In a decision both encouraging and troubling and sure to increase the litigation costs and expert witness fees for plaintiffs, especially plaintiffs bringing suit against well-connected and influential institutions or individuals, the Kentucky Supreme Court has ruled that licensed professionals may be disciplined by their professional licensing boards based on expert testimony they give in litigation. The case is Curd v. Kentucky State Bd. of Licensure for Professional Engineers & Land Surveyors, No. 2012-SC-165 (June 19, 2014).
Joseph Curd, a land surveyor, was hired to provide review and expert testimony in a quiet title action in Wayne Circuit Court by one of the parties, the Southwoods. The essence of Curd's expert opinion was that the calls and descriptions in the Southwoods' deed granted them title to the disputed land. He acknowledged, during his testimony, a general surveying principle that a deed's monumentation controls over its calls and descriptions, a concession that undermined his essential point.
The Southwoods lost the nonjury trial. They filed a complaint with the Board regarding the surveyor hired as an expert by their opponents. The Board found that complaint unfounded, but did find fault with Curd's testimony and initiated a disciplinary proceeding against him. Eventually, a 3-day hearing was held, and Curd's testimony in court found to have been dishonest and misleading and to have ignored or suppressed material facts. Curd's license was suspended for six months. After appeals through Franklin Circuit Court and the Court of Appeals, the case made its way to the Kentucky Supreme Court to decide whether Curd was absolutely immune from professional discipline based on his expert testimony.
The Court, in an unanimous opinion authored by Chief Justice John Minton, held that Curd was not absolutely immune from professional discipline based on his expert testimony, and further that substantial evidence supported the Board's sanction against Curd.
The polar points navigated in Chief Justice Minton's opinion are two. The first acknowledges the difficulty of cross-examining some expert testimony and the value that a licensing board can play in achieving candor:
Perhaps when dealing with expert testimony, an administrative body well versed in the subject matter of the testimony may provide more effective accountability for professional candor.
On the other hand, the licensing board does not have the last word:
Our intention is not to unleash licensure boards to sanction testimony simply because it may not fit neatly within the current professional orthodoxy. ... We seek only to point out that a licensee must comply with the licensee's profession's ethical guidelines, not that the only acceptable scientific methods are those approved by the profession.
The Court, however, having framed its analysis with these two competing points, then defaults to discussing the "substantial evidence" standard for reviewing administrative decisions. The Court tells us that Curd's expert testimony was found to be deceptive and misleading but not exactly as to what or how, although one gathers that Curd's attempt to disregard of the monumentation rule is the point of his testimony objectionable to the Board.
It seems inevitable that the Curd decision will have a chilling effect that will deter Kentucky-licensed professionals from providing expert testimony; the prospect and expense of a disciplinary proceeding no matter how groundless will cause some to decline involvement in litigation. That's obviously not the Court's point -- which surely is to deter deceptive and misleading expert testimony -- but will be its effect. This will be especially true when the adverse party is particularly influential or well-connected.
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