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]

It sounds like it would make sense for the legislation for the board and/or the rules of evidence to add a clause for engineering stating that expert testimony is exempt from the PE requirement so long as the engineering work under consideration was not required to be performed by a PE. So if you're dealing with a manufacturing or other 'industrial exemption' issue you can get experts like MacGyverS2000 to weigh in with their experience in the field, but if you're looking at an insufficient structural design or insufficient storm water design that were required to be designed by licensed professional engineers, the expert witnesses giving technical opinions on the adequacy or inadequacy of those designs should be licensed and experienced in their respective fields.

Seems fair enough.

 

[LionelHutz]

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

I agree. It's a lawsuit case in court and no part of this "insofar as they involve safeguarding life, health or property" applies. He was testifying, so I hope he was truthful about his qualifications and work history when testifying to the questions about how he was qualified to calculate this flow value. If the other side feels they can counter or nullify his testimony by questioning his qualifications or providing their own witness, then that's on them to do so.

Making people afraid to testify in case an answer is perceived as "engineering" is a slippery slope to start travelling.

phamENG - As far as I'm concerned that's on the lawyers to decide. If the lawyer decides a non-licensed expert is their best choice to succeed, then that's their choice to make. If the opposition pokes holes in their experts testimony because of it. then they weren't that good a lawyer.

 

[MTNClimber]

Here's the letter from the Board as shown on WECT 6 News:

The letter refers to 89C-23 which states:

§ 89C-23. Unlawful to practice engineering or land surveying without licensure; unlawful use of title or terms; penalties; Attorney General to be legal adviser.

Any person who shall practice, or offer to practice, engineering or land surveying in this State without first being licensed in accordance with the provisions of this Chapter, or any person, firm, partnership, organization, association, corporation, or other entity using or employing the words "engineer" or "engineering" or "professional engineer" or "professional engineering" or "land surveyor" or "land surveying," or any modification or derivative of those words in its name or form of business or activity except as licensed under this Chapter or in pursuit of activities exempted by this Chapter, or any person presenting or attempting to use the certificate of licensure or the seal of another, or any person who shall give any false or forged evidence of any kind to the Board or to any member of the Board in obtaining or attempting to obtain a certificate of licensure, or any person who shall falsely impersonate any other licensee of like or different name, or any person who shall attempt to use an expired or revoked or nonexistent certificate of licensure, or who shall practice or offer to practice when not qualified, or any person who falsely claims that the person is registered under this Chapter, or any person who shall violate any of the provisions of this Chapter, in addition to injunctive procedures set out hereinbefore, shall be guilty of a Class 2 misdemeanor. In no event shall there be representation of or holding out to the public of any engineering expertise by unlicensed persons. It shall be the duty of all duly constituted officers of the State and all political subdivisions of the State to enforce the provisions of this Chapter and to prosecute any persons violating them.

The Attorney General of the State or an assistant shall act as legal adviser to the Board and render any legal assistance necessary to carry out the provisions of this Chapter. The Board may employ counsel and necessary assistance to aid in the enforcement of this Chapter, and the compensation and expenses for the assistance shall be paid from funds of the Board. (1921, c. 1, s. 12; C.S., s. 6055; 1951, c. 1084, s. 1; 1975, c. 681, s. 1; 1993, c. 539, s. 612; 1994, Ex. Sess., c. 24, s. 14(c); 1998-118, s. 21.)

To me, 89C-23 along with the activity exemption information provided in PhamENG's earlier post still points that Nutt's report should not be used as engineering testimony. The freedom of speech angle that IJ is taking seems like a reach. If the IJ wins, what counts as an expert's engineering testimony becomes murky.

 

[phamENG]

Not only is the 1st Amendment defense a reach, it seems to be part of a troubling pattern conflating the remarkably broad language of the 1st Amendment with the idea that anyone can say whatever they please about anything in any setting - a concept that US jurisprudence has batted down often enough.

Had he taken this to a community meeting and said "I have a background in engineering and, after applying engineering principles and running a few calculations, I believe this design is not adequate. The design should be reviewed in detail by a third party." then he's 100% within his rights. The third party reviews it - maybe the community asks him to represent them in discussions with the reviewing engineer so they can understand why he decided what he did - and the reviewing engineer presents their report the court. Everything is on the up-and-up, and nobody has violated anything.

LionelHutz - fair enough. I disagree, though. If reviewing and testifying about a design that was required to be performed by a licensed engineer, the expert witness should also be licensed. The reason I say that is because the testimony, in most cases, is not limited to the technical aspects of the design. It will also include the standard of care. An academic or somebody not practicing engineering in a certain specialty will be unable to speak to the standard of care and, sure, it would be great if every analysis included parts A, B, C, D, E, and F, but for myriad reasons part E is left off and 99% of the time it doesn't matter. This time it did. So while it may be established that there was a way of knowing this would happen, no reasonable engineer in the region would have checked for it either. So I think a licensed PE would, in nearly all cases, be the best positioned to frame the testimony in a meaningful way. You can still say that an attorney should be able to work that out, and to a point you're right. I think the justice system in the US is something to be proud of, but it's also not perfect. I think we need a baseline to protect those who can't afford the top notch attorneys and prolonged legal battles to fight the deeper pockets. Because I really don't think a case should be decided based on the relative size of the check sent to the attorneys.

 

[JedClampett]

I don't want to get all political, but beyond the merits of this individual case, there's a bigger issue. The think tank pushing this case, "Institute for Justice" is a libertarian group who wants to get rid of all licensing requirements. They pick attractive cases, like Mr. Nutt (retired old guy; he just wanted to help), and use them to eliminate licensing requirements (and ultimately, licensing) from the law.
They're working on Arizona (natch) and they're coming to your state soon! Follow the money.

 

[phamENG]

Jed - I agree. I think the part that gets me the most is that I generally consider myself a libertarian. But where many others go the "smallest government possible to the verge of (or, why not, all the way to) anarchy" route I go with "smallest practicable government." The government exists for a reason and has several important jobs to do. I think managing the licensing requirements for engineers, doctors, and other professions to ensure a minimum standard for the health and safety of members of society is one of them.

 

[LionelHutz]

I'd be curious of the report contents. I'm thinking the report is the real reason it's an issue, not the testifying. He likely wrote the report beforehand which was released into the general public and then went to court to testify about the report contents later.

The 1st amendment lawsuit certainly is a big reach.

I do agree that licensing is a requirement and that it's well proven that it can't be left up to the people to get it right. But, it's only a requirement when it's doing work that can put the public at risk.

 

[geotechguy1]

What's an 'expert', anyway? A PE with 20 years experience? 30? 40? Good chance said PE has 5 years of design experience and 35 years of Project Management / Management experience.

 

[MTNClimber]

That’s objective but an “expert” in stormwater design is not a chemical engineer.

 

[IRstuff]

Interestingly, there appears to be nothing on the web about Nutt's actual discipline, only "a degree in engineering."

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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[MTNClimber]

Wayne Nutt spent over 37 years as a practicing engineer, mostly working for the DuPont corporation in North Carolina. In that time, he worked with a variety of different technologies and designed and built a variety of things, including pipes for transportation of fluid, while developing deep expertise in chemical engineering and technology.

Although Wayne is formally trained as an engineer (University of Iowa ‘67) and worked as an engineer, he’s never been a licensed engineer—none of the projects he worked on at DuPont required a stamp from a professional engineer, and, by working directly for DuPont, he avoided the licensing requirement in the various states where he worked (which included Texas, Tennessee, and briefly Virginia, in addition to his primary base in North Carolina).

 

[IRstuff]

Sure, but it never says what the degree was, other than "engineering."

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]

are you arguing that this is not a violation of NC law? If so, please cite the code to back it up.

Stateside we have a common law system, so amateurs nitpicking statute is rather irrelevant. The important bit is how courts have historically interpreted statute, and regarding engineering licenses and the industrial exemption they have been amazingly consistent across the country. As mentioned, the defining characteristic is who the customer is. In this case, Nutt was working for a law firm (his son's) just like any other expert witness, so the industrial exemption applies.

What's an 'expert', anyway? A PE with 20 years experience? 30? 40? Good chance said PE has 5 years of design experience and 35 years of Project Management / Management experience.

What's the quickest way to spot someone who was promoted into a nontechnical role? Look for a list of irrelevant education and certifications in their signature or on their business card - PE, PMP, MBA, etc.

JMO but the best thing we could do with our licensing system stateside is to get rid of it. Our licensing standards are far too low, which has created/promoted a guild of questionable competence who actively work against both public safety and the profession.

 

[IRstuff]

Pretty clear from the law that Nutt's activities are not exempted by the NC PE law

https://www.ncleg.net/enactedlegislation/statutes/html/bychapter/chapter_89c.html[/URL]]
§ 89C-25. Limitations on application of Chapter.
This Chapter shall not prevent the following activities:
(7a) The engineering or surveying activities of a person as defined by G.S. 89C-3(5) who is engaged in manufacturing, processing, producing, or transmitting and delivering a product or public utility service, and which activities are reasonably necessary and connected with the primary services performed by individuals regularly employed in the ordinary course of business by the person, provided that the engineering or surveying activity is not a holding out or an offer to the public of engineering or surveying services, as prohibited by this Chapter. The engineering and surveying services may not be offered, performed, or rendered independently from the primary services rendered by the person. For purposes of this subdivision, "activities reasonably necessary and connected with the primary service" include the following:

a. Installation or servicing of the person's product or public utility service by employees of the person conducted outside the premises of the person's business.

b. Design, acquisition, installation, or maintenance of machinery, equipment, or apparatus incidental to the manufacture or installation of the product or public utility service performed by employees of the person upon property owned, leased, or used by the person.

c. Research and development performed in connection with the manufacturing, processing, or production of the person's product or public utility service by employees of the person.

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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[hokie66]

An expert witness is whoever the court accepts as an expert witness. The law of a particular state can dictate to the court who is not acceptable, but not who is acceptable.

 

[LionelHutz]

Does the judge vet expert witnesses before allowing their testimony or does the legal team just pick their expert witness and bring them into court? If the judge does, I'm thinking it's not too difficult for the law team to put together the information to quality their expert.

 

[phamENG]

Don't know. Some quick googling turned up this article for lawyers learning how to vet their witnesses. The first few paragraphs where it talks about a judge throwing out a jury verdict after finding out the expert witness misrepresented their qualifications suggests they either do not vet them ahead of time or the vetting (on the judge's part) is cursory at best. I imagine there's some variation from court to court and judge to judge.

 

[drawoh]

phamENG,

I am not aware of a trial being messed up by testimony from an unqualified engineering "expert". Engineering is a reputable and replicatable science. Read up on the Satanic child abuse investigations from the nineteen eighties. The "expert" witnesses accepted by the courts were cranks and religious kooks. Quite a few innocent people did serious prison time, and small children were traumatised by unqualified interrogators.

The lawyers who went through that must have learned the importance of vetting experts. To me, the professional engineer status shows that the witness is subject to a code of ethics and peer review. As a qualification, this would be at the top of my list.

--
JHG

 

[phamENG]

drawoh - I'm not aware of engineering specific examples, either. I've read a few things about those trials lately, but not so much about the witnesses called; it's mostly been comparisons between conspiracy theories through the years.

You'd think they would, and perhaps they did, but how well was that passed on? Was it codified in court procedures? I have no clue. Sometimes it would be nice to have a lawyer on here to answer these sorts of questions.

And I agree - a PE would be an important quality in a qualified expert witness testifying on the work of another engineer (particularly a Professional Engineer).

 

[theCorkster]

phAMeng - Don't know. Some quick googling turned up this article for lawyers learning how to vet their witnesses. The first few paragraphs where it talks about a judge throwing out a jury verdict after finding out the expert witness misrepresented their qualifications suggests they either do not vet them ahead of time or the vetting (on the judge's part) is cursory at best. I imagine there's some variation from court to court and judge to judge.

My experience is that during trial the "experts" are questioned with respect to subject matter in front of the judge and the expert has to be accepted by the court as such. Scope of questioning by opposition attorney is part of case preparation.

It is also my experience that attorneys are advocates for their clients and some expect engineering experts to be so as well. This also takes place in the form of limiting expert testimony only to the facts that support their client. If the opposing attorney and expert do not investigate and/or discover some pertinent information, then that information is likely to be occulted and not become part of the trial record.