- The North Carolina Court of Appeals will allow 13 asbestos-related lawsuits to proceed against the owner of a former Charlotte tire manufacturer.
- Those 13 cases were among more than 150 complaints initially filed against Continental Tire.
- The North Carolina Industrial Commission had dismissed the cases based on decisions in "bellwether" cases resolved in 2019 against plaintiffs making similar asbestos-related claims.
The North Carolina Court of Appeals will allow 13 lawsuits to proceed against the owner of former tire manufacturing facility in Charlotte. The plaintiffs were among more than 150 people who initially claimed damages based on alleged exposure to asbestos.
The split 2-1 ruling Wednesday reversed a decision from the North Carolina Industrial Commission, which had dismissed all of the cases. The commission had ruled that the lawsuits were barred by the outcomes of previous “bellwether” cases. The state Appeals Court upheld rulings against plaintiffs in those lawsuits in the 2019 case Hinson v. Continental Tire.
Most of the cases decided Wednesday relied on reasoning set forward in Funderburk v. Continental Tire. That case focused on a worker diagnosed with lung cancer in 2012 who died in 2013. His widow, Debra Gail Funderburk, has been pursuing the legal action for more than a decade.
“Defendant and its predecessor operated a tire manufacturing factory in Charlotte from the 1960s until 2006,” Appeals Court Judge Toby Hampson wrote for the court majority. “Beginning in 2008, more than 150 former employees brought workers’ compensation claims alleging they each developed one or more compensable asbestos-related diseases caused by prolonged exposure to asbestos in the factory. Each claimant was represented by the same counsel, and the cases were consolidated for hearing before the Industrial Commission.”
In 2010 the parties agreed to try six representative, or bellwether, cases first. Once the Industrial Commission ruled against the plaintiffs in those cases, and the Appeals Court affirmed the decision, the company moved to dismiss claims from 139 remaining plaintiffs. Some 125 plaintiffs dropped their claims voluntarily, but 14 cases remained. Thirteen of those cases reached Hampson and his colleagues.
The Industrial Commission ruled against all plaintiffs in November 2023.
“Our review of the record and transcript indicate neither the parties nor the Industrial Commission when consolidating these cases understood the Bellwether Cases to bind the Consolidated Plaintiffs such that dismissal of their cases would be appropriate if the claims of the Bellwether Plaintiffs were denied,:” Hampson wrote.
“Defendant has not identified any statement in the Record, including the transcripts and the Commission’s orders during the pendency and resolution of the Bellwether Cases, that indicates the parties intended to be bound or that the Commission understood its decision to be binding,” he added. “The status of certain of the Consolidated Cases as bellwether cases did not lend them the special preclusive effect Defendant asserts.”
Hampson rejected the argument that the Appeals Court’s 2019 ruling blocked the current lawsuits from moving forward.
“We acknowledge this Court’s decision in Hinson purported to treat all Consolidated Plaintiffs as appellants due to the Opinion and Award addressing ‘common issues,’” he wrote. “However, appeal from that decision of the Industrial Commission was only available to the five Bellwether Plaintiffs, and only those five appealed to this Court. We were without jurisdiction to decide issues applicable to other parties, including Plaintiff.”
The Funderburk case “is remanded to the Industrial Commission for further proceedings in which the Commission shall allow the parties to produce additional evidence as to their claims and defenses,” Hampson wrote. The other 12 plaintiffs face similar results.
Judge April Wood joined Hampson’s opinion. Chief Judge Chris Dillon dissented.
“The Full Commission determined that, based on the ‘law of the case’ doctrine, Plaintiff is barred by our decision in Hinson to pursue any claim based on alleged exposure to asbestos a[t] the factory,” Dillon wrote. “The majority holds that Plaintiff is not barred by Hinson to pursue her claims.”
“I agree, however, with the Commission based on the reasoning below that our holding in Hinson bars Plaintiff’s claims for any asbestos-related diseases,” Dillon added. “Therefore, my vote is to affirm the Commission’s order dismissing Plaintiff’s claims.”
The Appeals Court’s 2019 ruling barred any future asbestos-related claims from the Continental Tire plaintiffs, Dillon explained.
“[T]he sentence in the main text should rightly be read as holding that asbestos levels at Defendant’s factory were not sufficient to cause or contribute to any asbestos-related disease alleged by any of the consolidated plaintiffs, including Plaintiff,” he wrote. “In sum, I conclude Hinson affirmed a determination that the consolidated Plaintiffs failed to meet their burden to show employment at the factory exposed anyone to asbestos sufficient to cause any asbestos-related disease.”
“It may be that the Commission orders reviewed by the Hinson panel could be interpreted more narrowly, as merely deciding that the consolidated plaintiffs failed to prove asbestos at Defendant’s factory could have caused certain specific diseases alleged by the bellwether plaintiffs, including asbestosis,” Dillon added. “However, none of the consolidated plaintiffs, including Plaintiff, appealed our decision in Hinson or sought our Court to clarify or modify that decision. Accordingly, our interpretation of the Commission’s bellwether orders in Hinson became the law of the case and, therefore, binding on all the consolidated plaintiffs.”