Retired Engineer Being Charged for Practicing w/o a License

[jeb6294]

Article
YouTube


Somehow, this popped up on my YouTube feed, but peaked my interest enough to look into it a little bit. Guy like to provide “expert testimony” pro bono. In this case he was representing a flooded homeowner as an expert witness. The video was produced by the group representing the guy so it is very biased.

The first thing that jumps out at me, most places it just says he’s a “retired Engineer”, but in the video he says that he’s a retired Chemical Engineer. Call me crazy, but Chemical and Civil seem to be opposite ends of the spectrum of Engineering to me.

Second, just because you’re doing it pro-bono, does presenting yourself as an expert witness cross the line of practicing without a license?

 

[Dleg]

I'm not sure, but perhaps what crossed the line into "practice of engineering" was calling himself an engineer in a court of law, and claiming the advice he was giving was engineering advice? If we accept that the main purpose of engineering licensing is to protect the safety of the public, then I would think that one should be licensed in order to provide engineering advice in a court of law, or in any other situation where the advice might influence a real-world decision.

 

[wilheldp_PE]

The legal definition of "expert" is that you know more about the topic at hand than a layperson. You do not have to be a licensed professional engineer to become an expert witness, but it is one of many certifications you can have to "prove" to the judge or jury that you are an expert. In this case, I'd imagine that pro bono is the only way this guy could get a job as an expert witness, and only for homeowners that don't know any better. An expert witness without proper qualifications can do more harm in a lawsuit than having no expert at all. For instance, if this guy gives testimony, then a real Civil PE expert on the opposing side gives contradictory testimony, it would bias the judge/jury AGAINST the side that this guy represented. All lawyers know this, and would avoid this guy like the plague.

 

[ChebyshevII PE PMP]

Shoot, I just posted a similar article. Let me see if I can get the mods to delete…

Anyway, I’m not familiar with the specific laws in NC in regards to this, but it would seem to me that a person not licensed to practice engineering wouldn’t be allowed to be an expert witness in that area, even if he did appear to have other qualifications.

 

[Tiger15]

When I first saw the video I though they meant he was speaking at local meetings that were open for public comment, not taking the stand as an expert witness.
That's pretty different.

EDIT: At 0:23 in the video, "When he sees engineering mistakes, he writes letters or speaks up at public meetings."
That's a pretty misleading statement.

 

[ChebyshevII PE PMP]

When I first saw the video I though they meant he was speaking at local meetings that were open for public comment, not taking the stand as an expert witness.
That's pretty different.

EDIT: At 0:23 in the video, "When he sees engineering mistakes, he writes letters or speaks up at public meetings."
That's a pretty misleading statement.

The video is missing a lot of context. My guess is that the court case is what NC is responding to, not the public comment sessions or letters. Seems like he was doing both.

 

[Tiger15]

Two of my college professors provided expert testimony. One had a MS and PE license, the other had a PhD and no PE license. The one without the PE said that his PhD qualified him to do so. He did say that the first part of all expert testimony is going over your qualification as an expert, so it was always clear what qualification he did and did not have.

In hindsight, I wonder if that was ok?

 

[wilheldp_PE]

Two of my college professors provided expert testimony. One had a MS and PE license, the other had a PhD and no PE license. The one without the PE said that his PhD qualified him to do so. He did say that the first part of all expert testimony is going over your qualification as an expert, so it was always clear what qualification he did and did not have.

In hindsight, I wonder if that was ok?

Yep. There are lots of expert witnesses that have PhDs and no PE. But their testimony is usually limited to the field in which they got their PhD.

 

[DoctorWho-PE]

Another article
Well this explains things a little better. I'm interested to see how this plays out.

 

[DLD PE]

My thoughts:

How is this different than a contractor saying, "I'm not an engineer, but my technical experience tells me this:....." If the engineer in the article is disclosing that he was never a licensed engineer, he's being honest and forthright about it. The client receiving the advice can take that and bring it to the attention of a licensed engineer and get their opinion on the matter.

This happens in consulting all the time. A contractor will call us and say, "I'm not an engineer, but you may want to consider the voltage drop on these pole lights", for example. I don't think they should be banned for speaking up about something that would be considered "engineering." I think the board is being a bit harsh, but maybe I'm not seeing the whole picture?

I have a bigger problem with someone who is in the IT field and brags to other people that he's a "systems engineer" when he has basically 6 months of IT training and a certification or two and that's it. He also has "systems engineer" on his LinkdIn profile. Why don't the engineer boards go after those people? And yes, I'm talking about the state of NC in everything above.

 

[jeb6294]

Ended up finding a copy of his complaint with the court. According to NC:

“Board considers that any testimony that requires engineering knowledge to adequately provide and to protect the public falls with the definition of the practice of engineering and requires a [North Carolina Professional Engineer] license.” It further says that producing “drawings, letters or [a] report” is “more clearly evidence of the practice of [engineering].”​

And a little more digging, I found out that the original case was related to some houses flooded after Hurricane Florence went through. According to the guy suing, "Autry said that he thinks the issue lies in an outflow pipe behind the neighborhood that is obstructed by debris, and the inability for that pipe to drain". Retired Engineer is the attorney's dad, so maybe he had to get his dad as an expert witness because no "real" Engineer would give him the answer they wanted to hear.

 

[jeb6294]

My thoughts:

How is this different than a contractor saying, "I'm not an engineer, but my technical experience tells me this:....." If the engineer in the article is disclosing that he was never a licensed engineer, he's being honest and forthright about it. The client receiving the advice can take that and bring it to the attention of a licensed engineer and get their opinion on the matter.

Because a contractor actually has experience in construction. This guy was a Chemical Engineer for DuPont. I'm pretty sure he wasn't doing much civil work.

Wasn't there actually a state that cracked down on companies who called themselves Environmental Engineering companies but were really just HVAC repairmen with no Engineers to be found in the company?

 

[DLD PE]

@jeb6294 that makes sense. Providing calculations and drawings is a lot more than, "Here's my opinion on the matter."

 

[DLD PE]

Because a contractor actually has experience in construction. This guy was a Chemical Engineer for DuPont. I'm pretty sure he wasn't doing much civil work.

Yes, exactly. That's definitely a problem.

 

[DLD PE]

So yeah, after digesting it all, I have to side with the NC board on this matter.

 

[bwin12]

He did say that the first part of all expert testimony is going over your qualification as an expert, so it was always clear what qualification he did and did not have.

I work for a consulting firm that provides analysis, expert testimony and litigation support on construction schedule and cost damages claims. The principal, myself and one other consultant are PE's. I am the only civil construction PE. There are 9 other consultants, 5 or so that have testified, that are not PE's but have extensive experience in the construction field as schedulers, PM's, cost engineers, etc. That all above board and common.

The above is 100% true. It's a cool process to watch the expert get set up and proceed down a path with questions from the attorney they have been retained by. Then the other side has to discredit that testimony.

Now, saying all that, engineering testimony is probably different and you are pretty much saying I have a weak case because my expert is a Dupont chemical engineer. They are either VERY low budget or idiots. The other side will tear this guys testimony apart, but if its a jury trial they heard what they said and it becomes a greedy insurance behemoth vs. smalltown homeowner (neighbor) issue. And then we are back to a scenario where this defense is either a highly calculated chessmatch or idiocy. In my experience, both happen often.

I think one of the southeast states engineering boards is cracking down on drone pilots that do "surveying" work. Again, much like this case, its all in the details. Throwing some lines in PDF writer on a drone shot to represent lot lines is much different than surveying. But these guys could represent themselves as surveyors, and that should be stopped.

 

[Reverse Polish]

My thoughts:

How is this different than a contractor saying, "I'm not an engineer, but my technical experience tells me this:....." If the engineer in the article is disclosing that he was never a licensed engineer, he's being honest and forthright about it. The client receiving the advice can take that and bring it to the attention of a licensed engineer and get their opinion on the matter.

This happens in consulting all the time. A contractor will call us and say, "I'm not an engineer, but you may want to consider the voltage drop on these pole lights", for example. I don't think they should be banned for speaking up about something that would be considered "engineering." I think the board is being a bit harsh, but maybe I'm not seeing the whole picture?

I have a bigger problem with someone who is in the IT field and brags to other people that he's a "systems engineer" when he has basically 6 months of IT training and a certification or two and that's it. He also has "systems engineer" on his LinkdIn profile. Why don't the engineer boards go after those people? And yes, I'm talking about the state of NC in everything above.

I'm not an attorney, but I have been deposed a few times, and have testified in a couple of trials. To my knowledge, there isn't anything that prevents a contractor from testifying as an expert witness, but his testimony would be limited to his professional experience. A contractor cannot testify as to engineering principles. If he did, even a barely decent attorney would engage in a Daubert challenge, which--in short--prevents an expert from testifying on the basis of "It's True Because I Said So".

There are states who are very strict about use of the term "engineer", some more than others. Some states even require that a licensed Professional Engineer report any use of the term by an unlicensed person or business. Anecdotally, I've known people who had to report businesses in Florida that used the term "engineer(ing)" in the name of their business, despite having no Professional Engineers on staff. Usually a Cease and Desist letter will be sent by the board. Make yourself familiar with the laws and rules in each state where you have licensure, and protect the title that you have earned.

 

[RBHeadge PE]

There are a handful of States have laws saying that only a PE may provide expert testimony in a court of law, at least insofar as claiming to be an engineer or engineering expert. Some liken it to "stamping". I don't know how it works in North Carolina. The NC Board must've felt secure enough in their laws and/or regs to send him a warning letter.

The fact that he claims to be doing it pro-bono is a distraction. It's a spaghetti argument that if he isn't offering services in exchange for money then he isn't practicing of engineering. But IIRC some States even have regulations about free work and undercutting services. Again not sure if that applies in NC.

Having said that, the precedent set in Järlström v. Aldridge, a.k.a. the Oregon case, means that the <airquotes> retired engineer <airquotes> will prevail in his suit.

OT: In my humble non-legal opinion Järlström was wrongly decided. Imagine if a Juris Doctor (person with a law degree) who isn't a member of the XXXX Bar then claimed to be a "lawyer" in an official government proceeding in XXXX. That will usually get the JD a nastygram from XXXX's Bar. And I can't imagine a judge condemning the Bar for doing so. But apparently if a degreed engineering lacking license, claims to be an engineer in a government proceeding and gets a nastygram then its a first amendment violation and the regs needs to be rewritten.

​

 

[Reverse Polish]

There are a handful of States have laws saying that only a PE may provide expert testimony in a court of law, at least insofar as claiming to be an engineer or engineering expert. Some liken it to "stamping". I don't know how it works in North Carolina. The NC Board must've felt secure enough in their laws and/or regs to send him a warning letter.

The fact that he claims to be doing it pro-bono is a distraction. It's a spaghetti argument that if he isn't offering services in exchange for money then he isn't practicing of engineering. But IIRC some States even have regulations about free work and undercutting services. Again not sure if that applies in NC.

Having said that, the precedent set in Järlström v. Aldridge, a.k.a. the Oregon case, means that the <airquotes> retired engineer <airquotes> will prevail in his suit.

OT: In my humble non-legal opinion Järlström was wrongly decided. Imagine if a Juris Doctor (person with a law degree) who isn't a member of the XXXX Bar then claimed to be a "lawyer" in an official government proceeding in XXXX. That will usually get the JD a nastygram from XXXX's Bar. And I can't imagine a judge condemning the Bar for doing so. But apparently if a degreed engineering lacking license, claims to be an engineer in a government proceeding and gets a nastygram then its a first amendment violation and the regs needs to be rewritten.

​

I think the appropriate question to ask here is, "Would you let a medical school graduate perform surgery on you?"

Engineering is not a democracy. The general public isn't entitled to an engineering opinion*. I'm not an attorney, but I don't know how precedent in Oregon state law has any impact on cases subject to North Carolina state law. There's not a direct comparison here.

(*The laws of your state may vary.)

 

[RBHeadge PE]

I think the appropriate question to ask here is, "Would you let a medical school graduate perform surgery on you?"

Well written analogy. I'm going to steal that for future use