A New Way to Limit Access to the Courts

Ok.  You have heard of damage caps, certificates of merit, and restrictions on fees that one side of a dispute can pay its lawyers (but no cap on the other side).  And you have heard of experts having to know the local standard of care in reading x-rays or determining whether it is appropriate to operate the right leg when a patient has given given consent to operate on the left.  And if you are from Tennessee you know that medical experts have to come from contigious states to be qualified to testify in a medical malpractice case.

But the good folks down in Alabama have come up with a new way to erect a hurdle on litigants.  How?  The Legislature passed a law that says that in  Alabama an engineer who is a witness in a case has to be licensed in Alabama.  Yep.  And that rule was recently upheld by the Alabama Supreme Court in Board of Water vs. Hunter, 2006 WL 2089914 (July 28, 2006).   (Alabama does not post its opinions on a website that has free public access, there being no particular reason to let the people know what is going on in the court system.  Hell, if they read this stuff they might actually turn out and vote.)

The relevant statutes:

Section 34-11-2(a), Ala.Code 1975:

“No person in either public or private capacity shall practice or offer to practice engineering, unless he or she shall first have submitted evidence that he or she is qualified so to practice and shall be licensed by the board as hereinafter provided.”

Section 34-11-1(7), Ala.Code 1975, as amended in 1997, defines “the practice of engineering” as:

“Any professional service or creative work, the adequate performance of which requires engineering education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, testimony, investigation, evaluation, planning, design and design coordination of engineering works and systems, planning the use of land and water, performing engineering surveys and studies, and the review of construction or other design products for the purpose of monitoring compliance with drawings and specifications; any of which embraces such services or work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects, and industrial or consumer products; equipment of a control, communications, computer, mechanical, electrical, hydraulic, pneumatic, or thermal nature, insofar as they involve safeguarding life, health, or property; and including other professional services necessary to the planning, progress, and completion of any engineering services.” (Emphasis added.)

To be fair, this statute works on hardship on defendants in products liability cases, too, each of whom go around the nation testifying in cases but will now have to secure an Alabama licnese to be qualified.   But my guess is that the impact on defendants in some cases is an unintended consequence.