Regulatory Action against "Nutritionist" Joyce Tasker
Stephen Barrett, M.D.
In 2006, the Washington Department of Health ordered Joyce M. Tasker of Coleville, Washington, to stop practicing medicine and veterinary medicine without a license. The department's motion for summary judgment stated that Tasker, who had never held a license to provide any type of health-care, had been using electrodermal testing (EDT) to diagnose a wide variety of problems in humans and animals. Tasker appealed to her local trial court and then to the Court of Appeals, both of which upheld the Health Department's decision. EDT is a bogus procedure based on the notion that health problems can be detected by measuring skin resistance to a tiny electrical current.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
Joyce M. Tasker
DEPARTMENT OF HEALTH, STATE OF WASHINGTON,
PENOYAR, J. — Joyce Tasker appeals from the Department of Health's (DOH) decision that she engaged in the unlicensed practice of medicine and veterinary medicine. The Administrative Law Judge (ALJ) ordered her to cease and desist and issued a fine for her unlicensed practices. Pro se, Tasker appealed the ALJ's decision to the trial court. The trial court affirmed and she now appeals to this court. We affirm.
These facts are from the Department of Health Adjudicative Service Unit's factual findings.
I. Facts Relating to Tasker's "Practice of Medicine"
Joyce Tasker resides in Colville, Washington. She has never held a license to practice as a health care professional in Washington State. She had a web-based business in which she provided human electrodermal testing (EDT). Tasker used two EDT devices to perform her testing, "Orion" and a more recent model, "Asyra." Administrative Record (AR) at 2007.
Tasker's EDT devices emit a small direct electric current through a wire to a brass cylinder covered by moist gauze. The patient holds the brass cylinder while Tasker touches a probe connected to the EDT device by a second wire to "acupuncture points" on her patient's hand or foot. AR at 2008. As the probe touches the patient's body, a low-voltage circuit is created. The EDT device registers electric current flow through the patient's body on the device's monitor screen. It provides a numerical reading on a scale of 0 to 100.
Using the numerical reading, Tasker evaluates whether the patient is "balanced," if there is organ inflammation "associated" with the "meridian" being tested, or if "organ stagnation and degeneration" exists. AR at 2008. Tasker also connects the EDT device to a computer and the computer provides another numerical reading of the electric current through the patient's body. Tasker explains on her website that the computer testing is called Computerized Electrodermal Screening (CEDS). She claims:
The meridian energy flow carries with it information about internal organs that can be used in diagnosis. This is the basis of the [CEDS]. The device used in CEDS is an electrodermal screening device, which works by measuring electrical resistance and polarization at acupuncture points and meridians. Through these safe, skin-level measurements, it is possible to analyze the bio-energy and bio-information produced by internal organs and system.
. . . CEDS is one of the most thorough, powerful, and promising modern, holistic medical/diagnostic methodologies. CEDS addresses the body holistically for a number of reasons: A standard of CEDS examination enables the operator to quickly and safely collect information on 40 different individual systems. In other words, all of the body's individual parts are covered in an examination. The bio- information signal read by the CEDS is a very direct and true description of the condition of the body because it is created by the body.
. . . Product testing allows the operator to test any and every type of medication on the individual patient, including those made from herbs, metals, nosodes, or sarcodes. This allows the operator to explore all types of available treatment.
AR at 2009 (emphasis added).
Tasker also explains on her website that she interprets the EDT results and then identifies the client's medical illnesses or conditions through the client's "energy signature" obtained by the EDT. AR at 2010. Tasker used EDT testing to identify her clients' "electromagnetic signature, the immaterial electromagnetic signature of all kinds in [her clients'] bodies, whether it's Parkinson or something else." In a deposition, Tasker stated:
You know my testing is for electromagnetic signatures. And so if I see the electromagnetic signature of, let's say a pituitary tumor, then if the person's question is "could that be physical," then I would have to tell them what some of the physical indications would be, but it isn't telling them that they have the physical problem. It's just indicating to a person that these are the physical things that they would notice if it was—if it was a physical thing. But I don't know, because I test for electromagnetic signatures.
AR 2010-11, 1607 (emphasis added). After the EDT testing, Tasker creates a "tincture" based on the EDT readings and her evaluation. AR at 2011. She explains that the tincture is either a mixture of water and alcohol or a commercial preparation with the "recording of the electromagnetic fields" that are detected in the client through the EDT testing and stored in the computer "imprinted into that tincture." AR at 2011. She uses the EDT test results to "find a tincture that is as close to matching the electromagnetic fields of the client as possible." AR at 2012.
Tasker claimed on her website that, through her EDT testing, she could evaluate any and every medication type and explore all available treatments. Tasker advised her clients to follow her recommendations, provided medicinal preparations for her clients, and conducted follow-up visits where she would adjust the client's treatment by providing additional tinctures based on subsequent EDT testing. She informed clients that she would identify appropriate dosages of a homeopathic infusion remedy after the testing.
Tasker used her website to solicit clients. She would either test clients in person or obtain blood or saliva samples in the mail and perform testing on the samples. She provided instruction on her website for sending blood and salvia samples to her for EDT testing. She charged $150 for human testing, directed clients to fill out a "health form," a "disorder rating sheet," and a "release form." AR at 2009. When Tasker received the samples in the mail, she tested the samples at her home in Colville and sent a remedy to the client. At one point, Tasker apparently began conducting her EDT readings on tribal land, attempting to deprive DOH of jurisdiction over her practices.
Her website included a listing of remedies, corresponding prices, and client testimonials. Her website stated that "JM" had energy signatures of Alzheimer's disease, Epstein Barr virus, and Chronic Fatigue Syndrome; and "JM" stated:
after testing 5 of the prescriptions my doctors had recommended I take, [Tasker] told me NOT to take 3 of the 5 ... In addition to telling me NOT to take or do for the next 10 weeks, she told me to take the 8 bottles of remedies three times per day in the doses of 3 drops each time. At the end of the 10 weeks I would be re- tested with her Orion computer system.
AR at 2012.
"SM" had a thyroid condition and stomach pains and stated that after Tasker's EDT testing, she experienced immediate relief. "RG" had psoriasis and indicated that his condition did not "break out" when he stopped using his medicine. AR at 2013. Tasker's website indicated that "JT" was cured of porphyria, chemical sensitivity, and kidney/gall bladder cancer. "KV" suffered from diabetes and a stroke and achieved improved circulation, increased mobility, weight loss, and was able to discontinue most of his prescribed medicines after Tasker's EDT testing. "LM" indicated that Tasker identified his pituitary tumor, cured his medical sensitivity, and cured his gallbladder pain through her EDT testing. Tasker's website also indicated that she treated "DB," a seriously-ill cancer patient.
II. Facts Relating to Tasker's "Practice of Veterinary Medicine"
Tasker had a separate web-based business that provided electrodermal testing (EDT) for animals. She conducted the animal testing by placing the EDT probe in the owner's hand, who acted as a "surrogate for delivering the animal's electromagnetic fields into the computer." AR at 2015. She also solicited saliva and blood samples from animals on her website. She charged $115 for the animal testing to identify pathogens, toxins, organ dysfunctions, and emotional dysfunctions in animals. She indicated that by using EDT, she could prescribe various remedies for the animals to cure their determined ailments. Her website contained eleven "case histories" for dogs and cats that underwent EDT. AR at 2014. Her website stated that she had successfully diagnosed and treated animals for a severe Candida problem brought on by a vaccine additive, bald spots, motor function after a major bi-lateral stroke, lumps in the groin area, mobility, binge eating, hyperactivity, migraines, back pain, emotional problems, weight gain, and kidney failure. Her website stated that after just one EDT session, a dog's liver enzymes improved dramatically.
III. Procedural Facts
In 2003, DOH received a complaint regarding Tasker's EDT testing. DOH issued Tasker with a notice of intent to issue a cease and desist order, alleging that Tasker's conduct constituted the unlicensed practice of medicine and veterinary medicine.
On January 25, 2006, DOH alleged in an administration action that Tasker engaged in the unlicensed practice of medicine and veterinary medicine. Both Tasker and DOH filed for summary judgment. AR 2025. DOH held a hearing before an ALJ who denied Tasker's motion for summary judgment, granted DOH's motion for summary judgment, and issued an order for Tasker to cease and desist her EDT practices in Washington State. It found that Tasker engaged in the unlicensed practice of medicine and veterinary medicine and ordered her to stop offering to use any instrumentality, including an EDT device, to diagnose, treat, assess, test, or identify any human or animal disease, ailment, injury, deformity, pain, or other mental or physical condition of humans or animals. It also ordered her to cease and desist from prescribing or administering any drugs or medicinal preparations, including homeopathic remedies or tinctures for humans or animals. It fined her $10,000 for engaging in the unlicensed practice of medicine and veterinary medicine.
Tasker appealed the ALJ's decision to the superior court. She argued pro se that (1) the EDT device is approved for safe use by the Food and Drug Administration (FDA) and is not harmful to humans or animals, and she cannot be cited for unlicensed practice of medicine and veterinary medicine without a showing of harm; (2) the ALJ's decision violated her constitutional right to equal protection because DOH was unfairly targeting EDT testing; and (3) the State of Washington cannot regulate conduct on tribal land and that her EDT testing occurred on tribal land and was outside DOH jurisdiction.
DOH argued that even absent any actual demonstration of harm, Tasker still engaged in the unlicensed practice of medicine and veterinary medicine and that her practices are therefore per se harmful. DOH asserted that the FDA approved the safe use of the EDT device for biofeedback to help patients relax during mental health counseling, but not for the type of testing that Tasker engaged in. DOH conceded that there was no evidence that Tasker actually caused harm to any of her clients, but it argued that engaging in the unlicensed practice of medicine and veterinary medicine is per se harm to the public. DOH asserted that Tasker's unlicensed practices caused harm because (1) her clients may avoid consulting a licensed medical doctor after receiving her care, (2) Tasker might provide improper advice to her clients, and (3) Tasker might defraud her clients by charging fees for her services. DOH argued that even if there was no evidence of actual harm, proof of harm is not required to support a finding of unlicensed medical practice and that RCW 18.120 does not apply. DOH argues that RCW 37.12.020 grants DOH jurisdiction over Tasker's practices even if Tasker is conducting her EDT testing on tribal land.
The trial court affirmed the Board's decision. It concluded that substantial evidence supported the ALJ's conclusion that Tasker was engaged in the "practice" of medicine and veterinary medicine. Report of Proceedings (RP) at 34. It found that she did not use the EDT devices for biofeedback, as the FDA permitted, but that she used it to actually diagnose human and animal ailments. The court explained that Tasker conducted EDT testing, diagnosed problems, and then advised her clients to follow a regime or prescribed course of action. The court noted that Tasker told a client to cease taking medications that a licensed medical doctor prescribed and to follow a different regime she prescribed. The court found that Tasker's practices posed a danger to public health and well being because an individual might forego advice from a licensed medical professional and instead follow Tasker's regime. It found that Tasker's practices easily met the definition for unlicensed practice of medicine in RCW 18.71.011 and veterinary medicine in RCW 18.72.070. It found that Tasker's rights to equal protection were not violated and that there was also no issue regarding jurisdiction. Tasker now appeals.
The Washington Administrative Procedure Act (WAPA) governs judicial review of a final administrative decision. Ch. 34.05 RCW. When reviewing a final administrative decision, we sit in the same position as the trial court and apply the WAPA standards directly to the record before the agency. Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). The burden of demonstrating the invalidity of the agency's action is on the party asserting invalidity; here the burden is Tasker's to demonstrate that the ALJ's decision was not valid. RCW 34.05.570(1)(a). We review questions of law de novo but accord substantial weight to the agency's interpretation of the statutes it administers. Superior Asphalt v. Dep't of Labor and Indus., 112 Wn. App. 291, 296, 49 P.3d 135 (2002). We independently determine the law on mixed questions of law and fact and then apply it to the facts as the agency found. Hamel v. Employment Sec. Dep't 93 Wn. App. 140, 145, 966 P.2d 1282 (1998).
I. Statutory Interpretation of RCW 18.71.011
Tasker asserts many arguments in this appeal, but her main argument concerns interpreting and applying statutes and regulations. Tasker argues that RCW 18.120.010 requires proof that an unregulated practice can clearly cause harm or endanger the public before the State may impose regulations. Additionally, Tasker argues that she did not engage in practicing medicine because the EDT device is like a scale used to measure body weight or a thermometer used to measure body temperature. She explains that the EDT device merely measures electrodermal signals in the body. Finally, Tasker argues that the Washington State Department of Labor and Industries provides compensation for biofeedback treatment from the same device that she used for EDT and that her testing therefore cannot be harmful. She asserts that biofeedback testing is a well-recognized and safe practice.
Statutory construction is a question of law that we review de novo. Pasco v. Pub. Employment Relations Comm'n, 119 Wn.2d 504, 507, 833 P.2d 381 (1992). We look to the statute's plain language in order to fulfill our obligation and give effect to legislative intent. Lacey Nursing Ctr., Inc. v. Dep't of Revenue, 128 Wn.2d 40, 53 905 P.2d 338 (1995). When faced with an unambiguous statute, we derive the legislature's intent from the plain language alone. Waste Mgmt. of Seattle, Inc., v. Util. & Transp. Comm'n, 123 Wn.2d 621, 629, 869 P.2d 1034 (1994). We begin with the statute's plain language and ordinary meaning, but we also look to "the applicable legislative enactment as a whole, harmonizing its provisions by reading them in context with related provisions and the statute as a whole." Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wn.2d 224, 238-39, 110 P.3d 1132 (2005).
The statutes involved here are clear on their face. Title 18 RCW concerns "Businesses and Professionals" in Washington. Chapter 18.71 RCW deals with "Physicians;" chapter 18.92 RCW deals with "Veterinary medicine;" and chapter 18.130 RCW sets out the Uniform Disciplinary Act (UDA) for health professional regulations under Title 18 RCW. Chapter 18.71 RCW was first adopted in 1955. RCW 18.71.003(4). It defines the "practice of medicine:"
A person is practicing medicine if he does one or more of the following:
(1) Offers or undertakes to diagnose, cure, advise or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, by any means or instrumentality;
(2) Administers or prescribes drugs or medicinal preparations to be used by any other person;
(3) Severs or penetrates the tissues of human beings;
(4) Uses on cards, books, papers, signs or other written or printed means of giving information to the public, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human disease or conditions the designation "doctor of medicine", "physician", "surgeon", "m.d." or any combination thereof unless such designation additionally contains the description of another branch of the healing arts for which a person has a license: PROVIDED HOWEVER, That a person licensed under this chapter shall not engage in the practice of chiropractic as defined in RCW 18.25.005.
RCW 18.71.011 (emphasis added). RCW 18.92.010 defines the practice of veterinary medicine:
Any person shall be regarded as practicing veterinary medicine, surgery and dentistry within the meaning of this chapter who shall, within this state, (1) by advertisement, or by any notice, sign, or other indication, or by a statement written, printed or oral, in public or private, made, done, or procured by himself or herself, or any other, at his or her request, for him or her, represent, claim, announce, make known or pretend his or her ability or willingness to diagnose or prognose or treat diseases, deformities, defects, wounds, or injuries of animals; (2) or who shall so advertise, make known, represent or claim his or her ability and willingness to prescribe or administer any drug, medicine, treatment, method or practice, or to perform any operation, manipulation, or apply any apparatus or appliance for cure, amelioration, correction or reduction or modification of any animal disease, deformity, defect, wound or injury, for hire, fee, compensation, or reward, promised, offered, expected, received, or accepted directly or indirectly; (3) or who shall within this state diagnose or prognose any animal diseases, deformities, defects, wounds or injuries, for hire, fee, reward, or compensation promised, offered, expected, received, or accepted directly or indirectly; (4) or who shall within this state prescribe or administer any drug, medicine, treatment, method or practice, or perform any operation, or manipulation, or apply any apparatus or appliance for the cure, amelioration, alleviation, correction, or modification of any animal disease, deformity, defect, wound, or injury, for hire, fee, compensation, or reward, promised, offered, expected, received or accepted directly or indirectly; (5) or who performs any manual procedure for the diagnosis of pregnancy, sterility, or infertility upon livestock; (6) or who implants any electronic device for the purpose of establishing or maintaining positive identification of animals.
RCW 18.92.010 (emphasis added). DOH has authority to investigate complaints, issue cease and desist orders and injunctions, and impose penalties on unlicensed persons of a profession. RCW 18.130.190(1).
Recently, in State v. Pac. Health Ctr., Inc. (PHC), Division I of this court held that alternative health care providers were engaged in the unlicensed practice of medicine when they conducted EDT testing and, based on the imbalance detected during EDT, recommended and provided various remedies, including dietary changes, nutritional supplements, homeopathic mixtures, and herbs. 135 Wn. App. 149, 168-69, 143 P.3d 618 (2006). The PHC website explained that PCH employees could help with a variety of conditions, including high cholesterol, allergies, and immune deficiencies. The court held that because PHC employees offered services to people with various afflictions, told them they could help them feel better, represented that they could help people with physical conditions on their website, used EDT to test for alleged "deficiencies" and then sold clients remedies intended to help relieve or cure those conditions, they engaged in the practice of medicine as defined in RCW 18.71.011. Pac. Health Ctr., Inc., 135 Wn. App. at 165-66. The court stated:
Using EDT as an instrumentality to determine, or "diagnose," medical conditions in a patient and then recommending and selling specific remedies to that person to address those conditions, are practices that unquestionably fall within the valid police power the legislature exercised when it regulated the practice of medicine.
Pac. Health Ctr., Inc., 135 Wn. App. at 166-67. The court held that, although alternative health care provider's terminology may differ from that of mainstream Western medicine, they nonetheless offered to "diagnose" physical conditions by analyzing energy levels, and then they provided remedies to "treat" those conditions and were engaged in the unlicensed practice of medicine under RCW 18.71.011. Pac. Health Ctr., Inc., 135 Wn. App. at 166.
Tasker also offered to diagnose conditions using EDT testing. Tasker used the numerical reading from her EDT device to determine if a client was "balanced," suffered from inflammation of the organ associated with the "meridian" being tested, or suffered from "organ stagnation and degeneration." AR at 2008. She stated on her website that the energy flow measured by her EDT device carries "information about internal organs that can be used in diagnosis." AR at 2009. Like in Pac. Health Ctr., Inc., Tasker used the information obtained from her EDT device to evaluate and identify a client's medical illnesses or conditions through their "energy signature" and would created a tincture based on the EDT readings and her evaluation. AR at 2010-11. We hold that the ALJ did not err in concluding that Tasker was engaged in the unlicensed practice of medicine and veterinary medicine.
Tasker argues that the ALJ wrongly found that she engaged in the unlicensed practice of medicine without demonstrating harm to the public under RCW 18.120.010. But RCW 18.120.010 does not apply. It provides that:
Purpose—Criteria (1) The purpose of this chapter is to establish guidelines for the regulation of health professions not licensed or regulated prior to July 24, 1983, and those licensed or regulated health professions which seek to substantially increase their scope of practice: PROVIDED, That the provisions of this chapter are not intended and shall not be construed to: (a) Apply to any regulatory entity created prior to July 24, 1983...
RCW 18.120.010(1) (emphasis added). DOH is correct that this statute does not apply here because it applies only to the regulation of health professions not licensed or regulated before July 24, 1983; the practice of medicine and veterinary medicine were both regulated prior to 1983. See RCW 18.71.003(4) and RCW 18.92.010.
In Pac. Health Ctr., Inc., the court did not require DOH to demonstrate actual harm—it was enough to demonstrate that PHC employees engaged in practices that met the statutory definition for the practice of medicine. We follow Pac. Health Ctr., Inc. and similarly hold that Tasker engaged in the unlicensed practice of medicine and veterinary medicine when she engaged in EDT testing.
Tasker is correct that WAC 296-21-280 provides that the Department of Labor and Industries will authorize biofeedback treatment for certain conditions under an industrial insurance claim. But she does not use the EDT device for biofeedback and she is not appealing from a compensation denial for an industrial insurance claim; therefore, WAC 296-21-280 does not apply here.
II. Constitutional Arguments
Tasker argues that RCW 18.71.011 is unconstitutionally vague as interpreted by the ALJ because it could regulate conduct that the legislature did not intend to regulate. Tasker gives only passing treatment to her constitutional vagueness argument. Other courts have found that "practice of medicine" is not unconstitutionally overbroad. See People v. Rogers, 249 Mich. App. 77, 90, 641 N.W. 2d 595 (2001); State v. Hoffman, 733 P.2d 502 (Utah 1987). Tasker's EDT activity clearly falls within the "practice of medicine," as defined by RCW 18.71.011 and the legislature's intent. Tasker's vagueness argument is without merit.
Tasker argues that the cease and desist order violates her First Amendment right of free speech. It was not Tasker's claims about EDT that were regulated. Rather, Tasker's conduct was regulated when she offered and actually treated people and animals. Statutes that "regulate behavior, as opposed to speech, will not be overturned unless the over breadth is real and substantial in relation to the conduct legitimately regulated by the statutes." State v. Riles, 135 Wn.2d 326, 346, 957 P.2d 655 (1998). Tasker failed to show any real over breadth of RCW 18.71.011 when applied to her unlicensed EDT practice. Tasker's conduct was legitimately regulated as unlawful practice of medicine.
Tasker argues that the lack of notice that she violated RCW 18.120.001 violated her due process rights. Tasker provides no authority for her "takings" and "notice" argument. Generally, without argument and citation to authority, we will not review an assignment of error. RAP 10.3(a)(5); State v. Olson, 126 Wn.2d 315, 320-21, 893 P.2d 629 (1995). Furthermore, applicable case law is contrary to Tasker's arguments.
It is a legitimate regulatory expression where the legislature seeks to prevent the inadequately trained and uneducated from practicing in areas in which competency is lacking. Griffith v. Dep't of Motor Vehicles, 23 Wn. App. 722, 730, 598 P.2d 1377 (1979). "The State may properly condition the right of one to pursue a lawful occupation where it intimately affects the public health, safety, morals, or general welfare. This is not a denial of due process or equal protection of the law." Id at 731 (quoting 16A C.J.S. Constitutional Law § 669, at 1072). Tasker does not have a due process right to engage in the practice of medicine. Consequently, there was no due process violation for failing to provide her notice or prohibit her from unlawfully practicing medicine. Tasker's due process arguments are without merit.
Tasker asserts that DOH has no jurisdiction over tribal land and that she may use her EDT device on sovereign tribal land. Tasker apparently took her EDT device onto Colville Nation tribal land and conducted her EDT testing on tribal land, in order to deprive DOH of jurisdiction. She asserts that tribal entities have the sole and sovereign power over tribal land. DOH argues that the State of Washington has jurisdiction under RCW 37.12.010 because Tasker does not claim to be a Native American and does not claim to be treating Native Americans on the tribal land.
It is a general rule that on tribal lands, States have authority over non tribal members, but tribes have authority over tribal members. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S. Ct. 894, 71 L. Ed. 2d 21 (1982); Mont. v. United States, 450 U.S. 544, 101 S. Ct. 1245, 67 L. Ed. 2d 493 (1981). Tasker does not assert or provide any evidence that she is a tribal member and therefore the State still had authority over her while she was on tribal lands. She is incorrect that she evaded state jurisdiction by conducting her testing on tribal lands.
IV. Rule of Lenity
Tasker asserts that because there are two rational readings of RCW 18.71.011 and 18.120.010, under the rule of lenity, we must read the statute in her favor. She asserts that when a statute is punitive in nature, lenity requires any ambiguity to be resolved in her favor. She asserts that the administrative hearing was a "quasi-criminal" proceeding and that the rule of lenity therefore applied. DOH counters that the rule of lenity does not apply here because this is not a criminal proceeding.
The rule of lenity applies to both criminal and quasi-criminal statutes. In re Discipline of Haley, 156 Wn.2d 324, 347, 126 P.3d 1262 (2006)( citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982)). Only where a statute is ambiguous does the rule of lenity apply. See State v. Jacobs, 154 Wn.2d 596, 600-01, 115 P.3d 281 (2005).
We need not determine if this proceeding is "quasi-criminal" and "punitive in nature" because, as discussed above, RCW 18.71.011 and RCW 18.120.010 are not ambiguous; therefore the rule of lenity does not apply. Yousoufian v. Office of King County Executive, 152 Wn.2d 421, 98 P.3d 463 (2004); Jacobs, 154 Wn.2d at 600-01.
V. Expert Testimony
Tasker asserts that the expert testimonies of Harriet Hall and Linda Crider were improper because neither was sufficiently qualified as an expert. A trial court has broad discretion in admitting expert evidence, and we review a trial court's decision to admit expert testimony for abuse of discretion. Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P.3d 939 (2004). A party may introduce expert testimony if the expert is properly qualified, relies on generally accepted theories, and is helpful to the trier of fact. ER 702; Philippides, 151 Wn.2d at 393. An expert may not testify outside the area of his expertise and he must have a sufficient factual foundation for his opinion. Queen City Farms Inc. v. Cent. Nat'l. Ins. Co. of Omaha, 126 Wn.2d 50, 104, 35144-7-II 882 P.2d 703 (1994). A speculative expert opinion lacking adequate foundation is inadmissible. Safeco Ins. Co. v. McGrath, 63 Wn. App. 170, 177, 817 P.2d 861 (1991).
Harriet Hall is a licensed medical doctor, received her M.D. in 1970, and serves on the editorial board of The Scientific Review of Alternative Medicine. She testified that based on her review and evaluation, Tasker was practicing medicine as defined by RCW 18.71.011. Linda Crider is a licensed veterinarian, received her D.V.M. in 2002, and practices veterinary medicine in Spokane and Mead, Washington. She testified that Tasker's practices meet the definition for engaging in veterinary medicine. Both were qualified and gave opinions within their area of expertise. The trial court did not abuse its discretion in admitting Hall's and Crider's expert testimony.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
This page was posted on September 5, 2007.