Can unlicensed physicians conduct medical examinations for expert testimony in Utah? Carbaugh v. Asbestos Corp. Ltd. Explained

In Carbaugh v. Asbestos Corp. Ltd., the Utah Supreme Court addressed whether an out-of-state physician could conduct medical examinations in Utah without violating the state’s licensing requirements when preparing to serve as an expert witness.

Background and Facts

Dr. Alvin Schonfeld, a physician licensed in eleven states but not Utah, set up temporary medical clinics in Salt Lake City hotels to examine individuals suspected of having asbestos-related diseases. He diagnosed forty-seven people with such conditions, who then became plaintiffs in litigation against various entities. Dr. Schonfeld was designated as the plaintiffs’ medical expert. However, defendants moved for summary judgment, arguing that Dr. Schonfeld’s unlicensed practice of medicine in Utah rendered him unreliable as an expert witness.

Key Legal Issues

The central question was whether the Utah Medical Practice Act’s expert testimony exception permitted an unlicensed physician to conduct pretestimony medical examinations. The district court interpreted the exception narrowly, concluding it only applied to actual courtroom testimony, not preparatory medical activities.

Court’s Analysis and Holding

The Utah Supreme Court applied nondeferential review to the statutory interpretation issue. The court found that Utah Code section 58-67-305(8) permits “an individual providing expert testimony in a legal proceeding” to engage in medical practices that would otherwise require licensure. The court rejected a “pinched reading” that would limit the exception solely to courtroom testimony, reasoning that such interpretation would make the exception “all but inaccessible” to out-of-state physicians. The court held that pretestimony examinations are essential preparation for expert testimony and fall within the statutory exception, provided the activities are reasonably related to the anticipated testimony.

Practice Implications

This decision provides important guidance for practitioners using out-of-state medical experts. While the expert testimony exception permits pretestimony examinations, such activities must be carefully designed to produce medical data helpful for testimony preparation. Experts must avoid exceeding the exception’s scope by engaging in treatment or disease management activities not customarily associated with expert witness duties. The court emphasized that lack of Utah licensure alone rarely disqualifies an expert under Rule 702 of the Utah Rules of Evidence.