Nebraska Supreme Court affirms Worker Compensation award for asbestos induced mesothelioma that plaintiff’s doctors diagnosed more than 20 years after his retirement from the employer but orders no disability payments to plaintiff’s widow.

No nod to Daubert in this opinion with shaky evidence for the plaintiff. Olivotto v. DeMarco Bros. Co., S-05-1526.

The plaintiff was a concrete and terrazzo installer for the defendant until his retirement in 1980. Although he did not work with asbestos, former co workers testified that asbestos was around their work areas. He did not claim any occupational injury or disease. He died in 2004 from mesothelioma.

His widow sought worker compensation benefits from the employer. The worker compensation court awarded disability and medical costs for the asbestos exposure. The review panel affirmed the award but reversed the disability benefits. Supreme Court affirms the award, but reverses the extra award for out of pocket expenses to the widow and agrees that the widow should not get any disability payments.

Without mentioning Daubert or Nebraska cases following its rule, the Supreme Court restates its relaxed rule for admitting expert testimony on medical causation in worker compensation cases. Basically if the doctor can say anything to justify his conclusions, the court may let it in.

In a workers’ compensation case, a witness must qualify as an expert and the testimony must assist the trier of fact to understand the evidence or determine a fact in issue. The witness must have a factual basis for the opinion, and the testimony must be relevant.

Veatch v. American Tool, 267 N eb. 711, 676 N .W.2d 730 (2004). A determination concerning the sufficiency of the foundation for an expert’s opinion is left to the discretion of the trial court. We conclude there was sufficient evidence to support the medical opinions of Drs. Connor and Deschamps, and the trial court did not abuse its discretion in admitting such evidence.”

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