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Cannon v. Goodyear Tire & Rubber Co.7/5/2005
ble toqualify as competent evidence on issues of medical causation." Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000); see also Dean v. Coach Co., 287 N.C. 515, 522, 215 S.E.2d 89, 94 (1975) (" n expert is not competent to testify as to a causal relation which rests upon mere speculation or possibility.").
In Young, the plaintiff suffered a lumbo-sacral strain while in the course and scope of her employment. Young, 353 N.C. at 228, 538 S.E.2d at 913. The plaintiff was later diagnosed with fibromyalgia and argued that the work-related injury was the cause of the fibromyalgia. Id. at 229-30, 538 S.E.2d at 914. Our Supreme Court held that there was no competent evidence to support a finding of causation, since the doctor's testimony on which the plaintiff relied "was based entirely upon conjecture and speculation." Id. at 231, 538 S.E.2d at 915. Although the doctor testified that the work-related "'"injury could have or would have aggravated or caused the fibromyalgia[,]"'" id. at 233, 538 S.E.2d at 916 (quoting Young v. Hickory Bus. Furn., 137 N.C. App. 51, 56, 527 S.E.2d 344, 348 (2000)), the Court stated that "'could' or 'might' expert testimony insufficient to support a causal connection when there is additional evidence or testimony showing the expert's opinion to be a guess or mere speculation." Young, 353 N.C. at 233, 538 S.E.2d at 916.
Our Supreme Court recently reaffirmed its holding in Young when it adopted the dissents from this Court's opinions in Edmonds v. Fresenius Med. Care, 165 N.C. App. 811, 600 S.E.2d 501 (2004)(Steelman, J., dissenting), rev'd per curiam for reasons stated in the dissent, 359 N.C. 313, 608 S.E.2d 755 (2005), and Alexander v. Wal-Mart Stores, Inc., 166 N.C. App. 563, 603 S.E.2d 552 (2004) (Hudson, J., dissenting), rev'd per curiam for reasons stated in the dissent, 359 N.C. 403, 610 S.E.2d 374 (2005). In Edmonds, the plaintiff suffered from pre-existing kidney problems. 165 N.C. App. at 812-13, 600 S.E.2d at 503. As the result of a compensable work-related injury , the plaintiff was placed on non-steroidal anti-inflammatory drugs (non-steroidals). Id. at 812, 600 S.E.2d at 502-03. The plaintiff claimed that the non-steroidals exacerbated her pre-existing kidney problems, resulting in renal failure, and sought compensation from her employer. Id. at 813, 600 S.E.2d at 503. The dissent adopted by the Supreme Court found that the plaintiff failed to prove that the administration of non- steroidals for her work-related injury caused her renal failure. Id. at 819, 600 S.E.2d at 506. The dissent relied on the Commission's finding of fact that the expert testimony only indicated that the non-steroidals "possibly" or "could or might" have worsened the plaintiff's kidney problems:
19. . . . [The expert] could not say that it was probable; he could only say that it was possible. He stated he could not give an opinion, to a reasonable degree of medical certainty, without knowing all the information surrounding the drugs. [The expert] testified that plaintiff's kidney disease could be attributed to a number of factors, including diabetes, hypertension, a drug source injury , or a blunt trauma injury.
Id. at 817-18, 600 S.E.2d at 506. The dissent concluded that" his testimony does not rise above a guess or mere speculation" and therefore was not competent evidence to show causation. Id. at 818, 600 S.E.2d at 506.
In contrast, the dissent adopted from Alexander found that competent evidence supported the plaintiff's claim that a work- related injury to his foot caused a ruptured disk in the plaintiff's back. 166 N.C. App. at 571, 603 S.E.2d at 558. The dissent stated that although "it s possible to find a few e
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