The owner of the gas rights in a shallow zone brought action against the owner of the gas rights in deep zone of a specific Mississippi property. The claim was that the shallow zone owner had a legitimate ownership interest in these rights and asserted conversion and negligence against owner of the deep zone. The Supreme Court of Mississippi held inter alia that as a matter of first impression, the statute making it unlawful to practice engineering in state without a license did not preclude an out-of-state engineering expert from testifying at trial.
The plaintiffs argued that they owned the “shallow gas” rights from the earth’s surface to a depth of 8,000 feet in land known as the Bilbo A Lease. The plaintiffs sued TPIC in 2004, and a two-month jury trial, the trial court declared that the plaintiffs were the rightful owners and submitted the plaintiffs’ conversion and negligence claims to a jury. The jury held for the defendants, and both sides appealed.
The plaintiffs sought to prove that from the time it acquired ownership in 1995 until 2004, that TPIC wrongfully depleted the natural gas in the shallow zone of the lease. They argued on appeal that two unlicensed engineers testified as experts for the defendants in violation of state criminal law. Plaintiffs believed that the trial judge should have disallowed the expert testimony of TPIC’s petroleum engineers, because providing expert testimony without a Mississippi license was a crime under Mississippi law. TPIC argued that professional licensure status did not disqualify an expert under Rule 702.
Associate Justice James W. Kitchen explained that the state code made it unlawful to “practice engineering” without a Mississippi license, and that the statutory definition of the “practice of engineering” included “expert technical testimony evaluation.” It was a misdemeanor “to practice, or offer to practice, engineering in this state without being licensed” by the Mississippi Board of Licensure for Professional Engineers and Surveyors. However, the judge said that the Supreme Court consistently held that a witness may be qualified to provide expert testimony regardless of his or her professional licensure status. The plaintiffs argued that the cited cases by TPIC were distinguishable because none of the licensing statutes at issue criminalized expert testimony without a license.
This issue was a matter of first impression, and the Mississippi high court looked to other jurisdictions for guidance. It found only New Mexico and South Carolina provided criminal penalties for testifying as an engineering expert without a state license. Nonetheless, the appellate courts in both states ruled the statutes did not apply to expert testimony offered in a court of law. The South Carolina Supreme Court offered several reasons for its decision that its state licensing statutes for engineers, which criminalized “expert technical testimony,” did not apply to judicial proceedings. It said that the purpose of the statute was to shield consumers, and that the witness’s “services were being offered to a South Carolina jury, not to the State’s citizens seeking traditional professional engineering services.” The court also held that to exclude such testimony would clearly contravene and place a significant limitation on Rule 702 of the state rules of evidence. “This singling-out of one type of expert witness seems to us to be an absurd result….” Finally, Judge Kitchen cited what he said might be the most compelling reason for its holding:
[I]f we held that exclusion of an out-of-state professional engineering expert is proper under the statute, the result would be to limit the truth-seeking duty of the courts of this State. We can envision numerous litigation scenarios where a party’s position might only be supported by the expert testimony of an engineer licensed and practicing outside the state of South Carolina. Yet, experts are intended to assist juries. We refuse to endorse an interpretation of the professional engineer licensing statute which has the potential of either preventing out-of-state experts from testifying in South Carolina courts or imposing the unreasonable burden of getting licensed in this State simply to be permitted to provide forensic testimony.
In a near identical circumstance, the New Mexico Court of Appeals took a similar position, and found that the state’s Supreme Court governed the admissibility of evidence by the procedural rules it adopted; when a statute and a rule of evidence were in conflict, the state supreme court’s rules would apply. As a result, even though the New Mexico statute prohibited “expert technical testimony” from an unlicensed engineer, the trial court was not in error by finding the witness qualified to give expert testimony.
Justice Kitchen said that the Supreme Court agreed with other courts that held that the statutory prohibition against an engineer’s providing “expert technical testimony” without a state license had no bearing on whether a witness was otherwise qualified as an expert under Mississippi Rule of Evidence 702. The Mississippi Code Section, the judge wrote, stated that the design of the licensure requirement was “to safeguard life, health, and property, and to promote the public welfare.” Judge Kitchen reasoned that this explicit objective was not furthered by restricting evidence in a judicial proceeding between private parties. In judicial proceedings, the Supreme Court’s rules of evidence governed, and the court found no error in the admission of the expert engineer’s testimony, despite the statutory prohibition.
The Supreme Court affirmed the judgment of the County Circuit Court.
Tellus Operating Group, LLC v. Texas Petroleum Inv. Co., 105 So.3d 274 (Miss. October 4, 2012).
By: Kurt Mattson, J.D., L.L.M.