This is the April 2019 edition of PDHengineer’s monthly series of Ethics case studies titled What Do You Think? This series is comprised of case studies from NSPE archives, involving both real and hypothetical matters submitted by engineers, public officials and members of the public.

Your peers and the NSPE Board of Ethical Review have reviewed the facts of the case as shown below. And, here are the results.

A Review of the Facts

Bob is a prominent consulting engineer who is registered in Texas, Louisiana and Oklahoma. He has on prior occasion performed forensic engineering services in connection with accident reconstruction. Bob is retained by an attorney in Arkansas to inspect an accident for the purpose of determining the actual cause of the accident. The attorney also asks Bob to express his professional opinion during the trial on matters relating to the safety and design of equipment which may have failed, causing the accident.

Is it unethical for Bob who is not registered in Arkansas to offer testimony in Arkansas in the manner described?

Here is the result of our survey of your peers:

Ethics Dilemma results

Applicable NSPE Code References:
Code II.3.b: Engineers may express publicly technical opinions that are founded upon knowledge of the facts and competence in the subject matter.
Code III.8.a: Engineers shall conform with state registration laws in the practice of engineering.

Applicable NSPE Code References:
Code II.3.b: Engineers may express publicly technical opinions that are founded upon knowledge of the facts and competence in the subject matter.
Code III.8.a: Engineers shall conform with state registration laws in the practice of engineering.

Discussion

The Board has had occasion to consider cases involving the practice of engineering by forensic engineers.

In BER Case 71-4, Engineer Larry designed a facility for a client who, after construction of the project, filed a lawsuit against him claiming that the cost grossly exceeded the preliminary estimate and that there were numerous design errors. The client terminated the services of Larry upon the filing of the lawsuit and retained Engineer Doug to study the work performed by Larry and to testify on the basis of his study as an expert witness at the trial on the client’s behalf.

Doug prepared a report prior to the trial listing many alleged deficiencies in the work of Larry — some dealing with overall design philosophy which are matters of judgment and opinion and others alleging factual defects in the design and construction. The Board found that it would be ethical for Doug to offer expert testimony at trial on alleged factual errors in the design by Larry, but that it would be unethical for Doug to offer opinion on the design philosophy (merely a difference of opinion as to application of another valid solution) of Larry. We continue to believe this distinction is an important one for all engineers to keep in mind.

We interpret the facts in this case to be in accord with this principle.

The fundamental question to be addressed in this case appears to be whether Bob acted improperly by providing professional services in Arkansas, a state in which he was not licensed. It appears that there are two basic issues which this Board needs to address to resolve this issue:

  1. whether Bob’s actions were consistent with the law; and
  2. whether Bob’s actions were ethical

These questions must find resolution within each state on a case-by-case basis, depending upon the nature of the services provided, the language contained in the state registration law, and other considerations. Nevertheless, as a general proposition, it is generally acknowledged that an individual may be qualified as a technical expert by a court without possessing the minimum legal recognition as demonstrated by a professional license. Both state and federal courts adhere to this rule, and thus it would appear that unless a particular state licensing law prohibited individuals from performing services as an expert, there would not be any legal impediment to prevent an unlicensed individual from functioning as an expert.

This being the case, it would appear that Bob’s failure to be licensed in Arkansas would not cause his actions in testifying in Arkansas to be illegal. Regardless of the legal question, we believe that where an individual offers testimony as an engineering expert, that individual has a professional obligation to demonstrate a minimum level of competence as required by the engineering registration laws. Those laws, which are intended to promote and protect the public health and safety, serve as a legal bench mark for engineers to demonstrate their professional competence in the field of engineering.

In the instant case, Bob met that standard by being registered in three other states. We believe it would be a hardship to require an engineer to be registered in all 50 states in order to serve as an expert in those states. We would also add as a comment that while the legal system may not require an engineering expert to be licensed as a professional engineer in order to be qualified as an expert, in actuality, the legal system does recognize the importance of being licensed in another very crucial manner. During the litigation process, an individual who is not licensed in any state will undoubtedly be placed in the awkward position of having to explain why he or she has not met the minimum legal bench mark established under state law.

Basic to the cooperative peer relations that exist among any professional groups is the mutual respect and consideration that one professional shows toward his or her peers. The engineer’s obligation in this regard is identified in various provisions of the Code of Ethics. One important example is III.7 which clearly admonishes engineers to refrain from injurious, malicious or false comments, either expressed or implied concerning one’s peers. The provision also identifies an appropriate procedure through which engineers may express their concerns about the improper conduct of other engineers.

The Ethical Review Board’s Conclusion

No, it is not unethical

It was not unethical for Bob who is not registered in Arkansas to offer testimony in Arkansas in the manner described.

BOARD OF ETHICAL REVIEW
John F. X. Browne, P.E.; William A. Cox, Jr., P.E.; Herbert G. Koogle, P.E.-L.S.; Paul E. Pritzker, P.E.; Harrison Streeter, P.E.; Otto A. Tennant, P.E.; Lindley Manning, P.E., Chairman

*Note-This opinion is based on data submitted to the Board of Ethical Review and does not necessarily represent all of the pertinent facts when applied to a specific case. This opinion is for educational purposes only and it should not be construed as expressing any opinion on the ethics of specific individuals. This opinion may be reprinted without further permission, provided that this statement is included before or after the text of the case.