Smith worked for an aluminum producer from 1935 until 1978. The parties, the executor of Smith’s estate and his former employer, stipulated that he was exposed to asbestos during his time at work. Smith was diagnosed with esophageal cancer in February 2008, specifically esophageal adenocarcinoma.  He died one month later at an advanced age. The executor of his estate, P.S. Wise, then filed this worker’s compensation claim, contending that Smith’s cancer and death were caused or contributed to by asbestos exposure that occurred during his employment with the defendant.


Wise offered three expert witnesses: Dr. NS, head of the Center for Esophageal Disease and Swallowing at the University of North Carolina; Dr. RR, Smith’s treating physician; and Dr. AF, a board certified expert of occupational medicine. The aluminum producer also offered three expert witnesses: Dr. MC, a veterinary pathologist and toxicologist and expert in animal medical studies; Dr. KK, a general oncologist; and Dr. MO, an expert in oncology.

The Industrial Commission entered its Opinion and Award in September 2012. It concluded that Wise failed to prove that: (i) Smith’s esophageal cancer was characteristic of individuals engaged in his particular occupation with the defendant; (ii) Smith’s employment had put him at increased risk of developing esophageal cancer as compared to members of the general public; and (iii) Smith had contracted a compensable occupational disease while working for the defendant. The Industrial Commission denied Wise’s claim.

Wise appealed and Judge Sanford L. Steelman of the Court of Appeals of North Carolina wrote the appellate opinion.  He noted that in one of her arguments, Wise claimed that the Commission erred in admitting the testimony of the defendant’s experts. The North Carolina Supreme Court, in Howerton v. Arai Helmet, Ltd., set out a three-step inquiry for evaluating the admissibility of expert testimony:

(1) Is the expert’s proffered method of proof sufficiently reliable as an area for expert testimony?
(2) Is the witness testifying at trial qualified as an expert in that area of testimony?
(3) Is the expert’s testimony relevant?

Wise contended that the defendant’s witnesses, Drs. KK, MO and MC, were not experts in a medical field relevant to the issue in this case, which she said was esophageal cancer resulting from asbestos exposure. However, the Supreme Court held in Howerton that:

“It is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist, licensed, or even engaged in a specific profession.” “It is enough that the expert witness ‘because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.’“

Dr. KK was tendered as an expert in oncology, and Wise didn’t challenge this. She argued instead that Dr. KK was not offered as an expert regarding the harms of asbestos, or with regard to gastrointestinal disease such as Barrett’s esophagus. Judge Steelman reasoned that, while this level of detail may have been relevant to Dr. KK’s credibility before the Commission, it did not require the exclusion of his testimony. Steelman wrote that it was sufficient that Dr. KK was an expert in oncology, the study, diagnosis, and treatment of cancer in general.

Dr. MO was also offered as an expert in “oncology and gastrointestinal oncology.” Wise didn’t challenge his credentials as an oncologist, but instead, argued that Dr. MO, like Dr. KK, was not qualified to address the specific issue of causation of esophageal cancer. The appellate court was equally as unconvinced with this argument.

Dr. MC, a veterinarian, was tendered as an expert in “toxicology, pathology, and asbestos-associated diseases.” Wise objected in that Dr. MC was not qualified to treat or evaluate humans for asbestos-related disease, and that he had never been tendered as an expert in human disease resulting from asbestos exposure. Judge Steelman noted that Dr. MC’s testimony was offered to present animal studies which had shown no link between asbestos exposure and esophageal cancer. He was not called to testify about the treatment or diagnosis of asbestos exposure in humans, but instead to interpret a medical study. The Court of Appeals held that this was within his area of expertise.

In sum, the Court of Appeals held that there was evidence in the record to support the Commission’s determination that the defendant’s witnesses were sufficiently qualified in their respective fields to testify as experts. As such, Judge Steelman wrote that the Commission was within its discretion to discern the credibility of their testimony and the weight that should be attributed to their testimony.

Wise also argued that, because none of the defendant’s experts had backgrounds in gastroenterology or Barrett’s esophagus, their testimony was not sufficient to support a finding that Smith suffered from this disease. Similarly, Wise argued that her experts, specifically Drs. RR and NS, who were qualified in gastroenterology, asserted that Smith didn’t have Barrett’s esophagus.

According to the pathology report, a biopsy of Smith’s esophagus revealed findings consistent with Barrett’s esophagus. This diagnosis was made by the pathologist, whose credentials were not challenged by Wise. Because the Commission had before it the pathologist’s report, which supported a finding of Barrett’s esophagus, and because the pathologist’s credentials were not challenged by Wise, the Court of Appeals held that there was evidence in the record sufficient to support the Commission’s finding that Smith suffered from this disease.

Where medical experts testified concerning subjects within their areas of expertise, the Industrial Commission did not err in admitting their testimony. The Commission’s judgment was affirmed by the Court of Appeals.

Wise v. Alcoa, Inc., — S.E.2d —-, 2013 WL 6236556 (N.C.App. Dec. 3, 2013).

By Kurt Mattson, J.D. LLM