Federal court rules engineer CAN talk about engineering failures 1

[spsalso]

In case you were worried you might get in trouble for stating your engineering opinions:

https://www.youtube.com/watch?v=mnSjDIj3OTg

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[dik]

Just a caution... you can still get into trouble.

-----*****-----
So strange to see the singularity approaching while the entire planet is rapidly turning into a hellscape. -John Coates

-Dik

 

[FacEngrPE]

The cited youtube video.

This federal court opinion is completely reasonable. The opinion does not grant unlicensed engineers permission to apply a professional engineers stamp which certifies the work stamped conforms to the duty of care required by the licensing state. The opinion is binding only in the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION, your mileage may very. Opinion is attached, makes interesting reading.

 

[FacEngrPE]

The attachment did not stick to the to the previous post.

This matter comes before the court on the parties' cross-motions for summary judgment [DE 42, 46]. Plaintiff Wayne Nutt ("Nutt") seeks summary judgment as to his claim for a declaration that certain provisions of the North Carolina Engineering and Land Surveying Act (the "Act"), as interpreted and enforced, violate the First Amendment as applied to expert testimony.
He also seeks a permanent injunction allowing him and others similarly situated to testify on engineering matters without a license. Defendants Andrew Ritter and other members of the North Carolina Board of Examiners for Engineers and Surveyors (collectively, the "Board") disavow the notion that the Board has targeted or will target expert testimony under the Act.
Rather, the Board seeks a counter-declaration that Nutt' s expert reports submitted on behalf of a group of plaintiffs in a state lawsuit violates the Act' s prohibition against the unlicensed practice of engineering. Whereas Nutt seeks to protect engineering speech, the Board seeks to prohibit the work underlying that speech. For the following reasons, the court grants in part and denies in part Nutt' s motion and denies in toto the Board's motion. . . .

Regarding the specific action (my opinion), testifying as an expert in court. As long as Nutt does not present himself as a licensed professional engineer, the court is free to recognize him under the same rules that apply to any expert testimony, the opposing lawyers are free to challenge under the same rules.

 

[drawoh]

FacEngrPE,

We discussed this case [—] thread765-484249. Also, we discussed thread765-447750.

The comments under Steve Lehto keep referencing that Oregon engineer case. In both cases, people presented opinions, and they identified themselves as engineers. You can do math all you want. If you call yourself an engineer, the local engineer's society will get interested.

As I pointed out in discussions above, justice has seriously miscarried based on the testimony of expert witnesses who proved to be idiots. These mostly were psychologists rather than engineers, but the cases highlight the importance of the courts vetting expert witnesses.

Is he accused of doing math, or is he accused of identifying himself as an engineer?

I note as a matter of interest that even the aggressive libertarian sites do not question the title "Professional Engineer". Engineering societies are trying to capture the term "engineer". That horse escaped the barn eons ago.

--
JHG

 

[3DDave]

In the Oregon case the PE Board decided it was the math that was problematic as they determined that any calculation related to any roadway factor was an engineer's only, PE club member exclusive.

Similarly in the South Carolina case:

Opposing counsel in the Autry litigation suggested that his testimony about the fluid-flow capacity of the diverter would constitute the unauthorized practice of engineering under the relevant statutory authority.

His claim of having an engineering background was not the issue, simply stepping into their protected garden was enough.

Counsel for the Autry litigation plaintiffs (Kyle Nutt) contacted the Board about the opposing counsel's apparent accusation. Nutt then received several correspondences from the Board regarding his inability to testify in the Autry litigation without a license.

The Board sent an email, explaining that an unlicensed individual cannot publicly use the term "engineer" in their descriptive title or offer testimony likely to be perceived by the public as "engineering advice." Email from David Tuttle to Kyle Nutt (Mar. 8, 2021), DE 49-29.

The Board also provided a position statement-the focus of Nutt's claim - warning that "testimony impacting the public," including "expert witness testimony on engineering ... matters in the courtroom ... or during depositions" and testimony based on "engineering education, training or experience," requires licensing. Position Stmt., DE 1-2 at 1. The statement also indicated that expert reports are also "evidence of the practice of the profession." Id. The Board stated that it "has proceeded against unlicensed individuals ... for the unlicensed practice of engineering." Id.

The horse may have escaped but some Boards are shooting at it with howitzers and are trying to plant landmines in the open fields.

The point of a PE system is to provide a liability in the case of project failure. While exams and such seem the main guarantor of the work, the liability is what drives care and insurance companies for engineers need support to offer that coverage; a PE Board offers that assurance. I presume that is why, as a chemical engineer doing similar drainage work in his career, he did not need a PE; his company could not claim the failure of any work he did for them on their insurance. They hired and, presumably, checked his work and he would not need personal liability insurance for that job.

Most interesting to me was the proposal by the Board that they wanted to end the case Nutt brought against them by ceasing their harassment of him. The courts often dismiss cases when the plaintiff no longer has any remedy available from the court because whatever was in play is no longer in play, aka, moot. I would assume it's in such cases as a suit for back-pay where the defendant pays up before the trial. The Court seemed to feel the Board would again harass Nutt, et al, for any future efforts.

The Board believes it must protect the public from incompetent engineers, dangerous public works and systems, and engineering misrepresentations.

Which is hilarious as it was a PE who designed the system that was causing problems for the original plaintiffs in the stormwater case Nutt was testifying about and for which his calculations were in agreement with the observed result.

For the foregoing reasons, the court GRANTS in part and DENIES in part Nutt's motion for summary judgment [DE 46]. The court DENIES the Board's motion for summary judgment [DE 42]. The court will issue a judgment in conformance with this opinion and order.

I presume this means that his work was held protected under the First Amendment; I am not clear about the permanent injunction that Nutt sought. I don't understand why the opinion doesn't clearly state what "part" is being denied for Nutt. Reasons, no doubt.

 

[SWComposites]

Idiocy.
What is some Board going to do, tell experts in the aerospace industry (none of which likely have PE’s) that we can’t testify in a public NTSB or NASA accident investigation hearing?? Riiiight.

 

[IRstuff]

Note that in the Oregon case, Järlström specifically and intentionally baited the PE board by repeatedly identifying himself an engineer when challenging a specific traffic light timing.

TTFN (ta ta for now)
I can do absolutely anything. I'm an expert!

https://www.youtube.com/watch?v=BKorP55Aqvg

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[3DDave]

Apparently Järlström pressed in that direction after the state and the Board refused to consider his discovery of the error in the traffic formula, specifically the yellow light formula. The responsible parties had no qualms about creating a legal problem for the state residents and visitors and creating a legal trap. As far as I can tell Järlström was the only expert engineer of the whole bunch and the behavior of the rest was anything but professional.

 

[CWB1]

I don't understand why the opinion doesn't clearly state what "part" is being denied for Nutt.

Bc nuanced legal-eze earns the big bucks. Nutt made two claims - 1. the law itself was flawed ("overbreadth") and 2. the board's application of it was unconstitutional. Bc of the first, he requested an injunction preventing the board from applying it to all expert testimony going forward. The judge ruled that the law itself was fine, the board's application of it was simply wrong and unconstitutional. The law was written to protect public safety and the board applied it to expert testimony which obviously doesnt impact public safety. Good law, bad board. Claim 1 & injunction denied, claim 2 granted.

 

[Sparweb]

What is some Board going to do, tell experts in the aerospace industry (none of which likely have PE’s) that we can’t testify in a public NTSB or NASA accident investigation hearing?? Riiiight.

Do State boards regulate the practices of aeronautical engineers? Aviation is federal law and regulation.
(presuming it's dealt with in the same way in the USA as it is in Canada)
When I speak to my provincial counterparts about what I do, they usually give me a lot of deer-in-headlights looks.

But it sure would be interesting to see an expert witness engineer go in front of a NTSB hearing, and rather than testify, declare that their state of registration prohibits them from testifying, citing these punitive countersuits. Then double-down by requesting the board of inquiry provide him/her with immunity from reprisal from their state engineering board if they do testify!

 

[FacEngrPE]

In in the US the qualification to be a PE consists of:
[ul]
[li]NCEES Fundamentals of Engineering (FE)[/li]
[li]NCEES Principles & Practice (PE)[/li]
[li]Experence.[/li]
[li]A letter of good character from several PE's with knowledge of the applicants work history.[/li]
[/ul]
There is an ongoing continuing education requirement.
Exact requirements depend on the state AHJ.

When I sat for the PE exam in Virginia the test did not offer specializations. It did contain questions that tested your ability to recognize subjects where the test taker is not qualified to answer.

Currently the PE exam is available with 27 specializations.

https://ncees.org/exams/pe-exam/

However the issued license (in Virginia) only states
[ul]
[li]License Description, Professional Engineer License[/li]
[li]Rank, Professional Engineer[/li]
[/ul]

None of the PE Exam specializations are relevant to Aeronautical Engineering, except that once the status of PE is attained, there is a legal the duty of care to protect public safety. See the "Standards of Practice and Conduct" applicable to the jurisdiction of interest.
LINK to "Virginia Standards of Practice and Conduct"

As the subject of engineers having international practices, wondering how to meet licensing requirements comes up periodically, NCEES offers guidance at this link.

https://ncees.org/licensure/international-professionals/

The most usual uses of an engineer's seal here are:
[ul]
[li]Customer requires seal on final document. This could be an engineering calculations or design report.[/li]
[li]Document is to be submitted to the local Building Codes Authority in support of some construction activity.[/li]
[li]Document is a "Site Plan"[/li]
[/ul]
Plats of a property are sealed by a licensed surveyor.

 

[CWB1]

Stateside the boards only regulate licensing. Other agencies regulate each industry's technical issues. The only path for a state licensing board to pursue litigation against an unlicensed engineer is to claim that they're legally required to have a license, but most engineering is protected under the industrial exemption.

Licenses exist bc we still have niches with little regulation selling to the public. IMO its long past time to end that nonsense, abolish the licensing system and establish decent testing and quality standards.

 

[GregLocock]

How do you test a bridge? The Calvin and Hobbes method?

The problem is that in fields where prototypes are impractical, and construction methods are somewhat ad hoc, you have to build to 'ridiculous' factors of safety and design rules which have been established over the decades.

Cheers

Greg Locock


New here? Try reading these, they might help FAQ731-376

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[spsalso]

It seems, these days, that if you want to build a bridge so unusual that it's never been done before (cutting edge, and all that), you just have to find a computer model that says it will work.




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[CWB1]

Most bridges aren't contracted directly by the public layman but rather by a municipality with an engineering dept which hires outside experts as needed. The small beam bridges laymen need for their driveways to cross creeks should be an easy build-per-code and inspectable by the myriad of agencies obsessed with waterways and wetlands stateside. In either case, I dont see licensing bridge engineers as protecting the public from its own ignorance.

 

[Murph 9000]

Never underestimate the enthusiastic layman. Here's an example of a dentist who built a 70' Warren truss combined vehicle and narrow gauge rail bridge in his backyard, with the help of his engineer neighbour.

https://www.dochemp.com/warrentruss.html

 

[FacEngrPE]

The Institute of Law and Justice litigated this case. Link to their version of this story.
Government Threatens Retired Engineer With a Crime for Doing Math

 

[spsalso]

"The Institute of Law and Justice litigated this case."

That's Institute for Justice:

https://ij.org

They do good work for us.


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