Court: Panel must hear individual evidence in similar asbestos cases

The North Carolina Court of Appeals on Wednesday reversed the state Industrial Commission’s dismissal of two asbestos-related workers compensation death claims, saying the surviving family members should have the opportunity to submit evidence.

In the two claims, the commission relied on rulings in similar claims that were dismissed over lack of evidence that asbestos in a tire factory caused lung diseases, cancer and death. But in Gilbert v. Cont’l Tire The Ams. and Funderburk v. Cont’l Tire The Ams., the court said those dismissals did not apply.

The appeals court sent the cases back to the commission to consider evidence relevant to the workers dying of lung cancer.

As documented in Funderburk, Continental Tire the Americas and its predecessor operated a factory in Charlotte, North Carolina, from the 1960s until 2006. Beginning in 2008, more than 150 former employees brought workers compensation claims alleging they developed one or more compensable asbestos-related diseases. The same counsel represented each claimant, and the cases were consolidated for hearing before the commission. Because of the number of claimants and the common issues, the parties agreed to a “bellwether” procedure of choosing six similar cases and trying them together, which the commission did in 2019.

The appeals court ruled that Funderburk and Gilbert were not a part of the original claims, some of which were subject to the findings in six cases that were consolidated and tried. In the “bellwether” claims, the commission found insufficient evidence of enough asbestos in the tire factory to cause the claimants’ lung diseases. Continental Tire argued that the “bellwether” ruling applied to other claims.

The appeals court said in Funderburk that for Gilbert, Funderburk and “other similarly-situated” cases, “plaintiffs must be allowed to present evidence specific to their claims, as the common evidence alone could not show whether the plaintiffs were subject to more specific theories of exposure or illness.”