License in Same Profession Not Required for Standard of Care Expert: Wisconsin

Expert witnesses are not required to be licensed in a profession to testify as to the standard of care in that profession, the Wisconsin Court of Appeals has ruled, reversing the trial court.

In Mehrotra v. Campbell, Wis. Ct. App. 2018 AP 1758, Anushree Mehrotra and Himanshu Sharma (the Sharmas) were first-time home buyers who, prior to purchasing their home from the Campbells, hired Robert Krecak, a licensed building inspector, to inspect the home. In his report, Krecak noted some cracks in the basement walls as cosmetic and normal due to concrete shrinkage.

After buying the the home, the Sharmas found many more cracks which Krecak had not noted. Concerned, they hired James Jendusa, a structural engineer, who determined that the cracking walls were the result of a sinking foundation.

The Sharmas sued Krecak and the previous homeowners, alleging against Krecak breach of contract and negligence, with Jendusa as their structural engineering expert witness.

Krecak moved for summary judgment, arguing that Jendusa was not qualified as an expert in the standard of care in home inspection.

At a hearing on the motion, the trail court agreed that Jendusa was unqualified. The court noted that “Jendusa had never taken a home inspection test or performed a home inspection himself.” and that he admitted at his deposition that he was unfamiliar with the Wisconsin statute setting the standard of practice for home inspectors in the state.

After his deposition, Jendusa had submitted a follow-up affidavit incorporating the statutory standard into his expert opinion, but the trial court reject it as a “sham,” excluded Jendusa's testimony and dismissed the Sharma's claims against Krecak.

The Sharmas appealed, arguing that the trial court erroneously disqualified Jendusa, exceeding its Daubert gatekeeping function.

The Wisconsin Court of Appeals reviewed the trial court's decision for abuse of discretion. It agreed with the trial court that Jendusa “has never taken a home inspection test or performed a home inspection himself.” However, the court wrote:

“[O]ne does not have to be licensed in a profession in order to testify about its standard of care …. Rather, one simply has to be qualified as an expert in the area in which the testimony will be given.

The appellate court noted that Jendusa had inspected over 500 basements for structural and water leakage issues, that in his affidavit he had explained that he was “the author of standards adopted by the State of Wisconsin in its code for foundation repair,” that he was a member of the Wisconsin Association of Home Inspectors, that he instructed and lectured home inspectors “on how to inspect and report on basement walls,” and that in the past he had sat on arbitration panels reviewing negligence claims against home inspectors and rendered opinions as to their negligence.

The appellate court noted that, while Jendusa was unfamiliar with the statutory standards of practice for home inspectors at the time of his deposition, he later reviewed the statute and incorporated it into his opinion. That did not make his affidavitt a “sham.” While that initial unpreparedness could go to the weight of his opinion, the appellate court found that it did not make Jendusa's testimony inadmissible.

The appellate court reversed the trial court decision and remanded the cause back to the court.