Hinson v. Continental Tire the Americas

• Decision Date: 03 September 2019
• Docket Number: No. COA18-770,COA18-770
• Parties: Gail Canup HINSON, Executrix of the Estate of Walter Dunbar Hinson, Deceased-Employee, Plaintiff-Appellant, v. CONTINENTAL TIRE THE AMERICAS, Self-insured, Employer-Defendant-Appellee. Part of the Continental Tire the Americas Consolidated Asbestos Matters.
• Court: North Carolina Court of Appeals

267 N.C.App. 144

832 S.E.2d 519

Gail Canup HINSON, Executrix of the Estate of Walter Dunbar Hinson, Deceased-Employee, Plaintiff-Appellant,

v. CONTINENTAL TIRE THE AMERICAS, Self-insured, Employer-Defendant-Appellee.Part of the Continental Tire the Americas Consolidated Asbestos Matters.

No. COA18-770

Court of Appeals of North Carolina.

Filed: September 3, 2019

Wallace and Graham, PA, Salisbury, by Edward L. Pauley, for Plaintiff-Appellant.

Fox Rothschild LLP, Greensboro, by Jeri L. Whitfield and Lisa K. Shortt, for Defendant-Appellee.

McGEE, Chief Judge.

This appeal is companion to four additional appeals, COA18-766, COA18-767, COA18-768, and COA18-769 (all five together, the "bellwether cases"), consolidated for hearing by order of this Court entered 8 June 2018. The four companion appeals will be decided by opinions filed concurrently with this opinion.

I. Procedural History

Decedent Walter Dunbar Hinson ("Plaintiff Hinson") worked for Continental Tire the Americas ("Defendant") at Defendant's tire factory (the "factory") in Charlotte from 1967 until 1999.¹ This case and the other bellwether cases involve workers’ compensation claims based on allegations that Plaintiff Hinson, along with the additional four plaintiffs² in the bellwether cases ("Bellwether Plaintiffs"), were exposed to levels of harmful airborne asbestos sufficient to cause asbestos-related diseases, including asbestosis

.³ The bellwether cases constitute a small percentage of a much larger number of related claims that were consolidated by the Industrial Commission (the "consolidated cases").⁴ Determination of the bellwether cases will impact not only the Bellwether Plaintiffs, but also the remaining plaintiffs from the consolidated cases (together with the Bellwether Plaintiffs, "Plaintiffs" or "Consolidated Plaintiffs"). The Full Commission (the "Commission") explained the unique procedure that was adopted to handle the large volume of consolidated cases in five opinions and awards, entered on 25 January 2018, that decided the bellwether cases:

This case is part of a large group of cases (currently numbering 144) alleging occupational exposure to asbestos at [the] factory. The large group of [P]laintiffs contends that they developed asbestos-related disease, primarily asbestosis

, caused by exposure to asbestos at the ... factory[.] Defendant denied that the diagnoses of asbestosis were

valid, and also denied that any employee could develop an asbestos-related disease as a result of employment with [D]efendant because there was insufficient exposure to asbestos in [the] factory.

[The consolidated cases] were postured so that there would be an "initial six" cases to be tried as bellwether cases. Although the 144 cases had many issues and facts in common, it was an impossibly large number to try individually, and too difficult to manage in one joint hearing. Therefore, [P]laintiffs’ counsel selected a group of six representative bellwether cases to be tried together in a consolidated manner. The evidence presented in this consolidated hearing regarding the factory, [asbestos] exposures to employees, the criteria for the diagnosis of asbestosis

, the scientific evidence regarding asbestos exposure, and the potential for disease causation would be common to, and thus universally applicable to, all 144 claims. The parties agreed that evidence on the general issues was to be part of the record for all [consolidated cases], to the extent the evidence was applicable to each [P]laintiff's issues. The [B]ellwether [P]laintiffs’ individual medical and employment histories would be addressed, as would scientific evidence applicable to all 144 claims regarding asbestos-related-disease-causing capabilities, including the exposure and medical causation testimony. In addressing the bellwether cases first and presenting evidence applicable to all extant claims, the assumption was that after the six cases proceeded through trial, decision and appeal, the parties would be in a better position to evaluate the remaining claims. The remaining [consolidated cases] could then be potentially resolved, or they could proceed to abbreviated hearings for the introduction of evidence regarding their individual medical and employment information.

One of these "initial six" [Bellwether P]laintiffs, Kirkland ..., filed a Notice of Voluntary Dismissal with Prejudice on 13 November 2012. This left five Bellwether Plaintiffs to proceed through trial, decision,

and appeal.⁵ While under the jurisdiction of former Deputy Commissioner George Glenn, these matters were set on a course unlike that of most workers’ compensation cases, in that each side was given the opportunity to have a "full trial on the science"—with freedom to prosecute the cases according to the civil procedure used in superior court. The parties were permitted to take as many pre-hearing depositions as they wished and could call as many hearing witnesses as they determined to be necessary. The [B]ellwether [P]laintiffs’ cases were heard together in a consolidated posture by former Deputy Commissioner Gheen on a special-set basis in various locations over the course of thirty-eight hearing days beginning 14 February 2011 and concluding 18 February 2013. Former Deputy Commissioner Gheen's hearing of these claims also involved substantial pre-trial proceedings.^[6] Much of the evidence presented was "common" evidence applicable to all 144 extant claims.

.... The Full Commission has reviewed and considered all hearing and deposition transcripts, along with all evidentiary exhibits, arguments, and briefs in reaching a decision in this claim.

After hearings had already commenced, the deputy commissioner entered a 27 July 2012 order requiring that "Plaintiffs who die during the pendency of these claims shall have at least 30 blocks of lung tissue preserved for autopsy and examination by an expert of Defendant's choice." The deputy commissioner based this order on the following findings and reasoning:

[Defendant] denies that any of its employees, including claimants, would have had sufficient exposure to asbestos from working at its facility to either cause or contribute to an asbestos related disease. It has presented the testimony of multiple credible expert witnesses in support of this defense.

[ ] Plaintiffs’ claims against [Defendant] are based, in part, on a "B-read" of an x-ray provided by Plaintiffs’ expert.^[7] As testified by the medical experts, radiological studies are only effective at identifying abnormal features on the x-ray that may be consistent with the disease of asbestosis

, but also may be consistent with multiple other lung diseases. In order to make a diagnosis of asbestosis, a physician is called upon to rule out other possible conditions.

[ ] The medical experts representing both parties have repeatedly testified that the only way to positively identify whether or not a lung condition or other cancer is caused by asbestos exposure is to take a sample of and examine the actual lung tissue. However, due to the risks involved, this procedure is not done while the patient is alive; it is commonly performed at autopsy.

Therefore, the deputy commissioner ordered that Plaintiffs save lung tissue of any Plaintiffs who died so that their lung tissue could be examined. Plaintiffs did not fully comply with this order.

The deputy commissioner reasoned in a 30 April 2013 order: "The diagnoses [of asbestosis

], or lack thereof, by the experts is based on the reading of the same radiology. Both sides argue the veracity of their own experts." "Given the opposing medical findings, ... the undersigned Deputy Commissioner suggested to the parties" that they "jointly agree to independent medical experts or to experts chosen by the Industrial Commission to review the radiology and any other relevant medical evidence, which experts’ opinion both parties would accept as final." "Alternatively the parties debated whether the Plaintiffs should be compelled to submit to a high resolution computed tomography (hereinafter ‘HRCT’) scan to be interpreted by a physician selected by the Commission in order to determine the presence or absence of asbestosis." Defendant agreed to the suggestion, and agreed to pay for the HRCT scans and associated costs, but Plaintiffs did not agree.

During the hearings, "[m]uch of the evidence presented was ‘common’ evidence applicable to all 144 extant claims." Due to the resignation of the deputy commissioner who had presided over the hearings, the consolidated cases were assigned to a different deputy commissioner on 15 April 2015. Plaintiffs and Defendant completed submission of evidence to the deputy commissioner, and made their closing oral arguments on 26 and 27 January 2016. The deputy commissioner filed his opinions and awards in the bellwether cases on 19 December 2016, denying the claims of all five Bellwether Plaintiffs. Plaintiffs appealed to the Full Commission on 21 December 2016. The Commission heard the matters on 29 June 2017, and also denied Plaintiffs’ claims by five opinions and awards entered 25 January 2018. The five 25 January 2018 opinions and awards filed in the consolidated cases each contain findings of fact common to all claims, which also include the ultimate findings and conclusions of law common to all claims. Following the common findings and conclusions, each of the five opinions and awards before us contain findings of fact and conclusions of law sections that are specific to each individual Bellwether Plaintiff, as well as the Commission's rulings denying each of the Bellwether Plaintiffs’ claims.

Bellwether Plaintiffs appealed, and Plaintiffs and Defendant filed a motion with this Court on 30 May 2018 requesting consolidation of the bellwether cases for appeal.⁸ This Court ordered that a single record be submitted for all five bellwether cases, and that: "The parties shall each submit one general brief addressing common issues and five specific briefs addressing...