Well, that’s probably not really likely. But some might say that the Mississippi Supreme Court recently went a little far afield in interpreting the law. So let me start with the actual statute – always the best place to begin a story:
Miss. Code Ann. 73-13-1 provides: “In order to safeguard life, health, and property, and to promote the public welfare, any person or firm in either public or private capacity practicing or offering to practice engineering shall … be licensed … and it shall be unlawful for any person or firm to practice or to offer to practice in this state, engineering …unless such person has been duly licensed …. Miss. Code Ann. 73-13-3 goes on to define the “practice of engineering” to include “expert technical testimony evaluation.” Finally, Miss. Code Ann. 73-13-39 sets out certain penalties for miscreants engaging in this unauthorized behavior: a fine of up to $5,000, expenses, court costs, and the nefarious engineer can contemplate his opprobrious conduct for up to 3 months while enjoying the hospitality of the State.
Based on that plain language – and you have to admit it is pretty plain – most would be hard pressed to argue that an unlicensed engineer testifying in a Mississippi court as an expert had not violated the law. Most, in fact, probably would say that the villain could shortly expect to find himself better acquainted with the local deputy sheriff. “Most,” however, does not include the Mississippi Supreme Court in this instance. See Tellus Operating Group, LLC et al. v. Texas Petroleum Investment Co., et al. (Oct. 4, 2012).
In a case of first impression, the Tellus Court held that evidentiary rules trump criminal statutes – or at least they trump this one. The Court noted that it has always determined that the licensure status of a witness poses no obstacle to an otherwise-qualified expert testifying. The cases cited for that long historical precedent, however, involved different statutes with no criminal aspect. In order to address the nuance created by this particular prickly statute – which turns unlicensed testifying engineers into criminals – the Court relied on the reasoning of courts from 2 other states. Essentially, the Court determined that “the statutory prohibition against an engineer’s providing ‘expert technical testimony’ without a Mississippi license has no bearing on whether a witness is otherwise qualified as an expert ….” In other words, despite acknowledging the clear statutory prohibition, the Court simply decided that the “rules of evidence govern.” The Legislature’s determination that licensing is required to “safeguard life, health, and property, and to promote the public welfare” be darned.
