Litigators might use an out-of-state expert witness if there is a lack of local experts available or if they require an expert with specialized expertise to support their case.   However, attorneys should be mindful of the state licensure requirements relevant to the expert’s practice.  Licensure became an issue in a recent case where the trial court did not qualify an out-of-state construction expert witness in a water damage case.

The claim arose from the defective construction of an apartment complex. The Defendant, a subcontractor on the project, appealed the jury verdict for the Plaintiff property owners association on the claims of negligence and breach of warranty of workmanlike service, which resulted in severe water damage to the apartments.

The Plaintiff hired the Defendant to install stucco using a proprietary stucco system following the manufacturer’s instructions.  The trial focused solely on the exterior stucco installed by Defendants and the resulting damage. The Plaintiffs presented a qualified expert witness in architecture, forensic architecture, and construction. He testified to numerous deficiencies in the Defendant’s work that constituted a violation of building codes, the installation instructions, and industry standards.

The Defendant tried to qualify an individual, CD, as an expert in construction and engineering, but the Plaintiffs objected to his qualification and also said his testimony should be excluded based on a discovery violation. The trial court ruled against qualifying CD, who was only permitted to testify to his personal observations during his investigation of the apartments—he couldn’t give any opinions.

The jury found in favor of Plaintiffs and awarded actual damages of $7.7M. The Defendants appealed the jury verdict, claiming that the trial court erred in failing to qualify CD as an expert witness.

Judge James E. Lockemy of the South Carolina Court of Appeals wrote in his opinion that because a specific licensing requirement was potentially inconsistent with the variety of ways a person can get specialized knowledge, South Carolina recognized that a trial court’s decision to refuse to qualify a person as an expert just on his or her failure to meet a licensing requirement hindered the truth-seeking function of court. While “non-compliance with licensing requirements or with the statutory law in specialized areas should not require, a fortiori, a trial court to refuse to qualify a witness as an expert,” a trial court can consider it as a factor when analyzing an expert’s qualification.

Specifically, Judge Lockemy said the trial court should have given weight to the factors delineated in the rules of evidence, statutory law, and other sources of authority that might be relevant to a purported expert witness’s level of skill or knowledge. The trial court must also determine whether the offered testimony will assist the trier of fact. “Although lack of licensing and violations of statutory law may often coincide with a lack of specialized skill or knowledge, these attributes are not always bedfellows,” the judge emphasized, quoting earlier case law.

The Defendant tried to qualify CD in the field of engineering and construction. CD held a bachelor’s degree in civil engineering and a master’s degree in civil engineering with a construction management specialty. He was licensed in Georgia and North Carolina, but not in South Carolina and had nearly 30 years of experience in civil engineering and construction. He typically diagnoses problems with buildings, including stucco issues. CD observed testing at the building site in this case, and a licensed engineer did the testing for him. At the trial court’s request, the Defendant presented CD’s particular skills and understanding of South Carolina licensure and building codes. He said he was familiar with the applicable building code, the International Building Code of 2000, because it was also used in Georgia, where he worked. He asserted there was no distinction in his analysis of construction in Georgia and South Carolina, but did admit he wasn’t familiar with any local modification to the International Residential Code of 2000.

The Plaintiffs opposed his qualification for several reasons: (1) he was an out-of-state professional; (2) he had only been qualified as an expert four times, and only in Georgia, (3) he was not licensed in South Carolina, a violation of statutory law, (4) he never designed a building of the type at issue in this case nor had he designed a building in South Carolina, (5) he only observed testing in this case and didn’t conduct any testing of his own; and (6) while he was titled a construction consultant, he didn’t have certification for that designation. The trial court agreed and didn’t qualify CD, stating that it was considering all the information as a whole, and not relying solely on the fact that he was not licensed in South Carolina.

The Court of Appeals found that the trial court abused its discretion because it didn’t give a particular reason for its decision to not qualify the expert. Judge Lockemy and the appellate court believed he held the necessary experience to testify as an expert under Rule 702. Any defects in the amount of his education and experience—if any existed—went to the weight of his testimony rather than its admissibility, Judge Lockemy wrote.  The Court of Appeals said CD had technical and specialized knowledge that would assist the trier of fact to understand the proximate cause of the water intrusion, and it held he should have been allowed to testify.

Although the Court of Appeals found error in the trial court’s decision, the Defendant was still required to show it was prejudiced by this error to warrant reversal.

The Defendant proffered CD’s testimony after the jury returned its verdict. CD gave detailed testimony on the water intrusion, which he claimed was caused by incorrect installation of items surrounding the windows, which wasn’t within the scope of the Defendant’s work. CD explained that another subcontractor was responsible for the improper installation and stated the Plaintiffs would never have seen the problems when it completed its work. Moreover, CD gave definitive testimony in which he said the water intrusion was not proximately caused by the Defendant’s work.

The Defendant presented another witness (RP), for qualification in the areas of construction and restoration with no objection. They claimed that even if it was error to not qualify CD as an expert, RP’s testimony was very much the same as CD’ proffered testimony; his testimony would have been cumulative, and its exclusion was harmless. The Court of Appeals saw holes in that argument: RP was prevented from critiquing any of the architectural aspects because the Plaintiffs were successful in arguing that he wasn’t qualified as an architectural engineer. RP was limited in testifying to the needed repairs of the buildings and the price of repairs, but didn’t conduct a forensic analysis of the buildings. As such, the Court of Appeals believed RP’s testimony wouldn’t have been cumulative. The trial court’s decision to qualify the Plaintiffs’ expert witness who testified to the proximate cause of the water intrusion but not to qualify CD created a situation where the Defendants had no expert witness to rebut the Plaintiffs’ expert.

The Court of Appeals reversed the trial court regarding the qualification of the Defendant’s expert witness, and remanded the case for a new trial. The ruling gave the Defendant a break in the clouds when the water damage case was tried the second time.

By Kurt Mattson, J.D., LLM

20+ years of experience in the legal industry

Teseniar v. Professional Plastering & Stucco, Inc., 407 S.C. 83, 754 S.E.2d 267 (S.C.App. January 8, 2014, rehearing denied Feb. 20, 2014).