Carbaugh v. Asbestos Corp. Ltd

1 Because there are many plaintiffs and defendants involved
in these proceedings, there are also many attorneys. We are
therefore listing only the counsel who presented at oral argument
before this court.
2007 UT 65
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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John Carbaugh and Dixie Carbaugh, No. 20050822
Plaintiffs and Appellants,
v.
F I L E D
Asbestos Corporation Limited, et al.,
Defendants and Appellees. August 24, 2007
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Third District, Salt Lake
The Honorable Glenn K. Iwasaki
No. 010910746
Attorneys:1 Gilbert L. Purcell, Novato, CA, for plaintiffs
Patricia W. Christensen, Salt Lake City, for
defendants
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NEHRING, Justice:
INTRODUCTION
¶1 Unlicensed to practice medicine in Utah, Dr. Alvin
Schonfeld set up short-term medical clinics in various hostelries
in Salt Lake City, Utah, for the purpose of examining persons who
suspected that they suffered from asbestos-related diseases.
Dr. Schonfeld confirmed the suspicions of forty-seven
individuals, whom he diagnosed with asbestos-related diseases.
These forty-seven became the plaintiffs in the four cases we have
heard together on this appeal. The plaintiffs sued a legion of
entities that they believed were legally accountable for their
asbestos-related illnesses.

No. 20050822 2
¶2 The plaintiffs designated Dr. Schonfeld as their
medical expert. He was to present his opinion testimony about
the causes of the plaintiffs’ conditions. The defendants,
however, sought summary judgment on the ground that Dr. Schonfeld
had practiced medicine in Utah without a license in violation of
the Utah Medical Practice Act (or the Act), Utah Code Ann. §§ 58-
67-101 to -803 (2002 & Supp. 2005), and was therefore unreliable
as an expert. The district court agreed, granted the defendants’
motions, and dismissed the plaintiffs’ cases because, without the
services of Dr. Schonfeld, they could not present the necessary
expert testimony to sustain their claims. We hold that
Dr. Schonfeld did not violate the Utah Medical Practice Act when
he conducted pretestimony examinations of the plaintiffs and
that, therefore, Dr. Schonfeld did not disqualify himself from
testifying by performing the examinations.
BACKGROUND
¶3 Although licensed to practice medicine in eleven
states, Dr. Schonfeld is not licensed to practice medicine in
Utah. His lack of Utah credentials notwithstanding,
Dr. Schonfeld traveled to Utah and set up examination sites in
hotels and motels in Salt Lake City. Dr. Schonfeld examined a
number of individuals, overseeing the administration of pulmonary
function tests, diagnosing his subjects, and offering medical
advice.
¶4 Dr. Schonfeld employed John Panzera as a technician to
administer the pulmonary function tests. Mr. Panzera did not
have a current license to administer the tests. He had
previously been licensed to conduct pulmonary function tests in
California, but his license had been inactive since 1996.
Dr. Schonfeld diagnosed all of the plaintiffs with asbestos-
related injuries, which became the basis for their suits against
the defendants. No Utah physician participated in
Dr. Schonfeld’s examinations or diagnoses.
¶5 Believing that Dr. Schonfeld’s lack of Utah credentials
rendered him unqualified to testify as a medical expert, the
defendants moved for summary judgment. The defendants noted that
expert testimony was necessary to establish a causal link between
asbestos and the plaintiffs’ diseases; and because the
categorically unreliable Dr. Schonfeld was the only expert
designated to testify on the issue of causation, the defendants
urged the district court to dismiss the plaintiffs’ suits.
¶6 After considering the merits of the motion, the
district court granted the defendants the relief they sought.
The district court concluded as a matter of law that Utah’s

2 The Utah Medical Practice Act, Utah Code Ann. §§ 58-67-101
to -803 (2002 & Supp. 2005), is identical, in all relevant
respects, to the Utah Osteopathic Medical Practice Act, Utah Code
Ann. §§ 58-68-101 to -803 (2002 & Supp. 2005). All citations to
the Utah Medical Practice Act, therefore, will also refer to all
identical counterpart citations to the Utah Osteopathic Medical
Practice Act.
3 No. 20050822
medical licensing statutes did not permit a medical expert to
conduct pretestimony examinations. Based on this conclusion, the
district court held that Dr. Schonfeld’s testimony was obtained
in violation of the Utah Medical Practice Act and was, therefore,
unreliable and inadmissible as a matter of public policy. The
plaintiffs appealed.
STANDARD OF REVIEW
¶7 District courts generally enjoy considerable latitude
in making evidentiary rulings, including rulings concerning the
qualifications of expert witnesses under rule 702 of the Utah
Rules of Evidence. In most instances, therefore, we will disturb
such rulings only when the district court has exceeded its
discretion. State v. Brown, 948 P.2d 337, 340 (Utah 1997). Our
grant of deference to a district court ends, however, when we
review its interpretation of statutes. Pugh v. Draper City, 2005
UT 12, ¶ 7, 114 P.3d 546. This appeal features elements of both
an evidentiary and a statutory ruling. The district court ruling
was made in the context of an application of a rule of evidence,
but the ruling is wholly dependent upon the court’s
interpretation of the Utah Medical Practice Act. Accordingly, if
the district court’s interpretation of the Act was in error, its
evidentiary ruling cannot be sustained. The practical effect of
this circumstance is to subject the district court’s evidentiary
ruling to nondeferential review.
DISCUSSION
¶8 The district court erred when it concluded as a matter
of law that Dr. Schonfeld’s activities undertaken on behalf of
the plaintiffs violated the Utah Medical Practice Act.2 We
therefore reverse the district court’s disqualification of
Dr. Schonfeld on this ground.
¶9 We find that the Act’s expert testimony exception
allows experts who are licensed to practice medicine in other
states but not in Utah, like Dr. Schonfeld, to conduct
pretestimony medical evaluations in preparation for their
forthcoming testimony as expert witnesses. The Act requires that

3 Utah Code section 58-1-307(1) allows identified
persons--including military physicians employed in the armed
forces, students acting under appropriate supervision, and
physicians licensed in other states who consult with licensed
Utah physicians, among others--to “engage in the practice of
their occupation or profession, subject to the stated
circumstances and limitations, without being licensed under this
title.” Utah Code Ann. § 58-1-307(1) (2002 & Supp. 2005).
No. 20050822 4
physicians and surgeons be licensed in Utah in order to engage in
the practice of medicine in Utah, subject to the enumerated
exceptions. This requirement is designed “to protect the people
of Utah from [the] open and unrestrained practice of medicine and
surgery.” State v. Hoffman, 558 P.2d 602, 605 (Utah 1976).
While generally prohibiting the practice of medicine in Utah
without a license, the Act enumerates enough exceptions to
persuade us that the legislature is mindful that, although
individual states have the authority to impose licensing
standards that they deem appropriate, the United States enjoys
nationwide standards for the education, training, and practice of
its physicians.
¶10 Specifically, in addition to the general exemptions
from licensure provided by the Division of Occupational and
Professional Licensing Act,3 the Act outlines several additional
“practices or acts” an individual not licensed to practice
medicine in Utah could perform without violating the Act. These
individuals and “practices or acts” principally include:
(1) an individual offering emergency aid for
no fee;
(2) an individual administering a domestic
or family remedy;
(3) a person engaged in the sale of
vitamins, health foods, dietary
supplements or herbs not otherwise in
violation of federal law;
(4) a person engaged in the good faith
practice of a religious tenet or belief;
(5) an individual statutorily authorized to
withdraw blood to determine drug or
alcohol content;
(6) a medical assistant working under the
direct supervision of a licensed
physician or surgeon;
(7) an individual engaging in the practice
of medicine who is licensed in another
state and who is providing a public

5 No. 20050822
service for a non-commercial purpose
without a fee; and
(8) an individual providing expert testimony
in a legal proceeding.
See Utah Code Ann. § 58-67-305.
¶11 We find that the final exception applies here. In this
case, there is no question that Dr. Schonfeld practiced medicine
in Utah without a license when he held himself out as a
physician, conducted physical examinations, allowed an unlicensed
technician to administer pulmonary function tests, rendered
medical advice, and diagnosed the plaintiffs with asbestos-
related diseases. Dr. Schonfeld performed these “practices or
acts” as “an individual providing expert testimony in a legal
proceeding” and therefore did not violate the Act. Utah Code
Ann. § 58-67-305(8). We agree with the plaintiffs that the
expert witness exception not only allows individuals to hold
themselves out as physicians and to offer medical opinions while
physically occupying the witness chair in a legal proceeding, but
that it allows potential experts to perform medical evaluations
and similar medical “practices or acts” as part of their
preparation to give their testimony.
¶12 Were we to adopt a pinched reading of the expert
testimony exception, we would make the exception all but
inaccessible to out-of-state physicians seeking to serve as
expert witnesses. A medical expert will of necessity be required
to assemble a wide range of data in the course of formulating an
opinion. To prohibit activities of the nature engaged in by
Dr. Schonfeld would be to subvert the purpose of the rules of
evidence “to secure fairness in administration, elimination of
unjustifiable expense and delay, and promotion of growth and
development of the law of evidence to the end that the truth may
be ascertained and proceedings justly determined.” Utah R. Evid.
102.
¶13 The perception that expert witnesses required relief
from operation of the Act itself suggests that the legislature
believes that a medical expert would be called upon to perform
activities that, without the aid of an exception, would be
proscribed by the Act. Since there would be little occasion to
believe that a physician would be held to account for a violation
of the Act merely by testifying in a legal proceeding, it appears
to us that the “practices or acts” contemplated to fall within
the exception would be more expansive than actual trial
testimony.

No. 20050822 6
¶14 The defendants contend that holding oneself out as a
physician is within the definition of the practice of medicine
and that, therefore, the exception was only meant to allow
experts to hold themselves out as physicians while giving
testimony in a legal proceeding. This approach, however, does
not track the plain language of the statute. Experts who solely
offer testimony in legal proceedings do not “practice medicine”
as that term is defined by the Act. The Act defines the
“practice of medicine,” in relevant part, as follows:
(a) to diagnose, treat, correct, administer
anesthesia, or prescribe for any human
disease, ailment, injury, infirmity,
deformity, pain or other condition, physical
or mental, real or imaginary, or to attempt
to do so, by any means or instrumentality,
and by an individual in Utah or outside the
state upon or for any human within the state
. . . .
(d) to use, in the conduct of any occupation
or profession pertaining to the diagnosis or
treatment of human diseases or conditions in
any printed material, stationery, letterhead,
envelopes, signs, or advertisements, the
designation “doctor,” “doctor of medicine,”
“physician,” “surgeon,” “physician and
surgeon,” “Dr.,” “M.D.,” or any combination
of these designations in any manner which
might cause a reasonable person to believe
the individual using the designation is a
licensed physician and surgeon.
Id. § 58-67-102(8)(a), (d). At no point does the Act include
within the definition of the practice of medicine an oral
representation that a person is a physician licensed to practice
medicine in another state but not in Utah. Subsection (d)
includes within the definition of the “practice of medicine”
certain representations about one’s status as a physician, which
might suggest that holding oneself out as a physician is the
practice of medicine, but that section is limited to written
materials “pertaining to . . . diagnosis or treatment.” Id. §
58-67-102(8)(d). A physician providing expert testimony is not
providing writings “pertaining to . . . diagnosis or treatment.”
Id. Rather, experts giving testimony in a legal proceeding would
only orally state that they are physicians licensed in other
states but not in Utah; they would then proceed to give their
opinion about the physical state of their subjects. Therefore,
with or without the expert testimony exception, it is not a
violation of the Act for experts not licensed to practice

7 No. 20050822
medicine in Utah to orally hold themselves out as physicians
while offering expert testimony in this state. Because offering
expert testimony in a legal proceeding would not violate the Act
independent of the expert testimony exception, we conclude that
the expert testimony exception does more than just allow an
expert to offer testimony in a proceeding.
¶15 We hold that the expert testimony exception permits
expert witnesses to conduct examinations in preparation for their
forthcoming expert testimony. Pretestimony examinations of
litigants will often be an essential part of an experts’
preparation to provide helpful testimony to potential jurors. It
is clear to us that the expert testimony exemption anticipates
such examinations and shields those who perform them from the
strictures of the Act.
¶16 We note, however, that this holding does not permit
medical experts who are not licensed in Utah to enjoy the same
privileges to practice as a physician duly licensed to practice
medicine in this state. To qualify for the expert testimony
exception, an unlicensed individual’s practices or acts must be
reasonably related to the testimony that they are preparing to
give. Foreign experts must carefully design their diagnostic
activities to produce medical data that will be helpful in
preparing their testimony. And they must take care not to exceed
the scope of the exception, leaving to others matters of
treatment and disease management not customarily associated with
the duties of an expert witness.
¶17 Our interpretation of the expert testimony exception
does not undermine the important policy considerations underlying
the Act. The defendants contend that the public policy behind
the Act is to protect the citizens of Utah from the unlicensed
practice of medicine. This statement is both true and
incomplete. Exceptions to the Act clearly permit physicians
licensed in other states but not in Utah to practice medicine
here. For example, a physician not licensed in Utah may practice
medicine in Utah in response to an emergency situation. Id.
§ 58-67-305(1). Also, supervised students or physicians employed
by the military can engage in the full practice of medicine
without seeking Utah licensure. Utah Code Ann. § 58-1-307(1).
Thus, the Act does not represent a wholesale mistrust of
nonlicensees, and its primary purpose is not to exclude all
nonlicensees from practicing medicine within the state. In fact,
the Act recognizes that, in some circumstances, Utah citizens
will benefit from the services of nonlicensees practicing
medicine in the state. We create no public policy precedent,
then, when we interpret the expert testimony exception to
similarly extend to our citizens the benefit of fully developed

4 A substantially revised version of Utah Rule of Evidence
702 is currently pending before this court. If adopted, it will
not alter the application of the issues raised in this appeal.
No. 20050822 8
expert testimony from physicians licensed to practice medicine in
other states. Pretestimony examinations and testimony in legal
proceedings are therefore exempted from the strictures of the
Act.
¶18 Although we find that Dr. Schonfeld did not, in fact,
violate the Act when he examined the plaintiffs in Utah without
holding a Utah medical license, we hasten to add that a proposed
expert’s lack of licensure status in Utah in a particular field
will seldom, standing alone, disqualify him or her under rule 702
of the Utah Rules of Evidence.4 We note that this may not be a
symmetrical proposition. In many instances, the possession of
appropriate Utah credentials may be enough to qualify a proposed
expert, but that is not to say that the lack of Utah credentials
will automatically disqualify a potential expert witness.
¶19 Licensing standards are relevant to expert eligibility
under rule 702 of the Utah Rules of Evidence but not
determinative of it. The Utah Constitution “vests in the Utah
Supreme Court both the authority and the duty to ‘adopt rules of
procedure and evidence to be used in the courts of the state.’”
Burns v. Boyden, 2006 UT 14, ¶ 15 n.3, 133 P.3d 370 (quoting Utah
Const. art. VIII, § 4). A statutory scheme promulgated by the
legislature may intrude on that constitutional grant of authority
only under limited circumstances not present here. Id. (citing
Utah Const. art. VIII, § 4).
¶20 We accordingly reverse the district court’s grant of
summary judgment and remand for further proceedings consistent
with the principles established in this opinion.
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¶21 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.