Government Threatens Retired Engineer With a Crime for Doing Math 39

[drawoh]

Institute for Justice [—] YouTube

I am Googling him here, and it appears he has presented himself as an expert witness. Do chemical engineers understand flooding, piping and stormwater?

--
JHG

 

[phamENG]

If he just wants to help his friends and neighbors, good for him...but if he's going to prepare formal documents to present in court...nope. That's a pretty clear violation of the NC regs. I like how they gloss over the licensing exemption that he operated under for his entire career and portrayed it as the evil board curtailing his rights now that he's retired.

In this country, we rely on people to decide who they want to listen to. We do not rely on government to decide who gets to speak.

Okay...I can go along with that to a point. But as a society we've also decided that certain topics need to be addressed by experienced and knowledgeable individuals and we have created a system to vet them before we listen to them. So, in fact, the government regulation is how our society has decided who gets to speak in certain capacities on certain issues. Does that mean nobody can speak about engineering without a license? No. Does it mean people offering services for hire, legal proceedings, etc. need to be licensed? Yes. Yes it does.

 

[IRstuff]

OK, so he's testifying as an "expert" witness, but he's never actually done the specific work he's testifying on, although he's done similar stuff. Nevertheless, there may be considerations and assumptions that he's unaware of, because he's not a practicing engineer in the field.

https://ij.org/case/nc-engineering-speech/[/URL]]Wayne’s trouble started when he volunteered to testify as an expert witness in a case his son, an attorney, was litigating. The case involved a piping system in a housing development that allegedly caused flooding in nearby areas, and Wayne, who had designed plenty of pipes in his day, volunteered to testify about the volume of fluid that pipe could be expected to carry. Wayne still had a copy of the leading sourcebook on his bookshelf, and the analysis itself seemed pretty easy—at least for Wayne.

So, I say, hang'em high

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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[CWB1]

Seems like another clear case of bureaucrats abusing their position. Given the frequency of this nonsense perhaps it’s time to start prosecuting them.

Nutt isn’t selling services to the public, therefore the industrial exemption applies. Case closed.

 

[IRstuff]

Nutt isn’t selling services to the public, therefore the industrial exemption applies. Case closed.

You didn't read the article, or even my excerpt; he testified in court as an EXPERT witness, and it had nothing to do with making products in an industrial setting, which is what the exemption is for.

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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[drawoh]

IRstuff,

...and half-baked expert witnesses are a problem in the courts. The lawyer was correct to challenge his credentials. If you were presented an engineer as an expert witness, what credentials would you accept?

--
JHG

 

[IRstuff]

I didn't argue that he wasn't half-baked; if anything, I'm arguing the opposite, particularly since he's neither licensed, nor an expert in the that specific subject matter. If he had any expertise in the subject, he wouldn't have to point out that he got the flow equation from a textbook. That's a red flag to me already, irrespective of his possession or lack of license.

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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[geotechguy1]

If he had read the textbook he's probably more up to date on the subject matter than engineers licensed by professional associations who get a license once and are never tested on their knowledge again.

 

[MTNClimber]

If he had read the textbook he's probably more up to date on the subject matter than engineers licensed by professional associations who get a license once and are never tested on their knowledge again.

That might be true but he’s not demonstrating that he’s experienced enough in the subject to be considered an expert witness. I wouldn’t want a PE that only worked as a structural engineer providing an expect testimony on stormwater either. I think that should be left to those civil engineers with decades of experience with storm water design.

I haven’t seen the specific text that the board sent to Nutt but I think IJ might be conflating free speech and expert testimony. I had a couple of engineering professors that never got their PE license. Doesn’t mean they can’t teach or be even considered an expert on a subject.

 

[CWB1]

You didn't read the article, or even my excerpt; he testified in court as an EXPERT witness, and it had nothing to do with making products in an industrial setting, which is what the exemption is for.

Leave the rude comments elsewhere. I watched the video and read several of the articles. You clearly do not understand the industrial exemption nor licensing law. Stateside, licenses purportedly protect the "uneducated" general public from incompetent engineers. Businesses are afforded no such protection, so the exemption covers everything not sold to the public. Expert witnesses commonly aren't licensed, along with consultants, college professors, field service / maintenance engineers, software developers, and many others not making products nor working in an industrial setting.

I didnt find a published deposition, but Nutt made the statement that he calculated the max flow through a drain pipe and found it undersized for the application. I'd hope most Chem Es have done that. Opposing counsel can challenge his expertise and conclusion in court with their own witnesses if they choose to do so as is common, no need to call into question the legality of his making a statement. As to referencing texts, personally I triple check most every equation I use with a professional text as a matter of due diligence despite being able to quote many of them perfectly from memory. I'm often the go-to for resolving engineering errors and have taught, both experiences have shown me that silly errors and poor communication seem to be the most common culprits.

I wouldn’t want a PE that only worked as a structural engineer providing an expect testimony on stormwater either.

Yet how many municipal engineers are responsible for a significant amount of infrastructure outside their experience stateside? All or just most?

Personally I'll give someone a bit of slack for experience that's semi-related bc there are many lacking anything relevant.

 

[cvg]

• Twenty-two (22) states require expert witnesses to be licensed, of which nineteen allow
witnesses to be licensed in any state.
• Twenty-seven (27) states, as well as Guam, do not require expert witnesses to be licensed.
• One (1) state, as well as the District of Columbia, Puerto Rico, and the Virgin Islands, have
no statutory requirements for expert witnesses.

https://www.fsmb.org/siteassets/advocacy/key-issues/expert-witness-by-state.pdf

in addition, some states also require engineering work done prior to testifying must be sealed by a licensed engineer, even if the person testifying in court is not licensed.

 

[phamENG]

cvg - thanks for posting that, but it's specifically for medical testimony. Different rules apply for different topics.

Since these rules vary state to state and we're all in different states (or countries in some cases), I thought it would be useful to post source documents from North Carolina, where I am licensed and occasionally practice.

The NC rules of evidence don't appear to bar him directly from testifying:

(a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if all of the following apply:
(1) The testimony is based upon sufficient facts or data
(2) The testimony is the product of reliable principles and methods.
(3) The witness has applied the principles and methods reliably to the facts of the case.

The only mention of licensing requirements comes in section (b) when they discuss medical malpractice and being a licensed health care provider. Engineers on not specifically referenced in those rules (using 'find' feature in my browser, anyway).

Although the court doesn't seem to mind (legally) if he's licensed or not, I think it's important to compare Rule 702 with the definition of the practice of engineering for the state of North Carolina:

Any service or creative work, the adequate performance of which requires engineering education, training, and experience, in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, investigation, evaluation, planning, and design of engineering works and systems, planning the use of land and water, engineering surveys, and the observation of construction for the purposes of assuring compliance with drawings and specifications, including the consultation, investigation, evaluation, planning, and design for either private or public use, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects, and industrial or consumer products or equipment of a mechanical, electrical, hydraulic, pneumatic or thermal nature, insofar as they involve safeguarding life, health or property, and including such other professional services as may be necessary to the planning, progress and completion of any engineering services.

A person shall be construed to practice or offer to practice engineering, within the meaning and intent of this Chapter, who practices any branch of the profession of engineering; or who, by verbal claim, sign, advertisement, letterhead, card, or in any other way represents the person to be a professional engineer, or through the use of some other title implies that the person is a professional engineer or that the person is licensed under this Chapter; or who holds the person out as able to perform, or who does perform any engineering service or work not exempted by this Chapter, or any other service designated by the practitioner which is recognized as engineering.

Emphasis mine

So by my reading, even though the rules of evidence don't mandate a PE explicitly, it's implied by the fact that doing it puts you squarely within the way the legislation defines the practice of engineering, for which a PE is required. But wait! There's more. As CWB1 rightly mentioned, there are exceptions to this rule. And in some states, those exemptions may very well cover engineering witnesses. But again, not all states are the same. North Carolina is very specific in what is exempted from the definition above, and they are listed in S 89C-25. Limitations on application of Chapter and summarized by NSPE in this state by state guide:

You'll notice that expert testimony in court is NOT listed as an exemption.

 

[phamENG]

So for the sake of clarity in argument, I make one request:

Categorize your argument - are you arguing that this is not a violation of NC law? If so, please cite the code to back it up. Or are you arguing that the law is wrong and he should be allowed to do it? Those are two fundamentally different arguments, and if we can't agree on what we're arguing about then we can't have a meaningful discussion about anything.

For the record, I believe he violated the law as it is written and I agree with the law - if he has sufficient expertise, knowledge, and training to provide expert testimony to a court of law then receiving his Professional Engineering license shouldn't be difficult.

 

[chris3eb]

I'm of the opinion that an expert witness shouldn't need to be a licensed engineer to speak about engineering. If the testimony revolves around something that you would need to be licensed in order to design, then the opposing council can argue in court that the witness isn't credible due to their lack of licensing.

I'm thinking of two problems with the idea that being an expert witness on an engineering matter is "offering your services to the public" and would require licensure:
[ul]
[li]What happens when the testimony is about something that was designed under an industrial exemption? Many of the most qualified potential experts to speak about it wouldn't have their licenses because they also work under the industrial exemption.[/li]
[li]Where is the potential liability? You aren't doing anything that could end up in someone getting hurt or causing property damage.[/li]
[/ul]

 

[MTNClimber]

Yet how many municipal engineers are responsible for a significant amount of infrastructure outside their experience stateside? All or just most?

Personally I'll give someone a bit of slack for experience that's semi-related bc there are many lacking anything relevant.

If I get pulled into a lawsuit over a project that I was involved with, I don’t want an Engineer, who has never worked in my industry, telling me it is their “expert” opinion that my settlement calculations were wrong because they took a soils class in college. Which is totally different than a engineer who works on municipal projects everyday questioning why a flexible retaining wall isn’t buried to frost depth.

The outcome of those two situations are drastically different. One can leave a black mark on my record and cost me a lot in insurance premiums and the other just costs me some time responding to a question on my submittal.

 

[drawoh]

chris3eb,

If I sue you and I bring an expert witness in to claim that you are an idiot, what credentials should your lawyer accept? An engineer's license shows that he is subject to peer review. If he claims to be educated, I would expect at least a graduate degree of some kind. Experience [—] twenty years?

--
JHG

 

[phamENG]

chris3eb -

-Good point on the litigation of work done under an exemption. I'm curious how much of an issue that would be, though. People within the company would likely be material witnesses rather than expert witnesses, and I wonder if they would seek out a competitor's engineer to provide an opinion? It's possible, but it seems like the 'go-to' would be an industry consultant. Somebody who built a career doing that work and then went out to advise firms on their engineering. Such consulting would then require a license, and it becomes moot. Certainly an area worth exploring, though.
-It goes beyond direct liability, I think. For one, I've never thought of the primary reason for a license to be a means of assigning liability. Due to our status as licensed engineers that is certainly a byproduct, but I've always considered it a means of verifying a person's bona fides. As CWB1 mentioned, it's about protecting the uneducated public and preventing fraudsters from spouting off at the mouth, claiming to be engineers, and then having a building collapses and somebody gets hurt. In that regard it is an imperfect system, but it's the one we have. Reforming the licensing system to ensure the competency of licensed engineers is another topic...

 

[chris3eb]

If I sue you and I bring an expert witness in to claim that you are an idiot, what credentials should your lawyer accept? An engineer's license shows that he is subject to peer review. If he claims to be educated, I would expect at least a graduate degree of some kind. Experience — twenty years?

I think it's all a game. If my lawyer thinks that challenging the expert witnesses' credentials will help me win the case, then that should be done. At some point, the credentials may be so strong challenging them may hurt may case in the eyes of the judge and/or jury. In this case, it seems like it would have been easy to challenge his credentials.

Good point on the litigation of work done under an exemption. I'm curious how much of an issue that would be, though. People within the company would likely be material witnesses rather than expert witnesses, and I wonder if they would seek out a competitor's engineer to provide an opinion? It's possible, but it seems like the 'go-to' would be an industry consultant. Somebody who built a career doing that work and then went out to advise firms on their engineering. Such consulting would then require a license, and it becomes moot. Certainly an area worth exploring, though.

I think people within the company may be witnesses as far as cover-ups, etc. but for your run of the mill bad design/negligence, I would think it would either be a competitor or an academic.

It goes beyond direct liability, I think. For one, I've never thought of the primary reason for a license to be a means of assigning liability. Due to our status as licensed engineers that is certainly a byproduct, but I've always considered it a means of verifying a person's bona fides. As CWB1 mentioned, it's about protecting the uneducated public and preventing fraudsters from spouting off at the mouth, claiming to be engineers, and then having a building collapses and somebody gets hurt. In that regard it is an imperfect system, but it's the one we have. Reforming the licensing system to ensure the competency of licensed engineers is another topic...

Maybe liability is the wrong word, but the license is there to protect the public. Testifying in court doesn't put the public at risk.

I could see the state getting fussy if they found out he said he was an engineer and didn't qualify that he didn't need a license for his work, but to say that he can't even talk about something that falls into their vague definition of engineering seems ridiculous. Would they go after chemistry or physics professor for testifying about something that they consider to be engineering, or do they just go after the industrial exemption folks?

 

[Ron]

Yes, Nutt has engineering expertise. Yes, he can probably analyze pipe flow. He is not a licensed professional engineer and has practiced his entire career under the "industrial exception". That exception does not allow an engineer to offer engineering services to the public, only to their industrial employers. There's the big difference. Licensed professional engineers have a statutory and ethical obligation to protect the health, safety and welfare of the public. Under the industrial exception, he cannot offer engineering services to the public without being appropriately licensed to do so. He was not. The Board was correct. He is practicing engineering to the public without a license.

 

[MacGyverS2000]

I'm of the opinion that an expert witness shouldn't need to be a licensed engineer to speak about engineering.

Agreed. I could be considered an "expert" in a category or three, but I have never received (nor ever will) a PE license. I highly doubt there's a PE in the world who could be considered an "expert" in the same areas as that's not the typical career path of someone who studies such things. But there have been numerous court cases (in public safety) where such expertise is required. Without the ability to use non-PE "experts", those cases could never move forward (at least on any technical merits), and I shudder to think such a witness could be fined or arrested for offering such testimony.

Dan - Owner

http://www.Hi-TecDesigns.com