May/June 2017

Legal Beat
Expert Witness, Architecture, Hurricane Damage

BY ARTHUR SCHWARTZ, DEPUTY EXECUTIVE DIRECTOR AND GENERAL COUNSEL

Question: I was recently asked to testify as an expert witness in a court in Alabama. I am licensed in several states as a professional engineer but not licensed in Alabama. I reviewed the state’s engineering licensing statute, and I am a bit confused as to whether an Alabama professional engineer’s license is required. Can you comment? (Massachusetts)

Answer: According to the Alabama engineering licensure board, the practice of engineering in Alabama includes the offering of expert opinion in any legal proceeding in the state regarding work legally required to be performed under an Alabama engineer’s license number or seal. Opinion may be given by an engineer licensed in any jurisdiction. This supports the argument that a license is generally required for a forensic engineer to testify.

Second, the law further provides that in qualifying a witness to offer expert testimony on the practice of engineering, the court shall consider as evidence of his or her expertise whether the proposed witness holds a valid Alabama engineering license. Such qualification by the court, however, shall not be withheld from an otherwise qualified witness solely based on the failure to hold a valid Alabama license.

This second provision allows testimony by forensic engineers, even though they are not licensed. So, the act of offering an expert opinion in any legal proceeding in Alabama does not require an Alabama PE license. But this is a limited exception to which there is a major qualification. An expert who is called on to provide only a deposition or testimony with regard to engineering would not need to be licensed in Alabama. This is true only as long as the act of offering an expert opinion does not include engineering actions such as investigations, valuations, and surveys that may need to be done prior to testifying. If engineering analysis needs to be done in Alabama as part of the expert opinion, then an Alabama PE needs to be in responsible charge of that work. In other words, any engineering service performed for the preparation of the testimony would require licensure if Alabama law otherwise requires that service to be performed under the responsible charge of an Alabama licensed engineer. So, in most circumstances, forensic engineering performed for a location in Alabama will need to be performed under the responsible charge of an Alabama-licensed PE.

Question: What is a good way to distinguish between the practice of architecture and structural engineering? It seems to be a gray area in many cases. (Texas)

Answer: The answer will vary and will depend on state law. Some states take the position that there is complete overlap between engineering and architecture. Other states permit engineers to design certain types of industrial buildings such as warehouses, steel buildings, process facilities, and industrial plants. Still other states take the view that buildings intended for human occupation or habitation require the services of an architect. You should contact your state engineering licensure board to determine the scope of engineering practice in your state.

Question: I have performed the structural design for three-story apartments in hurricane-prone areas. As a structural engineer of record, I have designed the buildings in accordance with building code requirements. In the event a hurricane damages a building, what is the extent of my professional liability? (South Carolina)

Answer: As a matter of law, a professional engineer is held to the professional standard of care, meaning the care shown by a reasonably prudent engineer acting in the same location or locality during the same time period. No professional engineer is expected to guarantee a result (unless the engineer does so by agreement or contract). Therefore, as long as you act within the standards of the structural engineering profession regarding codes, standards, technical issues, specifications, etc., that are currently applicable in the area in which you practice, and your decisions and actions are consistent with those of other reasonably prudent engineers currently practicing in your area, you should be able to avoid being found professionally negligent and liable. There are no guarantees that you will not be sued or that a court could not find liability. This area of the law is constantly changing. Based on current and longstanding legal principles, however, if you adhere to the approach indicated above, you will certainly minimize the likelihood that you will be found professionally negligent and liable.