Expert Testimony and Professional Licensing Boards: What is Good, What is Necessary, and the Myth of the Majority-Minority Split
Defendants regularly argue that a Review Board's decision must be overturned because it is not supported by expert testimony. Boards counter that they are qualified, by virtue of their role as the guardians of the standards for their profession, to determine the appropriateness of a defendant's conduct without the assistance of expert testimony. When courts address these arguments, they routinely ask if expert testimony is necessary to establish the standard of care in disciplinary hearings before a professional licensing board. Courts answer this question differently. In fact there is a seeming schism among the states about the importance of expert testimony and the role of professional licensing and disciplinary boards. The nature and breadth of this schism is best expressed by the way that they frame the issue, a bare, polar question with a yes or no answer, “Is expert testimony required?” Such a question both seeks and produces a strict dichotomy of response. Not surprisingly, there is general consensus among courts that analyze the issue in this way that there are two answers to this question, two rules. The majority rule requires expert testimony, and the minority rule does not. The problem with this dichotomy, with these pronouncements of the prevailing ‘rules,’ is that they do not accurately reflect the subtlety and the complexity of the analysis that courts actually conduct when facing this issue. No court actually requires expert testimony in all cases. Similarly, even those courts that purport to have a completely deferential rule require expert testimony in certain cases. Logically speaking, then, if there are exceptions to the stated rules, then courts must be considering more than just the fact of a hearing before a professional licensing board; there must be more factors involved in the analysis. This Comment will outline those factors, including both the reasons why courts consider them important and the way that they affect a court's determination as to the significance of expert testimony. From this analysis two principles emerge. First, because expert testimony is neither always nor never required, the question is not if but rather when it is required. Second, there is not so much disagreement among the courts about the role of expert testimony in professional licensing board hearings as the majority-minority rule dichotomy would have it. All courts consider a variety of factors in deciding whether expert testimony should have been presented in any particular case; differences in the ‘rules' announced by the courts are more closely related to a difference in the factual and procedural postures of the cases than in an actual divergence of policies among jurisdictions. It is the position of this Comment that given similar cases, most courts would analyze the question using similar criteria and arrive at similar conclusions.
Timothy P. McCormack,
Expert Testimony and Professional Licensing Boards: What is Good, What is Necessary, and the Myth of the Majority-Minority Split,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol53/iss1/21