Carbaugh v. Asbestos Corporation: Can the Utah Expert Testimony Exception be Applied?

Read the discussion regarding whether the Expert Testimony Exception of the Utah Professional Licensing Act can be applied in the Carbaugh case. This Opinion involves a number of asbestos plaintiffs in Utah who sought relief after finding that their medical expert, although a licensed and credentialed physician in other states, was not licensed to practice medicine in Utah.

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.

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.

Courtesy of the Utah State Courts

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