Defense Verdicts Upheld in ‘Bellwether’ Asbestos Cases, Impacting Claims by 150 Continental Tire WorkersSeptember 17, 2019
A Fox Rothschild litigation team led by Lisa Kaminski Shortt and Jeri Whitfield secured a resounding victory in a group of asbestos-related workers compensation cases against Continental Tire (formerly General Tire) when the Court of Appeals of North Carolina upheld verdicts in five “bellwether cases” that said none of the company’s workers were exposed to harmful levels of asbestos on the job.
The court’s 82-page decision in Hinson v. Continental Tire will directly impact nearly 150 pending cases because both sides agreed that the evidence in the bellwether trial would be “universally applicable” to all the cases. The three-judge panel was unanimous and issued four shorter opinions upholding the other four verdicts.
Shortt said: “This ruling is an important vindication for Continental Tire, which has maintained throughout more than a decade of litigation that it did not expose its workers to harmful levels of asbestos. We are gratified that both the appellate court and the North Carolina Industrial Commission engaged in such a painstaking analysis of the facts and, in the end, recognized that the evidence supported Continental Tire’s assertion.”
In the 37-day trial, Shortt and Whitfield proved that Continental Tire did not expose any employees to an increased risk of asbestos-related diseases, and that lawyers for the plaintiffs used a system of mass screenings to make borderline diagnoses of asbestosis not otherwise supported by Plaintiffs’ medical records or their treating physicians.
Testimony from defense expert witnesses and pathological examination of lung tissue of 5 long term workers definitively proved that plaintiffs did not have asbestosis nor any significant exposure to asbestos. These pathological findings proved which party’s experts were credible. One defense expert, Dr. Victor Roggli, testified that tire plant workers typically are not exposed to any greater risk of asbestosis than the general public.
Early in the litigation, Continental Tire offered to pay for high-resolution CT scans of every living plaintiff, which would have provided more reliable radiological evidence of the existence of asbestosis than the outdated x-rays relied upon by plaintiffs’ experts, but the plaintiffs’ lawyers refused to agree to the tests.
In the unanimous appellate court opinion, authored by Chief Judge Linda McGee, the court ruled that plaintiffs' refusals to agree to certain more accurate medical procedures was valid evidence for the North Carolina Industrial Commission to consider when it rejected all of the plaintiffs' claims.
Whitfield and Shortt were assisted in the litigation and appeal by Fox attorneys Matt Leerberg, Kip Nelson and Beth Scherer, with assistance from Tammy Brogan, Philip Cox, Carol Davis, David Gomez, Kathy Hawkins, Linda Hayes and Martina Lee.