John Carbaugh and Dixie Carbaugh v. Asbestos Corporation Limited, et al.

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.

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 asbestosrelated
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 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.

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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 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.

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