriff‘s Merit Comm‘n, 328 Ill. App. 3d 899 (2002), citing Mueller v. Board of Fire & Police Commissioners, 267 Ill. App. 3d 726, 733 (1994). ” ‘The purpose of administrative review is “to make certain the agency has acted within its judicial bounds defined by law, to guard those statutory and constitutional rights guaranteed to one subject to administrative action, and to ascertain whether the record supports the order issued.” ’ [Citations.] ” City of Markham v. State & Municipal Teamsters, Chauffeurs & Helpers, Local 726, 299 Ill. App. 3d 615, 619 (1998). As we stated, following an administrative decision rendered in a particular case affecting the legal rights, duties, or privileges of a party, this court may entertain an appeal brought pursuant to the Administrative Review Law (
With these principles in mind, we recognize and have reviewed the Department‘s cease and desist order in addition to this court‘s Van Breemen decision. As we stated, the present case comes to this court on judicial review of a trial court‘s ruling in a civil action and not on administrative review. Further, the Department‘s cease and desist order is relevant evidence but not binding on the trial court in considering whether to allow Ramisch to testify as an expert witness, or on this court in determining whether the trial court properly ruled on defendants’ motion to strike. Cf. Village of Stickney, 347 Ill. App. 3d at 848. On our review of the law and evidence presented, we decline to ascribe a binding philosophy on the trial court in determining whether it should strike an affidavit of a proposed expert witness in a civil case. Accordingly, we determine that the Van Breemen case does not control the issue of whether a trial court must strike, on motion, the affidavit of a
Defendants point out that, with the Department‘s cease and desist order barring Ramisch from testifying in effect, our decision here allowing Ramisch to testify would subject him to civil penalties or criminal punishment for violating the Engineering Act. We note that, in the Department‘s cease and desist order, the Department “encourages” this court and the trial court “to not ignore the licensing requirement ***, particularly where such conduct by the witness could subject the witness to criminal prosecution and civil penalties.” Defendants argue that, by allowing Ramisch to testify, the trial court—and by implication this court—would be engaging in “aiding and abetting the unlicensed practice of professional engineering.”
We no more encourage or condone practicing professionals’ foisting themselves upon a tribunal and committing a criminal act by testifying than do we encourage or condone witnesses’ perjuring themselves on the witness stand or incriminating themselves. Yet, it happens. See People v. Harrod, 140 Ill. App. 3d 96 (1986) (finding evidence sufficient in a prosecution for perjury when the defendant, an attorney, made a false statement under oath before the attorney disciplinary commission in regard to circumstances surrounding the execution of a client‘s will); People v. Tenner, 175 Ill. 2d 372 (1997) (jury finding the defendant guilty of two counts of first-degree murder, one count of attempted first-degree murder, four counts of aggravated unlawful restraint, and one count of armed violence, following the defendant‘s testimony at trial where he testified that he prepared the ropes used to bind his victims and that he fired the shots that killed two of the victims and injured a third).
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. In Snelson v. Kamm, 204 Ill. 2d 1 (2003), our supreme court discussed the applicable law regarding expert witnesses, stating:
“The decision of whether to admit expert testimony is within the sound discretion of the trial court [citation], and a ruling will not be reversed absent an abuse of that discretion [citation]. Expert testimony is admissible if 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. [Citation.]” Snelson, 204 Ill. 2d at 24.
Expert testimony therefore is proper if the evidence offers ” ‘knowledge and application of principles of science beyond the ken of the average juror.’ ” Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 546 (1995), quoting Plank v. Holman, 46 Ill. 2d 465, 471 (1970).
In the present case, defendants Leisch and CH2M moved the trial court to strike Ramisch‘s affidavit, arguing that Ramisch was not qualified to render a professional opinion because he was not licensed as a professional engineer pursuant to the Engineering Act. The record reflects that Ramisch is a civil engineer, licensed in the District of Columbia, with approximately 30 years’ experience in the analysis, design, and construction of roadways. In its cease and desist order, the Department stated: “Courts have held that a threshold requirement for an expert is licensure,”
One case that specifically discusses licensure with respect to testifying as an expert witness is People v. West, 264 Ill. App. 3d 176 (1994). In West, the defendant owned three buildings and operated a business out of them. A fire broke out, and the defendant filed a claim against his insurance carrier, State Farm, for the loss. State Farm investigated and determined that the cause of the fire was arson. The State then charged the defendant with five counts of arson and one count of aggravated arson. The State‘s expert witness was State Farm‘s investigator, who was from Indiana and did not hold an Illinois fire investigator‘s license (
At first blush, this seems like authority supporting defendants’ position. However, we note that West was a criminal case brought by the State, and as such, liberty interests of the defendant were clearly at stake. The appellate court seemed to take issue with the State, not because of its decision to employ an unlicensed fire investigator as its expert witness, but because of its decision to hire State Farm‘s investigator as its expert witness. The appellate court reviewed the legislation, which stated, inter alia, that a person practicing as a private detective in Illinois without a license was guilty of a Class 4 felony. West, 264 Ill. App. 3d at 184. The court noted that “[t]here may be rare occasions when the State may legitimately rely upon or allow a witness to commit a felony in order to obtain evidence against a defendant, but there was no need to do so in this case where the State Fire Marshall, firemen, police, and licensed ‘private detectives’ were available.” West, 264 Ill. App. 3d at 185.
The West court specifically stated:
“The State argues that the witness was unbiased, but we find that, under the circumstances here, the witness had every motivation to find that the fire *** was an arson fire. The witness worked for a company which was hired by State Farm to investigate the fire. It was entirely in State Farm‘s best interest that the fire be deemed arson, since this would relieve it of paying a large claim loss. Further, to have defendant convicted of the arson would bolster State Farm‘s denial of the claim in a civil lawsuit, should one be brought. One could conclude that State Farm would be very happy with the work of Barker and Herbert, if it did not have to pay the fire loss. We are not suggesting bad motives by Walker or State Farm but are merely pointing out that Walker is no deus ex machina, whose believability should not be scrutinized.
We note that by our holding we are not prohibiting witnesses from testifying as experts if the experts were not engaged as ‘private detectives’ and simply were conducting tests within their field of expertise that may be used in trials.
We see nothing to indicate that the legislature intended for all chemists, engineers, physicists, and architects, or any other experts that do lab work on items that may have been involved in fires, accidents, or injuries to real or personal property, to be licensed ‘private detectives’ before they would be allowed to examine, test, and testify about the design, structure, and composition of the items. The problem in the instant case is that the expert was actually practicing or conducting the primary investigation. The licensing provision of the statute enables the State to maintain some control over who practices, how an investigation is conducted, and what the minimum requirements should be if the investigation is conducted in Illinois.” (Emphasis added.) West, 264 Ill. App. 3d at 186.
From our reading of the West opinion, given that it was a criminal case where an individual‘s liberty was at stake and the evidence was “extremely closely balanced,” (West, 264 Ill. App. 3d at 188) the State should have engaged the services of an independent and unbiased Illinois fire investigator, perhaps even licensed, rather than a fire investigator who was so clearly intertwined in conflicts of interest with the defendant. Unlike West, the instant case is a civil case with each side procuring its own expert witnesses, and the State is not a party. Further, given the West court‘s disclaimer regarding other situations, we believe our stance is in conformity with the West decision.
In accordance with West and the other aforementioned authorities, we believe 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. See Snelson, 204 Ill. 2d at 24; Zavala, 167 Ill. 2d at 546. The lack of an Illinois professional engineering license goes to the weight of Ramisch‘s testimony, not his competency. See Buford v. Chicago Housing Authority, 131 Ill. App. 3d 235, 243-44 (1985) (allowing a witness to testify as an expert concerning elevator safety despite the witness‘s lack of knowledge or experience with elevator design, maintenance, repair, installation, applicable safety codes, union requirements respecting elevator mechanics, or day-to-day practices of elevator mechanics); see also Ralston v. Plogger, 132 Ill. App. 3d 90, 98-99 (1985).
We also disagree with defendants’ claim that our decision would create an “irreconcilable anomaly.” We recognize that the legislature sets out what constitutes the practice of engineering in the statutes regarding the regulation of professions. See
As we previously stated, in the interests of judicial economy and reaching an equitable result, a reviewing court may go beyond the certified questions and consider the appropriateness of the order giving rise to the appeal. P.J.‘s Concrete Pumping Service, 345 Ill. App. 3d at 998-99, citing Bright, 166 Ill. 2d at 208. In its supervisory order, our supreme court has directed us to reconsider, in light of the Department‘s cease and desist order, the trial court‘s order granting defendants’ motion to strike Ramisch‘s affidavit and whether the issue is now moot. Given our resolution of the certified questions, the issue is not moot. Therefore, pursuant to our supreme court‘s directive, we will consider the propriety of the trial court‘s underlying order.
The decision of whether to admit expert testimony is within the sound discretion of the trial court, and a ruling will not be reversed absent an abuse of that discretion. Snelson, 204 Ill. 2d at 24; Compton v. Ubilluz, 353 Ill. App. 3d 863, 866 (2004). If the court‘s decision rests on an error of law, however, then it is clear that an abuse of discretion has occurred, as it is always an abuse of discretion to base a decision on an incorrect view of the law. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 L. Ed. 2d 359, 381-82, 110 S. Ct. 2447, 2461 (1990); see also Save the Prairie Society v. Greene Development Group, Inc., 323 Ill. App. 3d 862, 867 (2001) (stating that a trial court abuses its discretion if it ignores recognized legal principles). Here, the order giving rise to the appeal arose from the trial court‘s decision to grant defendants’ motion to strike the affidavit of Ramisch because he lacked an Illinois professional engineering license. The record reflects no indication that the trial court considered, in addition to Ramisch‘s lack of an Illinois license to practice engineering, whether he was qualified based on his knowledge, skill, experience, training, or education, or whether the proffered testimony would assist the trial court in understanding
In summary, we decline to answer the first certified question, and we answer the second certified question in the negative. Accordingly, the order of the circuit court of Lake County striking Ramisch‘s affidavit is reversed and the cause is remanded for further proceedings.
First certified question not answered; second certified question answered; order reversed and cause remanded.
BYRNE and GILLERAN JOHNSON, JJ., concur.