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NC Engineering Email

An email from the North Carolina Board of Examiners for Engineers and Surveyors regarding expert testimony

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Michael James
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75 views

NC Engineering Email

An email from the North Carolina Board of Examiners for Engineers and Surveyors regarding expert testimony

Uploaded by

Michael James
Copyright
© © All Rights Reserved
Available Formats
Download as PDF, TXT or read online on Scribd
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Expert Testimony in North Carolina

The practice of engineering in North Carolina for projects or testimony impacting the public in
North Carolina requires that the individual and company must be licensed in North
Carolina. The following is from my previous email responses and should serve to answer the
question. It is a general statement addressing various aspects of the topic and may need
updating or tailoring to fit specific facts. It is important to understand that it is the determination
of the Courts as to what testimony is accepted into court. The Board addresses the practice of
engineering issues separate from a court determination of what is admissible in court. I have
provided this information in response to questions from attorneys who are proposing to use an
expert witness or are questioning the use by the opposing side. To date there have been no
challenges to the information.

Our Board considers that any testimony that requires engineering knowledge to adequately
provide and to protect the public falls with the definition of the practice of engineering and
requires a NC PE license

Here are some of my previous comments on the topic of Engineering Testimony in North
Carolina. For a more complete information on the topic, an individual can compare the NC
specific statute and rule provisions to those for providing expert testimony in other States and to
the NCEES Model Law and Model Rules.

1. The "practice of engineering" that is prohibited by unlicensed persons in North Carolina under
General Statute G.S. 89C-23 is defined in G.S. 89C-3(6) to include “Any service or creative
work, the adequate performance of which requires engineering, training, and experience, in the
application of special knowledge of the mathematical, physical, and engineering sciences to
such services …” The "practice of land surveying" that is prohibited by unlicensed persons is
defined in G.S. 89C-3(7) to include “Providing professional services such as consultation,
investigation, testimony, evaluation, planning, mapping, assembling, and interpreting reliable
scientific measurements and information relative to the location, size, shape, or physical
features of the earth …” Giving expert witness testimony on engineering or land surveying
matters in the courtroom, in arbitrations or during depositions falls within the defined
professional practice. Both definitions in North Carolina follow very closely the Model Law as
published by the National Council of Examiners for Engineering and Surveying (NCEES). The
Board’s definition of the “practice of land surveying” was revised several years ago to reflect the
practice more accurately and at that time added the specific “testimony” language whereas, the
definition of the “practice of engineering” has not been revised.

2. In addition to the definition of land surveying specifically including testimony (“expert


technical testimony” in the NCEES Model Law), the definition of engineering includes testimony
if engineering education, training or experience is required to re nder the testimony. Further, the
Board Rules as codified in the North Carolina Administrative Code in Title 21, Chapter 56
includes testimony as part of the practice of engineering when it addresses in Rule 56.0701(d)
that “The licensee shall issue public statements only in an objective and truthful manner and: …
(2) “When serving as an expert or technical witness before any court, commission, or other
tribunal, shall express an opinion only when it is founded upon adequate knowledge of the facts
in issue, upon a background of technical competence in the subject matter, and upon honest
conviction of the accuracy and propriety of the licensee’s testimony.”
3. With the separation of powers, it is true that our Board in its role cannot dictate what the
judicial branch of government can do. The court may allow testimony from unlicensed persons
without it being considered a determination that the person has not practiced engineering. The
court tends to allow a wide range of evidence and testimony that must then be rebutted or the
credibility be attacked. Any action the Board takes does not negate what is done by the
court. It is also difficult for testimony to be rendered without a work product of drawings, letters
or report being done. That is more clearly evidence of the practice of the profession. The line
then becomes difficult to draw if part is practice and part is not.

4. Testifying to the standard of care of an engineer appears to fall within the practice of
engineering. How can an individual testify to the standard of care unless that individual is
capable of meeting that standard of care and knowing what is involved from an engineering
standpoint? Isn’t it saying that certain calculations, methods, investigation, etc. are required to
meet the standard of care and whether those have been adequately performed?

5. The Board has proceeded against unlicensed individuals, including those licensed in other
states but not in NC, for the unlicensed practice of engineering. The Board has also disciplined
PEs for failing to be truthful and objective in testimony both in court and in depositions.

6. There is nothing in writing, as such, as to testimony on scheduling or defect issues. if it fits


within the definition of engineering then it would require a PE. Provided there is no holding out
of engineering expertise, such as representation of engineering credentials, and it is not using
engineering education to analyze or make recommendations or comments, then testifying to
scheduling can be provided by individuals with construction or scheduling
knowledge. Schedulers are often not typically PEs. As to defects, provided there is no holding
out of engineering expertise, such as representation of engineering credentials, and it is not
using engineering education to analyze or make recommendations or comments, then testifying
as to observed defects from construction or other knowledge may not require a PE license. An
example is noting that there is a crack in a foundation as opposed to stating that the crack is a
structural defect. Certainly, there are areas to which a contractor can testify that would not
require a PE license, such as a defective or cut joist. The Board has also dealt with these
issues arising in the context of reports of licensed Home Inspectors.

Please understand that this in my understanding of the Board’s position. We extend an offer for
individuals, whether licensees, attorneys, or members of the public, to request that any specific
questions be submitted to the Board for their definitive position.
David S. Tuttle
Board Counsel
As of 2/4/21

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