July/August 2018

Legal Beat
Qualifications for Testimony, Noncompete Agreements

BY ARTHUR SCHWARTZ, DEPUTY EXECUTIVE DIRECTOR AND GENERAL COUNSEL

Question: I am a professional engineer who regularly performs forensic engineering services related to the design and construction of residential buildings and structures. Recently, I was asked by an attorney to testify as an expert witness in a case involving allegations of negligence by a licensed architect during the renovation of a building. As a professional engineer, would it be appropriate for me to testify in a case against a licensed architect? (New Jersey)

Answer: A New Jersey court decision from February 2015 provides some guidance on this question. In that case (Garden Howe Urban Renewal Associates LLC v. HACBM Architects, Engineers, Planners LLC, N.J. Super. Ct. App. Div., Docket No. A-1144-13T2), an owner sued the architectural firm for professional malpractice, alleging, among other things, failure to provide adequate plans to construct the project. The defendant architect moved to bar the testimony of engineers and to strike their report based on their lack of qualifications to provide opinions on the standard of care for an architect. The trial court barred the engineer’s expert testimony.

On appeal, the owner argued that the trial court abused its discretion by barring all of the plaintiff’s expert reports and limiting the testimony of the plaintiff’s experts at trial. Hearing the appeal, a New Jersey intermediate appellate court reversed the trial court’s decision. The court found that the New Jersey Architectural Practice Act and the Engineering Practice Act recognize that there is an area of concurrent practice between these two disciplines—specifically, in building design. These licensing statutes provide that engineers may design certain kinds of buildings and structures, and that both architects and engineers can administer construction for purposes of determining compliance with drawings and specifications. Because the statutes allow both architects and engineers to engage in building design and construction administration, some of the claims asserted by the owner might implicate “engineering education.” Therefore, the appellate court concluded that the trial court should have considered whether some or all of the claims asserted against the defendant architect fell within those areas where the practice of architect and engineer overlap, and whether the owner’s experts had the requisite knowledge and experience to offer opinions on the standards of care that apply to architects in the performance of such services.

The appellate court rejected the summary application of the general rule that expert testimony by a licensed architect is needed to prove an architectural malpractice claim and resurrected the owner’s whole expert case by mandating that the trial court carry out a detailed examination of the professional engineers’ qualifications and the scope of their opinions before making such a drastic ruling, striking their reports and barring their testimony.

Question: I own a small engineering firm and have an established base of clients that I would like to maintain. As I hire new employees, I would like them to sign agreements that prevent them from leaving the firm in the future and then competing directly with my firm and soliciting business from the client lists that I have developed over many years. What steps should I take? (California)

Answer: Most states recognize the enforceability of “covenants not to compete” entered into by employers and employees if the length of time and scope (e.g., geographic) are reasonable. California is one state, however, that has demonstrated longstanding hostility toward such provisions. Many California employers use narrowly tailored covenants not to compete, prohibiting their former employees from soliciting customers for a relatively short period of time following termination of employment. As a caution, the California decision in Thomson v. Impaxx Inc., 7 Cal Rptr. 3d 427 (2003), held that narrowly tailored nonsolicitation covenants are unlawful restraints on trade unless their enforcement is necessary to protect trade secrets. So, it appears that in California, even mildly worded restrictions are sometimes not effective.