Expert Witness Generally is Not Required to be Licensed in the State of
Testimony.
Almost uniformly, --- except for medical expert witnesses -- states
which have considered the question have decided that a
testifying expert on a professional subject is not required to have a license
from the state certifying authority before he/she can testify.
"[E]ducation, training, knowledge, and experience in a given field
are the factors that render a witness competent to testify as an expert and
qualified to give an opinion on a subject within the scope of his or her
expertise, rather than licensing by the state of the forum. In other words,
it is not essential that an expert witness have a license for the
profession in the state in which the expert testimony is given.... an expert
witness is not rendered incompetent to give expert testimony simply on the
ground that he or she is not registered nor conducts any practice in a
particular state." 31Am. Jur.
2d, Expert and Opinion Evidence at
50 (Footnotes omitted) (emphasis supplied.)
For a sample case, read the
excellent language in a
decision in the state of Washington.
Specific states are discussed below, in alphabetical order.
Note: medical expert witnesses are a different story, with a majority of
states now requiring some in-state certification for testimony in medical
malpractice cases. See our note at the end of this article.
Arkansas - No need to be licensed
in the state.
In Medlock v. State, 964 S.W.2d 196 (Ark. 1998), the Arkansas Supreme
Court held that an Officer was qualified to testify as expert for prosecution in
driving while intoxicated (DWI) trial on subject of hypoglycemic reactions, even
though officer was not doctor or nurse, where officer testified that he had law
enforcement training with regard to DWI detection, served 11 years as special-
forces medic in army, and had specialized training on how to detect signs or
hypoglycemic reactions.
[T]he rule is well settled that expert witnesses may be qualified by
experience, knowledge, or training, and need not be licensed professionals.
Id. at 198
In John H. Parker Const. Co. v. Aldridge, 847 S.W.2d 687 (Ark.1993),
the Supreme Court held that the trial court did not err in permitting unlicensed
excavation contractor to testify as expert in negligence action against licensed
contractor for damage to trees from laying water line, where expert had been
involved in laying water lines for 22 years and operated his own excavation
business. The Court observed:
In Yandell v. State, 262 Ark. 195, 555 S.W.2d 561 (1977) we were
asked to overturn the ruling of the trial court permitting a physician from
Mexico to give expert medical testimony, although unlicensed in the United
States. We held that expert testimony may be given by individuals qualified
by experience, knowledge or training. We adhere to that standard. Id. at
688.
Colorado - No need to be licensed
in the state.
In Corcoran v. Sanner, 854 P.2d 1376 (Colo. App.
1993), a condominium owner brought suit against an architect and contractors for
negligence and breach of contract. On the issue of an unlicensed architect
testifying as an expert witness, the Court of Appeals held:
We reject plaintiff'
s contention that expert witnesses are disqualified from testifying in
Colorado merely because they are not licensed here or do not perform their
services here.
CRE 702 provides that if scientific, technical, or other
specialized knowledge will aid the trier of fact in understanding the
evidence or in determining a fact at issue, a witness qualified as an expert
by knowledge, skill, and training may testify in the form of an opinion.
Thus, an architect unlicensed in Colorado is not disqualified from
testifying as to the standard of care of architects here, provided that the
out-of-state expert has a sufficient familiarity with the proper standard of
care required by Colorado practitioners. Id. at 1381-1382.
Iowa - No need to
be licensed in the state.
In Bandstra v. International Harvester Co., 367 N.W.2d
282 (Iowa App.1985), the court held that a proper foundation was laid for the
admission of testimony of expert witness who had worked in area of industrial
safety for several years and taught safety administration at the university. The
court held:
The lack of a license is not a bar to accepting a person as a witness.
Id. at 289.
See also, Ganrud v. Smith, 206 N.W.2d 311 (Iowa
1973) (where expert witness was not a medical doctor or physician but had
received Ph.D. in physiology, the court upheld the trial court'
s decision to allow submission to jury of such witness'
opinion testimony)
Illinois - Need to
be licensed in the state, to prevent unauthorized practice of law.
In People v. West, 636 N.E.2d 1239 (Ill. App. 1994),
the Court held that a witness who was not licensed to investigate fires was not
qualified to testify as expert witness as to cause of fire in arson prosecution.
The Court took the view that by imposing licensing requirement S.H.A. 225 ILCS
445/2(h)(4),3,4,14,28, the legislature felt strongly that person conducting
arson investigations must be licensed in order to ensure that investigation was
conducted in qualified, unbiased, and proper manner. (Because of this
legislation, the courts cannot ignore the licensing requirement in qualifying a
witness as an expert, particularly where such conduct by the witness could
subject the witness to criminal prosecution.
Id. at 1245); see also, Dolan v. Galluzzo, 396 N.E.2d 13,
16 (Ill. 1979) (We hold that, in order to testify as an expert on the
standard of care in a given school of medicine, the witness must be licensed
therein. Once the fact of such license has been established, it lies within the
sound discretion of the trial court to determine if the witness is qualified to
testify as an expert regarding the standard of care.)
Illinois seems to be one of those rare states that thinks
giving testimony about a profession is the practicing of that profession, which
the licensing statutes make illegal. That line of reasoning has been rejected by
the other states that have had the question presented. See, e.g., the text at
the cases of Kansas, Michigan and Minnesota below.
Indiana - No need
to be licensed in the state.
In State v. Maudlin, 416 N.E.2d 477 (Ind. App. 1981),
the court held that an engineer licensed to practice in another jurisdiction but
not admitted to practice in Indiana could testify as expert witness. The Court
observed:
In order for a witness to qualify as an expert, two
elements must be met: (1) the subject of the inference to be drawn from the
facts must be so distinctly related to some science, profession, business,
or occupation as to be beyond the ken of laymen; and (2) the witness must
have sufficient skill, knowledge, or experience in that field so as to make
it appear that his opinion or inference will probably aid the trier in his
search for the truth.
***Acceptance of the State''
s position would create a provincialism which would deprive our courts of
the expertise and aid of world-renowned authorities. We therefore hold that
a duly licensed practitioner of a profession is not barred from testifying
in a court in this state merely because he has not been admitted to practice
here. Id. at 481 (emphasis added);
See also, State v. Willian, 423 N.E.2d 668, 671 (Ind. App. 1981) (Thus,
we are of the opinion that it is the education, training, knowledge, and
experience in a given field rather than licensing by the state of the forum
which renders a witness competent to testify as an expert and qualified to give
an opinion upon a subject within the scope of his expertise.)
Kansas - No need to
be licensed in the state.
In Dickey v. Corr-A-Glass, 601 P.2d 691 (Kan. App.
1979), the Court held that it was a reversible error for the trial court to
exclude, on the sole ground that the witness was not licensed as a professional
engineer in Kansas, expert testimony by a civil engineering professor. The Court
made the following observations:
The propriety of one acting in a certain capacity
contrary to a licensing statute is not relevant to the ability of an expert
to impart knowledge within the
scope of his special skill and experience that is otherwise unavailable to
the jury. We hold that a witness
may not be disqualified from testifying as an expert solely because he is
not licensed in this state. Id. at 694.
Michigan - If not a
medical malpractice case, no need to be licensed in the state.
In W. W. White Co. v. LeClaire, 181 N.W.2d 790 (Mich. App. 1970), the
court held that the experience a of witness, who was an unlicensed graduate
architect of an accredited university with seventeen years in blueprint and cost
compilation analysis, competently qualified as a witness. (The principal issue
presented on appeal is whether Mr. Edge' s testimony is the practice of
architecture within the meaning of the statute. We think not. Id. at 791)
In cases involving medical malpractice, a Michigan statute
imposes a more stringent standard. Tate Ex Rel. Estate of Hall v. Detroit
Receiving Hosp., 642 N.W.2d 346, 348 (Mich. App. 2002) (Section 2169 provides in pertinent part: (1) In an action alleging medical
malpractice, a person shall not give expert testimony on the appropriate
standard of practice or care unless the person is licensed as a health
professional in this state or another state and meets [certain
omitted] criteria .) As a result of legislative attempts to help the
medical profession over what is construed as a particular malpractice crisis of
doctors, several states now have requirements of licensing and practice before
an expert can testify in the limited category of medical malpractice litigation.
Minnesota - No need
to be licensed in the state.
In Hagen v. Swenson, 236 N.W.2d 161 (Minn. 1975),
witness who was both neurologist and psychiatrist, but not a psychologist,
although his background involved considerable work with psychological testing,
was qualified to interpret Minnesota Multiphasic Personality Inventory
administered to plaintiff, despite fact that he was not a licensed psychologist
We reject
plaintiff' s contention that these
statutes act to prohibit the testimony of Dr. Leemhuis, who is not a
licensed psychologist. They are licensing statutes that have no direct
application to the qualifications of expert witnesses.... Lack of board
certification is not a bar.
Id. at 162
Missouri - No need
to be licensed in the state.
Johnson v. State, 58 S.W.3d 496 (Mo. 2001) held that an
expert witness may be qualified on foundations other than the expert'
s license. Jones v. Grant, 75 S.W.3d 858 (Mo. App. W.D. 2002) court held
that it was a reversible error to exclude expert witness' s testimony concerning
amount of further necessary repairs and improvements on home in breach of
contract action on sole ground that witness was not a licensed contractor. (Thus, an expert witness may be qualified on foundations other than the expert' s
education or license. Id. at
863); see also, Childs v. Williams, 825 S.W.2d 4, 10 (Mo. App.
1992) (Conceivably a psychologist or
other non-physician might attain a degree of knowledge, skill, experience,
training, or education in medicine that would provide the foundation to become a
medical expert.); Landers v.
Chrysler Corp., 963 S.W.2d 275, 281 (Mo. App. 1997) (overruled on other
grounds) (where a neuropsychologist who taught neurology and neurological
surgery at a medical school was permitted to testify as a medical expert as to
the causation of an organic brain injury).
Montana - Appears
to be no need to be licensed in the state.
State v. Harkins, 281 P. 551, 556 (Mont. 1929). The trial
court held not in error in permitting a nongraduate, unlicensed medical witness
to testify to an autopsy. In re Spoya'
s Estate, 282 P.2d 452 (Mont. 1955) (one may be an expert in field of
foreign law, so as to be competent to testify as an expert, though he has not
been admitted to practice in any jurisdiction)
Nebraska - No need
to be licensed in the state.
Floyd v. Worobec, 537 N.W.2d 512 (Neb. 1995) upheld the trial court' s
decision that expert witness who practiced in area of chiropractic care but was
not licensed to practice was not competent to testify that injuries suffered by
motorist in automobile accident were of permanent periodic nature and as to
future course of treatment. ([A] duly licensed and practicing chiropractor is
competent to testify as an expert witness within the scope of his knowledge
according to his qualifications in the field of chiropractics, and the weight of
his testimony is a question for the jury.
Id. at 517, citing Fries v. Goldsby, 80 N.W.2d 171, 178
(Neb. 1956))
New Mexico - No
need to be licensed in the state.
The determination of the qualifications of an expert is a
question for the trial judge and is a matter entrusted to his sound discretion.
State v. Padilla, 347 P.2d 312, 318 (N.M. 1959). Baerwald v. Flores,
930 P.2d 816 (N.M. App. 1996) (Trial court did not abuse its
discretion in determining that a biomechanical engineer was qualified to testify
as expert in biomechanics in an automobile accident case involving
temporomandibular joint (TMJ) injury, notwithstanding that the engineer lacked
engineer' s license and statute
defined the practice of engineering as including giving of expert testimony,
where witness had bachelor' s degree
and master' s degree in mechanical
engineering and other qualificatgions to explain engineering to jury.)
In Madrid v. University of California, 737 P.2d 74
(N.M. 1987), while holding that the phrase
expert medical testimony under the
Workers' Compensation Act does not
mean that only one licensed to practice medicine under licensing law may testify
concerning relationship between disability and employment, the Supreme Court
observed:.
The inescapable conclusion is that there is no
legislative intent to limit the qualification of expert testimony to
licensed physicians. Even expert testimony is not binding on the trier of
facts... The phrase "expert medical testimony" speaks to the type of
specialized knowledge, i.e., medical knowledge, essential to show the
necessary connection between the work-related injury and any disability. The
phrase does not go beyond that to require a specific type of license as a
qualifying requirement for one offered as an expert to give competent
medical information. Id.
at 77.
North Dakota - No
need to be licensed in the state.
North Dakota. North Dakota has not ruled on attorneys, but
has general law that is applicable. Myer v. Rygg, 2001 ND 123, 630 N.W.2d 62,
stating:
An expert
need not be a specialist in a highly particularized field if his knowledge,
training, education, and experience will assist the trier of fact. The rule
does not require an expert to have a formal title or to be licensed in any
particular field, but recognizes it is the witness's actual qualifications
that count by providing that an expert can be qualified by knowledge, skill,
experience, training, or education. We have previously held a trial court
does not abuse its discretion by admitting expert testimony whenever
specialized knowledge will assist the trier of fact, even if the expert does
not possess a particular expertise or specific certification.
And
Rule 702 of
the North Dakota Rules of Evidence "envisions generous allowance of the use
of expert testimony if the witnesses are shown to have some degree of
expertise in the field in which they are to testify."
Kluck v. Kluck, 561 N.W.2d 263 (N.D. 1997) a psychologist
was qualified to give expert opinion on child custody Id. The fact that
psychologist was not licensed in the state, and that his education and training
were primarily in adult clinical psychology, not child psychology, did not
render him unqualified to give expert testimony on child custody Id.,
citing Anderson v. A.P.I. Co. of Minnesota, 559 N.W.2d 204 (N.D. 1997).
[Evidence] Rule [702] governing expert witnesses does not require expert
to have formal title or be licensed in any particular field, but recognizes
that it is witness' actual qualifications that count by providing that
expert can be qualified by knowledge, skill, experience, training, or
education; thus, expert witness' knowledge may be derived from reading alone
in some fields, from practice alone in some fields, or as is more commonly
the case, from both.
Ohio - Generally,
no need to be licensed in the state.
In State v. Awkal, 667 N.E.2d 960, 968 (Ohio 1996),
the court noted that determinations of expert witness qualifications to testify
are within the discretion of the trial court. Id. (Dr. Hewitt had experience that may have been helpful to the jury. However, he
was not individually licensed as a psychologist in Ohio. Nor was he qualified as
a forensic psychologist. As a non-physician, Dr. Hewitt was not competent to
give an opinion on the sanity issue. The trial court had the discretion to
exclude the testimony. Id.
(emphasis added.)
In cases involving medical malpractice, Ohio rules of
evidence impose a more stringent standard. In Steele v. Buxton, 639
N.E.2d 861 (Ohio App. 1994), while holding that a general practitioner was
qualified to testify as expert on procedure performed by surgeon, the Court
observed on the necessity for licensure:
Evid. R. 601 governs the competency of witnesses and
provides, in pertinent part, as follows: Every person is competent to be a
witness except: D) A person
giving expert testimony on the issue of liability in any claim asserted in
any civil action against a physician, podiatrist, or hospital arising out of
the diagnosis, care, or treatment of any person by a physician or
podiatrist, unless the person testifying is licensed to practice medicine
and surgery, osteopathic medicine and surgery, or podiatric medicine and
surgery by the state medical board or by the licensing authority of any
state, and unless the person devotes at least one-half of his or her
professional time to the active clinical practice in his or her field of
licensure, or to its instruction in an accredited school. Id. at 862-863.
Oklahoma - No need
to be licensed in the state.
Oklahoma has not ruled on attorneys, but has ruled in the
medical field
Pierce v. State, 371 P.2d 924 (Okl. Cr. App. 1962) held that
a medically trained witness was qualified to testify as medical expert though he
was not licensed to practice medicine in Oklahoma. See also, Riggle v.
State, 585 P.2d 1382, 1387 (Okl. Cr. 1978) (fact that a recent graduate of
college of osteopathic medicine had accumulated no experience as a practicing
physician and was unlicensed by the state at time he conducted the examination
upon homicide victim' s body did not
necessarily prevent him from testifying as an expert); William v. Perkins,
952 P.2d 483 (Okla. 1997) (To be qualified as expert, witness need not
possess technical training and education, but may qualify based on knowledge,
skill, and experience); Turner v. Dewbre, 530 P.2d 144, 145. (Okl. App.
1974)(A license from the state is not a necessity to testify as a medical
expert.) (A witness need not have some particular academic degree or indeed
any formal training at all.)
South Dakota - No
need to be licensed in the state.
Determination that an expert witness who had a doctor'
s degree in physics and experience with surveys and preparation and use of
contour maps was qualified to testify as an expert as to the flowage, volume,
extent and depth of water in area following storm was not an abuse of discretion
despite the fact that the expert was not licensed surveyor or civil engineer.
Mulder v. Tague, 186 N.W.2d 884, 887 (S.D. 1971).
Tennessee - If not
a medical malpractice case, no need to be licensed in the state.
In cases not involving medical malpractice claims, the
Tennessee courts permit unlicensed experts to testify. Doochin v. U.S.
Fidelity & Guar. Co., 854 S.W.2d 109 (Tenn. App. 1993) (Insured'
s witness, who was full-time arson investigator for fire department, was not
disqualified as expert witness on ground that he did not have license as pivate
investigator and even if licensing statute did apply to him, license was only
one factor affecting his expertise).
However, in cases involving medical malpractice, Tennessee
statute imposes a more stringent standard.But
B even then, it can be waived. In Rose
v. H.C.A. Health Services of Tennessee, Inc., 947 S.W.2d 144 (Tenn. App. 1996),
the court held that the trial court did not abuse its discretion in concluding
that affidavit of medical expert who was not licensed to practice in Tennessee
or in contiguous border state would be admissible in the medical malpractice
case. (Tenn.Code Ann. ' 29-26-115(b)
statutes provides: (b) No person in a health care profession requiring licensure
under the laws of this state shall be competent to testify in any court of law
to establish the facts required to be established by subsection (a) unless he
was licensed to practice in the state or a contiguous bordering state a
profession or specialty which would make his expert testimony relevant to the
issues in the case and had practiced this profession or specialty in one of
these states during the year preceding the date that the alleged injury or
wrongful act occurred.... The court may waive this subsection when it determines
that the appropriate witnesses otherwise would not be available.)
Texas - No need to
be licensed in the state.
In Southland Lloyds Ins. Co. v. Tomberlain, 919 S.W.2d 822, 827 (Tex. App. Texarkana 1996,writ
denied), the court clearly held that there is no requirement that expert witness
hold professional license to render opinion about standard of care within
particular licensed profession.
A requirement
that an expert witness hold a professional license does not comport with the
language or purpose of Rule 702. The rule is meant to insure that if
specialized knowledge will help the trier of fact examine the evidence, a
person who has acquired such knowledge through any one of a number of
methods may testify based on that knowledge . . Requiring that a witness be
licensed in order to testify as an expert is particularly unnecessary in
cases in which the expert has previously held a license or comparable
certification but for one reason or another has allowed it to expire. . . .
Furthermore, training, education, or experience in a jurisdiction other than
Texas may suffice to qualify a potential witness as an expert in courts of
this state. Id. at 827-28 (citations omitted). .
In Southland, the trial court had excluded the defendants
expert witness, ruling that the expert was not qualified to testify concerning
the standard of care for insurance agents because he was not at that time, nor
had he ever been, a licensed Texas recording agent. Id. at 826. The court of
appeals held that the trial court abused its discretion in excluding the
testimony simply because the expert did not hold a current license. Id. at 828.
In support of the expert's qualifications, the defendant
demonstrated that the expert had been licensed previously in Texas as a
soliciting agent, had been licensed in Kansas and Missouri as the equivalent of
a Texas recording agent, that he had let his license expire simply because he
had become too busy to sell insurance, that he was a state-approved insurance
instructor, teaching all types of Texas insurance agents with regard to the
technical and management skills necessary for the proper performance of their
duties, and that he had been an insurance instructor at the University of
Baltimore and at a Texas community college. Id.
State v. Northborough Center, Inc., 987 S.W.2d 187, 193
(Tex. App. 1999) (The witness did not have to be licensed to practice
engineering, architecture, or landscape architecture to be qualified to give
expert testimony on effects of taking in eminent domain proceeding)
And the other way round: a license in the profession in the
state does not automatically an expert make. E.g., Broders v. Heise, 924 SW2d
148 (Texas 1996) quoting Whiting v. Boston Edison Co., 891 F.Supp. 12, 24 (D.
MA, 1995): "Just as a lawyer is not by general education and experience
qualified to given an expert opinion on every subject of the law, so too a
scientist or medical doctor is not presumed to have expert knowledge about every
conceivable scientific principle or disease."
Utah - No need to
be licensed in the state.
State v. Kelley, 1 P.3d 546, 550 (Utah 2000)(expert was
qualified to give opinion as to mentally disabled victim'
s ability to consent to or understand consequences of sexual act.)
Licensing in
and of itself is not dispositive of an expert's qualifications to offer an
opinion.
Wisconsin - No need
to be licensed in the state.
Brain v. Mann, 385 N.W.2d 227, 230 (Wis. App. 1986)(, the
court clearly held that the admission of expert testimony is a matter of trial
court discretion, but an expert witness may only testify within areas in which
he or she is qualified. Id. (The qualification of an expert depends on experience, not on more formal
attributes such as professional licensure.); Karl v. Employers Ins. of Wausau; 254 N.W.2d 255, 261 (Wis. 1977)
The qualification of an expert has historically been a matter not of
licensure, but of experience.
Wyoming - Appears
to be no need to be licensed in the state.
McCabe v. R.A. Manning Const. Co., Inc., 674 P.2d 699 (Wyo. 1983) (An
expert witness is one having superior knowledge of a subject acquired by
professional, scientific, or technical training or by practical experience, or
who possesses peculiar knowledge respecting the matter involved, but is not
ordinarily possessed by lay persons.)
A Note on
Medical Experts.
Medical expert witnesses are a separate story. Because of the
power of the medical lobby, a majority of states have
legislation
that restricts which doctors may testify in medical malpractice actions.
In 2011, the American Medical Association (AMA) approved model legislation for
expert witnesses. Like the Florida expert medical expert witness statute, the
AMA model legislation requires out-of-state medical expert witnesses obtain an
in-state certificate before providing testimony
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