Workers’ Compensation – Occupational Disease – Lung Cancer – Hexavalent Chromium – Expert Testimony – Insurance – Carrier on the Risk

Phelps v. Stabilus (Lawyers Weekly No. 12-16-0716, 14 pp.) (Sanford L. Steelman Jr., J.) Appealed from the Industrial Commission. N.C. App. Unpub. Full-text opinion.

Holding: Plaintiff produced three expert witnesses who testified to a reasonable degree of medical certainty that plaintiff’s workplace exposure to hexavalent chromium increased her risk of contracting lung cancer and that her lung cancer was caused by smoking and exposure to hexavalent chromium. Such testimony supported the Industrial Commission’s findings of increased risk and causation; these findings supported the Commission’s conclusion that plaintiff’s lung cancer was causally related to her chemical exposure.

We affirm the Commission’s award of benefits.

It appears that our courts have never decided whether the standard for admissibility of expert testimony set forth in State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995), and Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004), applies in the workers’ compensation context. Even assuming arguendo that the Goode and Howerton standard applies, appellants failed to preserve this issue. Appellants never obtained a ruling on the admissibility of the expert testimony.

Assuming arguendo that appellants preserved the issue for appellate review, we analyze the admissibility of plaintiff’s expert testimony.

Appellants argue that plaintiff’s experts’ opinions were “founded on assumptions that so overstated and misrepresented [plaintiff’s] exposure that the factual foundation therefore would be deemed irrelevant.”

A challenge to the methodology of the expert’s opinion goes to the weight of the testimony and not the admissibility, and this court will not address such issues.

Our Supreme Court clearly stated in Howerton that North Carolina does not apply the gatekeeping function articulated by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rather, the court leaves the duty of weighing the credibility of the expert testimony to the trier of fact.

Finally, defendant Travelers Insurance Co. provided workers’ compensation insurance to the defendant-employer from Oct. 1, 2003 until the employer stopped using hexavalent chromium in 2004. Testimony at the hearing established that, until July 2004, hexavalent chromium was in the paint to which plaintiff was exposed. Medical expert Dr. Costa testified that plaintiff’s exposure to chromium during the last four years of her employment “may have been a factor” in causing her cancer.

The Commission did not err in concluding that plaintiff was last injuriously exposed while Travelers was the carrier on the risk.

Affirmed.