By: Jeri Whitfield and Lisa Shortt, Fox Rothschild, LLP
In five opinions authored by Chief Judge Linda McGee, with concurrences by Judges Dietz and Collins, the North Carolina Court of Appeals affirmed the Industrial Commission and found that Continental Tire The Americas (Continental) did not expose its employees to asbestos sufficient to cause any of the employees’ alleged asbestosis or asbestos-related cancers. The Hinson opinion applies to over 150 workers’ compensation cases filed in 2008, following the closure of Continental’s Charlotte tire manufacturing plant.
The Plaintiffs filed occupational disease claims with the Industrial Commission alleging they suffered from asbestosis and/or asbestos related cancers as a result of exposure to asbestos materials inside the tire manufacturing plant. Plaintiffs obtained these diagnoses of asbestosis and/or asbestos related cancers in 2008 following mass screening exams organized by Wallace & Graham. They alleged they were exposed to asbestos in all areas of the plant due to damaged or deteriorated asbestos-containing pipe insulation, manipulation and handling asbestos-containing gaskets, brake dust on forklifts, and exposure to asbestos-contaminated talc. Based on decades of epidemiologic and industrial hygiene studies, Continental argued that even if Plaintiffs’ claims of exposure were true, such minute, episodic exposures would not be sufficient to cause or contribute to asbestosis or asbestos related diseases. Moreover, based on its own medical experts and the Plaintiffs’ own treating physicians, Continental denied that the diagnoses of asbestosis were valid. Having multiple manufacturing facilities around the world from which there were no claims of asbestosis, Continental denied that working in its North Carolina facility could cause the asbestosis epidemic being claimed, and sought a full trial on the scientific issues.
Consolidation provided an efficient way to address common questions arising in the claims. The Commission consolidated the cases and established a procedure to allow the parties to take depositions and have expert witnesses testify live, unlike most Industrial Commission cases. Given the volume of cases, the parties presented a full trial on liability using five Bellwether Plaintiffs selected by the Plaintiffs’ counsel to represent the long-term employees from various areas of the plant. As noted by the Court of Appeals, this procedure flipped the normal progression by deciding the issue of Continental’s liability first, rather than determining whether the Plaintiffs had the disease claimed. Thus, the trial addressed the work-related issues common to the consolidated Plaintiffs and the relevant scientific and medical research to determine whether the type, quantity, and duration of the alleged exposures to asbestos at the plant could cause or contribute to any asbestos-related diseases. At the outset, the parties agreed that the liability holding would be applicable to all Plaintiffs.
The cases were heard by Deputy Commissioner Stephen Gheen on a special-set basis at various locations over the course of 38 days of live testimony, most of which involved expert witnesses, beginning in February 2011 and concluding in February 2013. When the trial was nearly complete, Plaintiffs’ introduced new allegations that the talc used by Continental was contaminated with asbestos (it wasn’t)—thus resulting in a mini-trial on Vermont talc.
The diagnoses of asbestosis were based on borderline B-reads of poor quality x-rays. A battle of the experts as to whether the Plaintiffs had the disease claimed ensued. However, all parties agreed that although experts may occasionally vary in interpreting an x-ray, that to have over a hundred cases where the defense experts viewed the radiology as normal and the Plaintiffs’ experts found abnormalities does not indicate a difference of opinion; it indicates bias. Most of the Plaintiffs’ diagnoses of asbestosis were based on 1/0 B-readings of their chest x-rays as “consistent with asbestosis,” although a score of 1/0 is a borderline determination. The same radiographs were read by defense experts who rated them as 0/0 or completely normal. When real abnormalities were found by chest x-ray, Plaintiffs’ experts ignored the medical conditions reflected in Plaintiffs’ medical records as the actual cause (i.e. pneumonia, rib fractures, etc.) and attributed all abnormalities to asbestosis. Because B-readers are trained to read x-rays to a standard and a difference of 0/0 to 1/0 is an unacceptable result, the Commission agreed that this consistent disparity raised the issue of B-reading bias by one side.
Pathology showed which experts were reliable. Thus, when several Plaintiffs died of unrelated conditions, over Plaintiffs’ objections, Continental sought and obtained a standing order to be allowed to obtain autopsies and lung samples, which allowed Continental to obtain definitive pathological evidence of the absence of asbestosis. The medical experts agreed that the only definitive way to diagnose asbestosis is by pathology. However due to the risks involved the procedure is not done while the patient is alive, it is performed at autopsy. In several cases, Plaintiffs’ counsel failed to notify Defendant that a claimant died prior to burial. Nonetheless, Defendant obtained lung tissue from Bellwether Plaintiff Hinson (who was alleged to have been the most heavily exposed employee in the plant) and four other long-term employees who worked in various areas of the plant. The lung tissue analyses revealed that none of the five claimants had asbestosis and none of the five claimants had a level of asbestos fibers in their lungs indicative of an occupational exposure to asbestos. Plaintiffs’ only medical rebuttal to the pathology evidence was offered by Dr. Arthur Frank, an occupational medicine physician. He did not look at the pathology reports, but he artfully opined: I would say a radiologic diagnosis combined with a history of exposure is adequate. He also opined that radiology was superior to pathology at diagnosing asbestosis.
The Motion to Compel High Resolution CT Scans to address the conflict among experts: In addition to the consistent disparity of B-reads, which by definition are meant to be read to a consistent standard, Plaintiffs’ x-rays also failed to show other markers of asbestos. Generally 80% of people diagnosed with asbestosis will have bilateral pleural plaques. However, Plaintiffs’ experts in these cases only identified about 10% of the Plaintiffs as having any pleural plaques (findings also disputed by Defendant’s experts). This is statistically improbable. Plaintiffs’ counsel also instructed Plaintiffs to refuse high resolution CT scans, which scans are standard practice in actual cases of suspected asbestosis because a high resolution CT scan allows a superior view of the lungs. In an effort to overcome the bias, early in the proceedings Continental requested the parties agree to an expert chosen by the Commission to B-read the x-rays or agree to another unbiased procedure. Plaintiffs refused. Defendant then moved to require the Plaintiffs to submit to high-resolution CT scans at its expense and agreed to be bound by the opinions of an independent expert chosen by the Commission. Again, Plaintiffs objected. The Commission noted that the Plaintiffs’ refusal could “cut both ways.” The Court held that the Industrial Commission could consider that Plaintiffs had the burden of proof. Plaintiffs’ refusal to agree to certain more accurate medical procedures was also proper to consider.
Holding: The Industrial Commission determined that conditions at Continental could not have exposed any of the employees to airborne asbestos of a type and in a sufficient amount as to cause or contribute to asbestosis or other asbestos-related disease. This finding eliminated all of the claims due to lack of causation and “last injurious” exposure. The Court of Appeals found ample evidence supporting the Industrial Commission ruling.
Practice Hints
Is there a question of disability? Most of the Plaintiffs had 1/0 B-reads (a borderline diagnosis) with a Class I AMA impairment—which is normal lung function. The Court analyzed the compensability of occupational diseases under the statute and stated that the employee must not only have an occupational disease, it must result in disability. Query whether a Class I AMA lung function (normal) indicates any disability?
The amount of exposure impacts causation. The Court analyzed the question of exposure dose as impacting the Commission’s causation analysis: (1) Was the exposure sufficient to be a “significant causal factor” in the development of Plaintiffs’ alleged asbestosis; and (2) was the exposure “significantly greater” than the background environmental exposure. . . . If the answer to either of these questions was “no,” then any alleged asbestos-related diseases could not be causally linked to work at the factory. Continental introduced pre-abatement air monitoring surveys and many other surveys showing no evidence of asbestos in the plant air and dust levels well below OSHA permissible exposure limits.
Live expert testimony. The Deputy Commissioner commented that having the expert witnesses testify live was superior to just providing depositions. It allowed him to clarify any questions raised and evaluate credibility.
Colon cancer and tonsil cancer. These conditions were found to be ordinary diseases of life to which the general public was equally exposed and not occupational diseases. The record contains expert testimony regarding both cancers and the literature regarding any causal relationship to asbestos exposure.
Hinson v. Continental Tire The Americas, 832 S.E.2d 519, 2019 WL 4168922
Welch v. Continental Tire The Americas, COA18-769, 2019 WL 4168915 (NC Ct. App. Sept. 3, 2019) unpublished
Epps v. Continental Tire The Americas, COA18-768, 219 WL 4168914 (NC Ct. App. Sept. 3, 2019) unpublished
Wilson v. Continental Tire The Americas, COA18-766, 2019 WL 4168910 (NC Ct. App. Sept. 3, 2019) unpublished
Newell v. Continental Tire The Americas, COA18-767, 2019 WL 4168912 (NC Ct. App. Sept. 3, 2019) unpublished
Dr. Andrew Ghio, Dr. Michael Alexander, Dr. Phil Goodman, Dr. Peter Barrett
Frank Dep. (07/21/2015) p. 43.
Id. p. 65.
Id. p. 68,
Id. pp. 28-30.
Id. pp. 44-5.
