Frequently an injured NC worker must rely on their workers’ comp lawyer to introduce expert testimony to prove disability or that an injury is related to employment. Other times the injured worker must defeat expert testimony offered by the employer or its insurance company. Most often the expert is a medical professional although experts in other fields are often called upon to testify, including ergonomics, human factors, engineering and economics. Following is a summary of the law relating to expert and medical testimony in NC workers’ comp cases.
Like a NC trial court, the North Carolina Industrial Commission must decide preliminary questions relating to the qualifications of experts and the admissibility of expert testimony. N.C. Gen.Stat. § 8C-1, Rule 104(a) (2005). Expert testimony is subject to Rule 702 of the North Carolina Rules of Evidence, which states: “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.” N.C. Gen.Stat. § 8C-1, Rule 702(a) (2005).
The North Carolina Supreme Court has established a three part test for determining whether to allow expert testimony:
1) whether the expert’s method of proof is sufficiently reliable
2) whether the witness is qualified as an expert in that area
3) whether the expert’s testimony is relevant. State v. Goode, 341 N.C. 513, 527-29, 461 S.E.2d 631, 639-641 (1995).
The NC Supreme Court held that reliability is “a preliminary, foundational inquiry into the basic methodological adequacy of an area of expert testimony.” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 460, 597 S.E.2d 674, 687 (2004). “[O]nce the trial court makes a preliminary determination that the scientific or technical area underlying a qualified expert’s opinion is sufficiently reliable (and, of course, relevant), any lingering questions or controversy concerning the quality of the expert’s conclusions go to the weight of the testimony rather than its admissibility.” Id. at 461, 597 S.E.2d at 688.
In assessing whether testimony is reliable the court should first “look to precedent for guidance in determining whether the theoretical or technical methodology underlying an expert’s opinion is reliable.” Id. at 459, 597 S.E.2d at 687. If such guidance is insufficient the court should assess, without limitation: ” ‘the expert’s use of established techniques, the expert’s professional background in the field, the use of visual aids before the jury …, and independent research conducted by the expert.’ ” Id. at 460, 597 S.E.2d at 687 (quoting State v. Pennington, 327 N.C. 89, 98, 393 S.E.2d 847, 852-53 (1990)).
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