Funderburk v. Cont'l Tire The Ams.

• Court: Court of Appeals of North Carolina
• Decided: September 3, 2025
• Docket: 24-192
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-192

Filed 3 September 2025

N.C. Industrial Commission, I.C. No. 14-716075

DEBRA GAIL M. FUNDERBURK, Widow and Administratrix of the Estate of MARION RALPH FUNDERBURK, Deceased Employee,

Plaintiff,

v.

CONTINENTAL TIRE THE AMERICAS, Employer, self-insured, and GENERAL TIRE, INC./GENCORP, INC., Employer, LIBERTY MUTUAL INSURANCE. COMPANY, Carrier,

Defendants.

Appeal by Plaintiff from Opinion and Award entered 13 November 2023 by the

North Carolina Industrial Commission. Heard in the Court of Appeals 5 November

2024.

Wallace and Graham, P.A., by Edward L. Pauley, for Plaintiff-Appellant.

Fox Rothschild LLP, by Jeri L. Whitfield, Kip David Nelson, and Patrick M. Kane, for Defendant-Appellee Continental Tire the Americas.

Mullen Holland & Cooper, P.A., by John H. Russell, Jr., for Defendant-Appellee Liberty Mutual Insurance Company.

HAMPSON, Judge.

Factual and Procedural Background FUNDERBURK V. CONT’L TIRE THE AMERICAS

Opinion of the Court

Debra Gail M. Funderburk (Plaintiff) appeals from the Opinion and Award of

the North Carolina Industrial Commission (the Commission) dismissing her workers’

compensation claim on behalf of the estate of Marion R. Funderburk (Decedent).

Plaintiff’s claim alleges Decedent suffered from his exposure to asbestos during his

employment with Continental Tire the Americas (Defendant). Decedent was

diagnosed with and died of lung cancer. The Commission dismissed the case,

concluding Plaintiff’s claim was barred by Commission orders in five “bellwether”

cases in which the Commission found that claimants had failed to meet their burden

of showing the asbestos level in the factory was sufficient to cause their alleged

asbestos-related diseases. Plaintiff appeals from the dismissal of her claim.

The Record tends to show the following:

Defendant and its predecessor operated a tire manufacturing factory in

Charlotte from the 1960s until 2006. 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 (the

Consolidated Cases).

Due to the number of claimants and the common issues among them, the

parties agreed to a “bellwether” procedure. In 2010, prior to the filing of Plaintiff’s

individual claim in 2014, the parties agreed that six representative cases (the

2 FUNDERBURK V. CONT’L TIRE THE AMERICAS

Bellwether Cases) would be tried first. As described in the Opinion and Award

resolving the Bellwether Cases, the parties agreed all evidence regarding general

issues common to all claims was to be part of the record for all Consolidated Cases

“to the extent the evidence was applicable to each Plaintiff’s issues.” Fully resolving

the Bellwether Cases, including any appeals, before litigating the remaining cases

was intended to ensure “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.” This

agreement, entered into while the case was assigned to Deputy Commissioner George

Glenn II, was not at that time memorialized in a written order.

Deputy Commissioner Stephen Gheen substituted for Deputy Commissioner

Glenn prior to any evidence being taken. The Bellwether Cases were tried in a

consolidated manner before Deputy Commissioner Gheen over thirty-eight hearing

days beginning 14 February 2011 and concluding 18 February 2013. During these

hearings, the parties presented evidence specific to the Bellwether Cases as well as

evidence relating to issues common to all Consolidated Cases, including common

theories of asbestos exposure. The parties did not present evidence specific to any of

the non-Bellwether plaintiffs.

On 1 July 2011, while the Bellwether Cases were being heard, Plaintiff’s

counsel moved that an additional six cases be consolidated and set for hearing. That

3 FUNDERBURK V. CONT’L TIRE THE AMERICAS

motion argued the Commission “indicated that the cases will be tried in groups of six

or more” and that “[i]it would now be appropriate to schedule the hearings for the

second group of claimants.” Defendant opposed the motion and moved to consolidate

all of the pending cases for the purpose of addressing liability issues and to stay

further trials pending appeal of the Bellwether Cases. Defendant argued the motion

was at odds with the bellwether arrangement: the parties had agreed to fully resolve

the Bellwether Cases before proceeding on the others because there was common

evidence which could be used in all cases, and the resolution of the Bellwether cases

would put the parties in a better position to resolve most cases without further

hearings. Any case with “special issues” could then be tried on the special issues only.

On 25 August 2011, Deputy Commissioner Gheen denied the plaintiffs’ motion to

consolidate six additional cases for hearing.

On 29 September 2011, Deputy Commissioner Gheen held a hearing on

Defendant’s motion to consolidate and conferenced with counsel for the parties.

During the hearing, the Deputy Commissioner proposed a plan to consolidate the

non-Bellwether cases for hearing. Following the resolution of the Bellwether Cases,

the parties would appear before the Deputy Commissioner and present additional

evidence in the cases that could not be resolved upon only the evidence introduced in

the Bellwether Cases. Again, no order was entered concerning the bellwether

procedure. The Deputy Commissioner granted Defendant’s motion and consolidated

the Bellwether Cases with the other 146 cases. The only order entered appearing to

4 FUNDERBURK V. CONT’L TIRE THE AMERICAS

concern this plan was entered by Deputy Commissioner Gheen on 29 November 2011.

That order recognized that the Bellwether Cases had been consolidated with the 146

other claims and ordered that “the common testimony taken and developed during

the course of [the evidentiary hearings in the Bellwether Cases] will be admissible in

all consolidated claims.”

One of the Bellwether Plaintiffs voluntarily dismissed their claims during the

hearing period, leaving five Bellwether Cases for the Commission to resolve.

Decedent was diagnosed with lung cancer in 2012 and died on 2 January 2013.

On 4 March 2014, following the evidentiary hearings in the Bellwether Cases but

before the Deputy Commissioner’s Opinion and Award resolving those cases, Plaintiff

initiated this case by filing a Form 18B Claim by Employee, Representative, or

Dependent for Benefits for Lung Disease. The filing asserted a claim for asbestosis,

lung cancer, and death as a result of Decedent’s employment with Defendant.

After most of the evidence had been presented in the Bellwether Cases, Deputy

Commissioner Gheen resigned from the Commission, and the Consolidated Cases

were assigned to Deputy Commissioner James C. Gillen on 15 April 2015. On 26

October 2016 the parties, including Plaintiff, entered into a consent order stipulating

that no parties objected to the case being decided by Deputy Commissioner Gillen

despite the majority of evidence having been originally heard by Deputy

Commissioner Gheen.

5 FUNDERBURK V. CONT’L TIRE THE AMERICAS

On 19 December 2016, Deputy Commissioner Gillen entered an order denying

the claims of the Bellwether Plaintiffs. Those plaintiffs appealed to the Full

Commission, which on 25 January 2018 by Opinion and Award upheld the deputy

commissioner’s denial of the claims in the five Bellwether Cases.

In its Opinion and Award, the Full Commission made findings specific to each

of the Bellwether Plaintiffs, as well as findings common to all claims, which ostensibly

included all Consolidated Plaintiffs.1 It found, based on the common evidence, the

Consolidated Plaintiffs had not shown they were “exposed to asbestos in such form

and quantity and used with such frequency as to cause or significantly contribute to

the development of asbestosis.” It found they were not exposed to levels of asbestos

significant enough to support a claim from damaged pipe insulation in the facility or

through working with talc, asbestos-containing gaskets, or asbestos-containing

brakes. Two of the Bellwether Plaintiffs had asserted claims for colon and tonsil

cancer, and the Commission found generally that working at Defendant’s facility did

not place employees at an increased risk of developing tonsil or colon cancer.

The Industrial Commission also made individual conclusions of law specific to

each of the five Bellwether Plaintiffs. For each Bellwether Plaintiff, it denied their

claims based on its determination that plaintiff had not shown they were “exposed to

asbestos in any such form and quantity, and used with such frequency, as to cause

1 The Opinion and Award captions these as “Findings of Fact Common to All Claims Captioned

in Exhibit 1.” This Exhibit lists all Consolidated Plaintiffs, including Plaintiff.

6 FUNDERBURK V. CONT’L TIRE THE AMERICAS

asbestosis or any asbestos-related condition,” and that they had not shown that they

actually contracted asbestosis or any asbestos-related condition.

The Bellwether Plaintiffs appealed, and this Court affirmed the Opinion and

Award of the Full Commission. Hinson v. Continental Tire the Americas, 267 N.C.

App. 144, 832 S.E.2d 519 (2019). We held the Full Commission did not err in:

(1) Determining Plaintiffs failed to prove a causal connection between employment at the factory and asbestosis; (2) its determination, based upon the facts presented, that Plaintiffs failed to prove that either colon cancer or tonsil cancer were occupational diseases pursuant to N.C.G.S. § 97-53(13); or (3) its unchallenged determination that Plaintiffs were not last injuriously exposed to the hazards of asbestosis at the factory. Further, we hold that the Commission's findings and ultimate findings are supported by competent evidence, and its conclusions and rulings are supported by the findings.

267 N.C. App. at 202-03, 832 S.E.2d at 558.

Following the resolution of the Bellwether Cases on appeal, Defendant moved

to dismiss the asbestos-related claims of the remaining 139 Consolidated Plaintiffs.

125 of the Consolidated Plaintiffs voluntarily dismissed their claims, leaving 14

pending claims. These cases were transferred to Deputy Commissioner Erin F. Taylor

for disposition of Defendant’s Motion to Dismiss. Deputy Commissioner Taylor held

a hearing on that Motion at which the parties were not permitted to present

additional evidence. The Deputy Commissioner entered an order on 6 July 2022

granting Defendant’s motion with respect to all claims for asbestosis but denying it

with respect to lung cancer, mesothelioma, and other asbestos-related diseases.

7 FUNDERBURK V. CONT’L TIRE THE AMERICAS

Defendant appealed to the Full Commission, and the parties filed a joint motion to

consolidate the cases for that appeal. The Commission ordered the cases to be heard

concurrently, but did not consolidate them.

On 13 November 2023, the Full Commission entered an Opinion and Award

dismissing all of Plaintiff’s claims, holding they were precluded by the results of the

Bellwether Cases. It simultaneously dismissed the asbestos-related claims of the

other remaining Consolidated Plaintiffs. In all, thirteen plaintiffs appealed to this

Court, including two plaintiffs with related cases which were not among the

Consolidated Plaintiffs but whose claims were similarly dismissed by the

Commission. Our Court consolidated the appeals for hearing.

Issue

Did the Industrial Commission err in holding Plaintiff’s claims were precluded

by its decision in the Bellwether Cases and dismissing her case?

Analysis

Our review of an Opinion and Award from the Industrial Commission is

limited to determining whether the findings of fact are supported by competent

evidence and whether the conclusions of law are supported by the findings of fact.

Braham v. Food World, Inc., 300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980). We review

the Commission’s conclusions of law de novo. Bond v. Foster Masonry, Inc., 139 N.C.

App. 123, 127, 532 S.E.2d 583, 585 (2000). Under de novo review, we consider the

8 FUNDERBURK V. CONT’L TIRE THE AMERICAS

matter anew and freely substitute our own judgment for that of the lower tribunal.

State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008).

The Industrial Commission held Plaintiff’s claims were precluded by its

findings in the Bellwether Cases as affirmed by this Court on appeal:

The Full Commission concludes that the issue Plaintiff Funderburk wishes to pursue (i.e., asbestosis) was decided by the Court of Appeals’ September 3, 2019, opinion. In Hinson, the Court specifically held that asbestos exposures at Defendant’s tire factory did not exceed background levels to which the general public was exposed, and therefore Plaintiffs could not prove an increased risk of contracting asbestosis or any asbestos-related disease during any period of employment at the facility. Hinson, 267 N.C. App. at 197, 832 S.E.2d at 554. The Court also held that Plaintiffs failed to prove a causal connection between employment at the factory and asbestosis or asbestos-related disease. Id. at 204, 832 S.E.2d at 559. None of the parties to the Bellwether cases appealed the September 3, 2019, opinion, and therefore, these holdings became the law of the case, which the Full Commission is without authority to revisit.

The Commission held Plaintiff was both collaterally estopped from pursuing her

claim and that our holding in Hinson became the “law of the case,” preventing her

from showing liability. On appeal, Plaintiff argues she cannot be bound by the

decisions in the Bellwether Cases because she was not a party to those cases and

because her claims are distinct from those asserted in those cases. She emphasizes

that, in the Bellwether Cases, evidence was introduced as to theories of causation

common to all plaintiffs and information specific to the Bellwether Plaintiffs’

individual claims, but the remaining Consolidated Plaintiffs had no opportunity to

9 FUNDERBURK V. CONT’L TIRE THE AMERICAS

introduce evidence specific to their own claims and should be allowed to introduce

such evidence. Defendant argues our decision in Hinson forecloses Plaintiff’s claims,

as do the common law doctrines of claim and issue preclusion.

Defendant’s argument and the holding of the Opinion and Award are based in

framing the bellwether procedure employed in this case as one that controls the

outcome in all the Consolidated Cases, or at least places Plaintiff in privity with the

Bellwether Plaintiffs such that her claims are precluded under common law doctrines

of preclusion. Because Defendant argues any preclusion stems from the relationship

between Plaintiff’s case and the Bellwether Cases, 2 we address that posture for

context before individually addressing collateral estoppel and the doctrine of law of

the case. We note that during the pendency of the Bellwether Cases no order was

entered describing their relationship to the remaining Consolidated Cases, and in

particular no order was entered implying decisions made in the Bellwether Cases

would bind the remaining plaintiffs. The extent of written orders concerning the trial

plan appears to be the 29 November 2011 Order entered by Deputy Commissioner

Gheen, who heard the bulk of the evidence but resigned from the Commission before

ruling on the cases. This Order provides only that the “common testimony” presented

in the Bellwether Cases will be admissible in all Consolidated Cases, and does not

2 Defendant states in its brief: “Continental is not saying that it is absolved from all liability

henceforth and forever. Instead, Continental’s position is that the result of the bellwether trial in this consolidated proceeding, upheld by this Court, binds these Plaintiffs and precludes them from pursuing claims against Continental for asbestos-related diseases.” (emphasis in original)

10 FUNDERBURK V. CONT’L TIRE THE AMERICAS

address preclusion or the effect of any case on the others.

In the absence of a clarifying written order, we look first to the concept of

bellwether cases generally to inform our analysis of whether the Bellwether Cases

have a preclusive effect, and then with that context address common law doctrines of

preclusion.

I. Bellwether Cases

“Bellwether” cases are sometimes used to streamline mass tort litigation

involving numerous plaintiffs that cannot be resolved in a single class-action suit. A

small, ideally representative, sample is chosen from a larger group of cases. These

bellwether cases are heard and resolved first, with the intent to educate the parties

to the non-bellwether cases as to the value of those claims and enable quicker

resolution of those cases. See Aabbott v. E.I. DuPont de Nemours and Co., 54 F.4th

912, 919 n.3 (6th Cir. 2022) (citing Eldon E. Fallon et al., Bellwether Trials in

Multidistrict Litigation, 82 Tul. L. Rev. 2323, 2343 (2008) (explaining the “twin goals”

of bellwether trials are to be “informative indicators of future trends [in other cases]

and catalysts for an ultimate resolution”); In re FEMA Trailer Formaldehyde Prod.

Liab. Litig., 628 F.3d 157, 159, n. 1 (5th Cir. 2010) (“ ‘Bellwether’ trials typically are

used to assess whether a class should be certified or to assess a claim’s value for

settlement purposes[.]”). The bellwether cases provide the remaining plaintiffs with

a better understanding of their likelihood of success, and encourage the parties to

resolve their cases out of court: “If a representative group of claimants are tried to

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verdict, the results of such trials can be beneficial for litigants who desire to settle

such claims by providing information on the value of such cases as reflected by the

jury verdicts.” In re Chevron, 109 F.3d 1016, 1019 (5th Cir. 1997).

Defendant argues the bellwether procedure goes beyond information-

gathering, such that resolving the Bellwether Cases was not only intended to educate

the parties and facilitate resolution of the remaining cases, but also “to establish law

that would be binding on the parties in the non-bellwether cases.”

As bellwether cases are primarily applicable to mass tort litigation outside of

the class action context, their use appears to be relatively rare. The parties have not

cited, and we are not aware of, any caselaw from North Carolina courts addressing

the use of bellwether cases. The procedure is more commonly used in the federal

courts, particularly when multi-district litigation is consolidated before a single

district court for hearing. See, e.g., Aabott, 54 F.4th 912. We therefore find it

instructional to look to the use of bellwether cases in other jurisdictions, especially in

federal decisions cited by the parties. Although these opinions are not binding on our

decision in this case, they are useful in defining the concept of “bellwether cases” and

understanding the intent of the parties and Industrial Commission in their use of

that phrase. As we discuss below, our review of this caselaw reveals a clear

understanding of bellwether cases as exploratory litigation intending to provide

information to the remaining parties to assist in resolving their claims, not as

decisions that bind those parties by their results. In rare cases a trial court may

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prospectively implement a “binding bellwether” scheme, but the restrictions and

stringent requirements placed on such a scheme underscore that bellwether cases in

general are not understood to have preclusive effect. In arguing otherwise, Defendant

misstates the holdings of several cases.

For example, to support its claim that “the very purpose of the bellwether

procedure was to establish law that would be binding on the parties in the non-

bellwether cases,” Defendant cites a case from the California Court of Appeals, St.

Paul Fire & Marine Ins. Co. v. Amerisource Bergen Corp., 295 Cal.Rptr.3d 400 (Cal.

Ct. App. 2022). However, that case does not address the preclusion of claims or issues

in mass tort litigation based on the results of bellwether cases. Instead, the appellate

court in St. Paul affirmed a stay imposed by the trial court, holding it was warranted

due to pending litigation in West Virginia addressing similar issue with a significant

overlap of parties. 295 Cal.Rptr.3d at 413.

It is clear from the text of the opinion that the appellate court in that case does

not infer preclusive effect to bellwether cases as a result of their bellwether status.

While the West Virginia cases may have had preclusive effect over certain identical

claims in California, that preclusion did not stem from the bellwether relationship

but from traditional doctrines of claim and issue preclusion in cases with identical

parties. Id. As the court noted, for certain claims “differences in the parties limit the

res judicata effect of the WV coverage proceedings for parties here who are absent

there[.]” Id. Where the parties were not identical, the West Virginia cases would

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provide useful information: “[t]he bellwether effect remains the same under such

circumstances; the West Virginia case can serve to educate the parties (whether or

not the same) and the trial court about the issues and how to streamline the litigation

here.” Id. The court emphasizes the exploratory nature of bellwether litigation:

“Employing a bellwether case in a complex matter like this can serve to winnow and

sharpen not only discovery, but claims, defenses, calendaring decisions, motion

practice, arguments, hearings or trial, adjudication, indeed every aspect of the

litigation process—to the benefit of the parties, the court, and the public alike.” 295

Cal.Rptr.3d at 411-412. This function is served even though bellwether cases do not

bind later litigation: “The WV coverage action provides a bellwether litigation model

for the parties to adhere to—or depart from—as they choose; the same is true for the

court in its adjudicative choices, as justice requires.” 295 Cal. Rptr. 3d at 413

(emphasis added). This case does not recognize any special preclusive effect of

bellwether cases.

Defendant argues “rulings from a bellwether case are appropriately applied to

remaining cases,” citing In re Lipitor Mktg., Sales Pracs. & Prods. Liab. Litig., 892

F.3d 624 (4th Cir. 2018). In that case, the plaintiffs in bellwether cases attempted to

introduce testimony from three expert witnesses regarding a causal link between the

medication Lipitor and diabetes. 892 F.3d at 630. The trial court ruled the testimony

of all three experts in the bellwether cases was inadmissible and granted summary

judgment to the defendant in those cases because the remaining evidence did not

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establish a genuine issue of material fact as to causation. 892 F.3d at 647. The trial

court then entered a series of show cause orders “asking whether any plaintiff in the

MDL3 could submit evidence (expert or otherwise) that would enable her claim to

survive summary judgment given the court’s prior rulings.” Id. at 630. No plaintiff

was able to introduce evidence sufficient to show causation. Id. at 631. The Fourth

Circuit affirmed the trial court’s grant of summary judgment to the defendant in the

MDL cases. Id. at 649

This process followed by the trial court in Lipitor does not demonstrate that

bellwether cases have preclusive effect and, in fact, represents exactly the process

Plaintiff argues should be followed in this case. The bellwether plaintiffs in Lipitor

introduced common evidence, which was insufficient to prove liability. The remaining

plaintiffs, understanding from the outcome of the bellwether cases that their common

evidence was insufficient, were then given an opportunity to introduce additional

evidence, including evidence specific to their claims. The court evaluated that

evidence, determined it did not raise an issue of genuine material fact, and

appropriately granted summary judgment based on that determination. The outcome

of the bellwether cases did not control the outcome of the remaining cases, though it

informed the litigation process.

Like in Lipitor, the parties understand as a result of the Bellwether Cases that

3 In “multi-district litigation,” related claims are consolidated in a single district for pretrial

proceedings to streamline litigation. 28 U.S.C. § 1407 (2024).

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the common evidence in this case is insufficient to support a claim. Accordingly, 125

of the plaintiffs in the remaining Consolidated Cases voluntarily dismissed their

claims, implying that their cases relied on the common evidence to show liability.

This left only Plaintiff and those other claimants similarly situated, whose cases

presumably involve additional theories of causation and liability. Unlike in Lipitor,

Plaintiff has not been given an opportunity to present additional evidence supporting

these theories and had her case discharged on Defendant’s Motion to Dismiss—based

on preclusion, and not the merit of her evidence.

Defendant also cites Bay v. Anadarko E&P Onshore LLC, 73 F.4th 1207 (10th

Cir. 2023) to support its contention that rulings in a bellwether case are binding on

other plaintiffs. This case is wholly irrelevant to that argument: Bay is an appeal by

the bellwether plaintiffs in a mass trespass action by landowners against the oil and

gas company holding the mineral rights to their land. 73 F.4th at 1209. The opinion

affirms the district court’s judgment as a matter of law in only the individual

bellwether case on appeal before the court. 73 F.4th at 1210. The other plaintiffs in

the putative class were not party to the appeal, and no issue of preclusive effect of the

decision over the other cases is raised by the parties or addressed in the opinion.

Finally, the case Defendant uses to define the term “bellwether” illustrates

that the existence of a bellwether case may potentially have some binding effect on

other cases, but requires specific actions by the trial court in order to assure all

parties due process—actions which were not taken in this case. In re Chevron U.S.A.,

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Inc., like the other cases cited by Defendant, at no point holds a case at issue is bound

by the result of a bellwether case. Instead, it addresses the trial court’s plan for

hearing a group of tort claims on interlocutory appeal prior to those cases being heard.

109 F.3d 1016, 1019 (5th Cir. 1997). In Chevron, over 3,000 plaintiffs filed claims

against the defendant for contaminating their property. 109 F.3d at 1017. The district

court approved of a trial plan by which a bellwether group of 30 cases, 15 selected by

the plaintiff and 15 selected by the defendant, would be heard in a single trial. Id.

The trial would focus on the individual claims and “the existence or nonexistence of

liability on the part of Chevron. . . . Thus, a unitary trial on the issues of general

liability or causation as well as the individual causation and damage issues of the

selected plaintiff shall occur.” Id. at 1019.

The Fifth Circuit in Chevron rejected the trial court’s plan and promulgated a

list of requirements for a bellwether trial to have preclusive effect, proposing a special

“binding bellwether” trial that is “conceptually separate from issue preclusion

because the initial court running the bellwether determines its preclusive effect in

advance of any subsequent litigation.” Du Pont, 54 F.4th at 927-28 (emphasis added)

(citing Zachary B. Savage, Scaling Up: Implementing Issue Preclusion in Mass Tort

Litigation Through Bellwether Trials, 88 N.Y.U. L. Rev. 439, 453–54, 456–57 (2013)).

In order to create this special “binding bellwether” scheme, the trial court before

hearing the bellwether cases should identify the common issues to be resolved as well

as variables that could exist between different claims in the litigation such as “time,

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proximity, and contamination levels of exposure to any pollutants that may be

present[.]” 109 F.3d 1016, 1019. It should also explain how the verdicts in the

bellwether cases are “supposed to resolve liability for the remaining . . . plaintiffs.”

Id. Most importantly, the trial court must find the bellwether cases are a statistically

representative sampling of all the plaintiffs’ claims:

[B]efore a trial court may utilize results from a bellwether trial for a purpose that extends beyond the individual cases tried, it must, prior to any extrapolation, find that the cases are representative of the larger group of cases or claims from which they are selected. Typically, such a finding must be based on competent, scientific, statistical evidence that identifies the variables involved and that provides a sample of sufficient size so as to permit a finding that there is a sufficient level of confidence that the results obtained reflect results that would be obtained from the trials of the whole.

Id. at 1020. Additionally, the intent of the parties to be bound by the bellwether cases

must be clear from the proceedings: “Generally, such a procedure requires that the

parties ‘clearly memorialize’ an agreement to be bound in future trials, no matter the

result, to avoid certain due process concerns.” Du Pont, 54 F.4th at 928 n. 8 (citing

Dodge v. Cotter Corp., 203 F.3d 1190, 1200 (10th Cir. 2000)).4

4 We note as well that, even given these safeguards, another panel of the same federal circuit

court noted skepticism concerning the validity of such a binding bellwether scheme: “While the majority opinion . . . contains language generally looking with favor on the use of bellwether verdicts when shown to be statistically representative, this language is plainly dicta, certainly insofar as it might suggest that representative bellwether verdicts could properly be used to determine individual causation and damages for other plaintiffs.” Cimino v. Raymark Indus., Inc., 151 F.3d 297, 318 (5th Cir. 1998). The court in Cimino also notes that such a plan raises concerns related to the Seventh Amendment right to trial by jury, which the Chevron court does not address. 151 F.3d at 319.

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As the court in Chevron saw fit to place such significant procedural

requirements on the trial court in order that a bellwether case could have preclusive

effect, it is clear that bellwether cases are not understood to have that effect by

default. And, without implying that this “binding bellwether” procedure is valid in

our courts, we note that none of the Chevron guidelines exist in this case. With no

order entered in this case, we cannot determine the Bellwether Cases are a

representative sample of the Consolidated Cases, and cannot discern the variables

impacting liability that may differ from case to case. No order was entered indicating

the parties agreed to be bound or that the Industrial Commission understood the

purpose of the bellwether plan to bind the non-Bellwether Plaintiffs: the only order

entered allowed the common evidence to be admissible in all cases.

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. When discussing

the bellwether plan with the parties in conference, Deputy Commissioner Gheen

anticipated additional hearings following the Bellwether Cases, stating “I want to

come back in here as soon as we get a decision,” and proposing locations for taking

additional testimony. As both Deputy Commissioner Gillen and the Industrial

Commission noted in their Opinions and Awards in the Bellwether Cases, after the

Bellwether Cases were heard “[t]he remaining claims would then be in a better

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position to be resolved, or they could proceed to abbreviated hearings for the

introduction of evidence regarding their individual medical and employment

information.” 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.

The status of certain of the Consolidated Cases as bellwether cases did not lend

them the special preclusive effect Defendant asserts. We next look to traditional

common law doctrines of preclusion, which the Opinion and Award of the Industrial

Commission relied on in dismissing Plaintiff’s case.

II. Law of the case

The Industrial Commission held our holding in Hinson became the law of the

case that it was without authority to revisit:

The Full Commission concludes that the issue Plaintiff Funderburk wishes to pursue (i.e., asbestosis) was decided by the Court of Appeals’ September 3, 2019 opinion. . . . None of the parties to the Bellwether cases appealed the September 3, 2019, opinion, and therefore these holdings became the law of the case, which the Full Commission is without authority to revisit.

Under the “law of the case” doctrine, “once an appellate court has ruled on a

question, that decision becomes the law of the case and governs the question both in

subsequent proceedings in a trial court and on subsequent appeal.” Weston v.

Carolina Medicorp, Inc. 113 N.C. App. 415, 417, 438 S.E.3d 751, 753 (1994). Both

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questions of law and issues of fact addressed by the appellate court become the law

of the case. Poindexter v. First Nat’l Bank of Winston Salem, 247 N.C. 606, 618, 101

S.E.2d 682, 691 (1958). For example, in Weston the plaintiff alleged his employer

discriminated against him based on race. 113 N.C. App. at 416, 438 S.E.2d 752. The

trial court found the employer’s actions were not taken on account of race, and on

appeal this Court affirmed the trial court’s ruling, holding there was sufficient

evidence to support that finding. Id. On a subsequent appeal in the same case, the

plaintiff argued the Civil Rights Act of 1991 retroactively entitled him to relief from

judgment, but we held he could not relitigate the issue of racial discrimination

because an appellate court had already ruled on that question, making it the law of

the case. Id.

Only questions that were actually decided by the appellate court bind the

parties: “the doctrine of the law of the case contemplates only such points as are

actually presented and necessarily involved in determining the case.” Hayes v. City

of Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 682 (1956). Statements in appellate

opinions “on points arising outside of the case and not embodied in the determination

made by the court” are obiter dicta and do not determine the law of the case. Id.

The purpose of this doctrine is to prevent the parties from relitigating issues

that have already been resolved in their case. Royster v. McNamara, 218 N.C. App.

520, 530, 723 S.E.2d 122, 129 (2012). This promotes consistency and judicial economy

within a case as it moves between our courts, and the doctrine is limited to

21 FUNDERBURK V. CONT’L TIRE THE AMERICAS

subsequent proceedings in the same action: “Once an appellate court has ruled on a

question, that decision becomes the law of the case and governs the question not only

on remand at trial, but on a subsequent appeal of the same case.” N.C. Nat’l Bank v.

Va. Carolina Builders, 307 N.C. 563, 566, 299 S.E.2d 629, 631 (1983) (emphasis

added).

But Plaintiff’s case was not before this Court when we resolved the appeal of

the Bellwether Cases in Hinson. Although Defendant cites numerous opinions

addressing the doctrine of “law of the case,” none apply it outside the case in which

the appellate ruling was made or to a party who was not party to the appellate

decision. See, e.g., Freedman v. Payne, 252 N.C. App. 282, 800 S.E.2d 686 (2017);

Arizona v. California, 460 U.S. 605, 75 L.Ed. 2d 318 (1983); State ex rel. Regan v.

Wasco, LLC, 269 N.C. App. 292, 837 S.E.2d 565 (2020). At the time of our decision in

Hinson, Plaintiff’s case was still pending before the Industrial Commission. There

was no notice of appeal filed, nor was there a judgment from which to appeal, and we

therefore lacked jurisdiction entirely over Plaintiff’s case. See Crowell Constructors,

Inc. v. Strate ex rel. Cobey, 328 N.C. 563, 563-64, 402 S.E.2d 407, 408 (1991) (“Since

the record does not contain a notice of appeal in compliance with Rule 3, the Court of

Appeals had no jurisdiction of the appeal.”) Accordingly, our ruling in Hinson could

not become the law of this case.

Defendant argues that because the cases were consolidated for trial, Plaintiff

was party to the appeal in Hinson. This argument misunderstands the nature of

22 FUNDERBURK V. CONT’L TIRE THE AMERICAS

consolidation. “When cases are consolidated for trial, although it becomes necessary

to make only one record, the cases remain separate suits and retain their

distinctiveness throughout the trial and appellate proceedings.” Kanoy v. Hinshaw,

273 N.C. 418, 424, 160 S.E.2d 296, 301 (1968) When a court consolidates multiple

actions for judgment, “the actions [do] not become one action. They remain[] separate

suits.” Pack v. Newman, 232 N.C. 397, 400-01, 61 S.E.2d 90, 92 (1950). “Consolidated

cases remain distinct as to parties, pleading and judgment and . . . there must be

separate verdicts, judgments, or decrees.” TOG Properties, LLC v. Pugh, 276 N.C.

App. 422, 426, 857 S.E.2d 535, 539 (2021) (citing Hall v. Hall, 584 U.S. 59, 200

L.Ed.2d 399 (2018)). The fact that there was a joint hearing does not render Plaintiff

a party to an appeal when no order or judgment was made in Plaintiff’s case and

Plaintiff did not notice an appeal.

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.” Hinson, 267 N.C. App. at 151, n. 8, 832 S.E2d at 528. 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. Our remit

in Hinson, as always, was to adjudicate the case before us—in that case, to review

the Industrial Commission’s determinations of causation and liability as to the

Bellwether Plaintiffs. Any language purporting to extend our holding beyond what

23 FUNDERBURK V. CONT’L TIRE THE AMERICAS

was necessary to resolve those issues is therefore dicta: “Language in an opinion not

necessary to a decision is obiter dictum and later decisions are not bound thereby.”

Trs. Of Rowan Tech. Coll. v. J. Hyatt Hammond Assocs., Inc., 313 N.C. 230, 242, 328

S.E.2d 274, 281 (1985).

Additionally, the differences between Plaintiff’s claims and those asserted in

the Bellwether Cases demonstrate there is insufficient identity of issue to support

the preclusion Defendant seeks. An appellate court’s ruling on a question “governs

the question” in subsequent proceedings. Weston, 113 N.C. App. at 417, 438 S.E.3d at

751. It does not govern related but distinct questions or foreclose related but distinct

claims. The issue ruled upon in the appellate court must be the same as that

precluded in the subsequent hearing.

The Industrial Commission ruled only on theories of causation common to all

the Consolidated Plaintiffs and on issues specific to the Bellwether Plaintiffs. Let us

assume the trials of the Consolidated Cases were bifurcated such that the Industrial

Commission, by ruling in the Bellwether Cases, also ruled on an issue presented in

all of the Consolidated Cases. At most, the Commission found the common evidence

did not on its own show any employees had been exposed to sufficient levels of

asbestos to cause asbestosis. It never heard evidence relating to additional theories

of causation specific to other plaintiffs or additional illnesses that may be caused by

lower levels of exposure. It can be inferred that Plaintiff and the other remaining

claimants, because they did not voluntarily dismiss their cases upon learning the

24 FUNDERBURK V. CONT’L TIRE THE AMERICAS

common evidence was insufficient on its own to carry a claim, wish to introduce

additional evidence that raises issues not yet addressed by the Commission. The

Opinion and Award did not address those issues and cannot preclude the remaining

plaintiffs from asserting them. We note that we cannot know what issues these may

be, because the remaining plaintiffs were prevented from introducing evidence

specific to their claims when the Commission allowed Defendant’s Motion to Dismiss.

Even assuming the findings relating to the common evidence bind all the

Consolidated Plaintiffs, they must be allowed to present additional evidence to

distinguish their claims, rather than having their cases dismissed with no

opportunity to assert their specific issues.

III. Collateral Estoppel

In addition to the doctrine of law of the case, the Industrial Commission held

it was bound by collateral estoppel. Collateral estoppel, often referred to as “issue

preclusion,” “is designed to prevent repetitious lawsuits over matters which have once

been decided and which have remained substantially static, factually and legally.”

King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973). Accordingly,

“parties and parties in privity with them . . . are precluded from retrying fully

litigated issues that were decided in any prior determination and were necessary to

the prior determination.” Id. “Law of the case” and collateral estoppel are similar, but

they “differ in one key respect: [collateral estoppel] prevents re-litigation in a future

25 FUNDERBURK V. CONT’L TIRE THE AMERICAS

lawsuit, while the law-of-the-case doctrine prevents re-litigation of an issue in the

same lawsuit.” Fish v. Stetina, 913 S.E.2d 236, 242 (2025).

A party seeking to establish collateral estoppel must show: (1) the earlier suit

resulted in a final judgment on the merits; (2) the issue in question was identical to

an issue actually litigated and necessary to the judgment; and (3) that both the

plaintiff and defendant were either parties to the earlier suit or were in privity with

the parties. Thomas M. McInnis & Assocs. v. Hall, 318 N.C. 421, 429, 349 S.E.2d 552,

557 (1986).

“To determine whether collateral estoppel applies in the present cases, it must

first be decided whether the parties in these suits and those in the former . . .

litigation are the same, or stand in privity to the parties in the former litigation.”

King, 284 N.C. at 357, 200 S.E.2d at 805. Because Plaintiff was not a party to the

Bellwether Cases, we must determine if she was in privity with those plaintiffs. In

general, “privity involves a person so identified in interest with another that he

represents the same legal right.” State ex rel. Tucker v. Frinzi, 344 N.C. 411, 417, 474

S.E.2d 127, 130 (1996). To be in privity, the interests of two parties must be so

intertwined that the estopped party “was fully protected in the first trial” because his

“interest has been legally represented.” Cnty. of Rutherford By & Through Child

Support Enf't Agency ex rel. Hedrick v. Whitener, 100 N.C. App. 70, 76, 394 S.E.2d

263, 266 (1990) (citing 46 Am.Jur.2d Judgments § 686). Accordingly, privity “rests on

some actual mutual or successive relationship to the same right of property.” Masters

26 FUNDERBURK V. CONT’L TIRE THE AMERICAS

v. Dunstan, 256 N.C. 520, 525, 124 S.E.2d 574, 577 (1962) (citing 72 C.J.S. Privities,

956-958). Privity requires “absolute identity of interest,” id., and cannot be

established “from the mere fact that persons may happen to be interested in the same

question or in proving or disproving the same set of facts, or because the question

litigated was one which might affect such other person’s liability as a judicial

precedent in a subsequent action.” Tucker, 344 N.C. 411, 47, 474 S.E.2d 127, 130

(1996) (citing 47 Am.Jur.2d Judgments § 663 (1995).

Here, Plaintiff was not so identified in interest as to establish privity with the

Bellwether Plaintiffs. Their legal interest rested in their workers’ compensation

claims; Plaintiff’s rested in her own, stemming from her husband’s alleged exposure

and injuries. Each plaintiff’s goal in this case was to prove their individual injuries

arose out of and in the course of their employment: the Bellwether Plaintiffs have no

legal interest in Plaintiff’s individual claim. While there is factual overlap between

the claims, the interests are not identical. This difference in legal interest would

remain even if the evidence underlying each claim were identical.5 However,

examination of the actual issues in each case further emphasizes the distinction

between the Plaintiff’s claims and those of the Bellwether Plaintiffs and the legal

interests represented by each.

5 See, e.g., Goins v. Cone Mills Corp., 90 N.C. App. 90, 367 S.E.2d 335 (1988) (holding as widow

was not a party to husband’s claim for lifetime disability benefits she was not collaterally estopped from litigating the issue of total permanent disability in claim for death benefits).

27 FUNDERBURK V. CONT’L TIRE THE AMERICAS

In addition to privity, collateral estoppel requires the precluded issue to be

identical to an issue actually litigated and necessary to the previous judgment. Hall,

318 N.C. at 429, 349 S.E.2d at 557. As Plaintiff was prevented from presenting

evidence to develop her claim, we cannot know exactly the facts she asserts to

establish her husband suffered illness as a result of his employment. But her Form

18B alleges he suffered from lung cancer, unlike any of the Bellwether Plaintiffs. The

Industrial Commission’s findings do not address lung cancer because they are limited

to the illnesses presented by the Bellwether Plaintiffs, primarily asbestosis. While

the Commission found plaintiffs were not exposed to asbestos in sufficient amounts

to contribute to asbestosis, it additionally noted other illnesses, such as

mesothelioma, “generally form at a lower dose” than asbestosis. Additionally,

Plaintiff asserts she was prepared to offer evidence as to additional theories of

exposure specific to Decedent in his individual role as a pipefitter and welder and

therefore never presented by the Bellwether Plaintiffs. Even if the Industrial

Commission had held, as Defendant seems to assert, that there was insufficient

asbestos in the factory to cause any illness to any employee, this was neither litigated

in the Bellwether Cases nor necessary to resolve them. The issues in Plaintiff’s case

are different from those in the Bellwether cases. Because there is no privity and no

28 FUNDERBURK V. CONT’L TIRE THE AMERICAS

identity of issues, collateral estoppel is inappropriate.6

IV. Res judicata

Defendant also argues res judicata bars Plaintiff’s claims. Under res judicata,

or “claim preclusion,” “a final judgment on the merits in a prior action will prevent a

second suit based on the same cause of action between the same parties or those in

privity with them.” Perryman v. Town of Summerfield, 899 S.E.2d 884, 893 (2024).

Where collateral estoppel prevents relitigation of issues actually litigated and

necessary to the outcome of the prior action, res judicata prevents the assertion of

claims that were or could have been asserted in a prior action between the parties or

those in privity with them. Hall at 428, 349 S.E.2d at 556. Like collateral estoppel,

res judicata requires a final judgment on the merits and identity of parties. Id. Rather

than identity of issue, res judicata applies when the case represents “a second action

upon the same claim or demand.”

As discussed above, Plaintiff was neither party to the Bellwether Cases nor in

privity with the Bellwether Plaintiffs. Nor is her claim one that was or should have

been adjudicated in those cases: her claim is a separate workers’ compensation claim

6 If Plaintiff, or any of the remaining consolidated plaintiffs, presents no additional evidence

beyond the common evidence introduced in the Bellwether Cases and no arguments specific to her claim, her claims may be precluded under collateral estoppel. With no specific evidence, her only interest would be in showing the common evidence demonstrated employees were at a higher risk of illness. As this interest was legally represented by the Bellwether Plaintiffs, it may then be the case that (1) they and Plaintiff were in privity because they represent the same legal right, and (2) an identical issue was actually litigated. This satisfies the requirements for invoking collateral estoppel. However, without an opportunity for Plaintiff to provide additional evidence, it is impossible to determine that such identity of issue exists.

29 FUNDERBURK V. CONT’L TIRE THE AMERICAS

for a different employee entirely than those in the Bellwether Cases. Plaintiff’s case

is not barred by the doctrine of claim preclusion.

V. Consent Order

Defendant argues Plaintiff in the 26 October 2016 Consent Order stipulated to

litigating the issue of exposure in the bellwether trial. This misrepresents the purpose

of the Consent Order, which was entered into by the parties to facilitate the transfer

of the case from Deputy Commissioner Gheen, who had heard the evidence presented

in the consolidated cases, to Deputy Commissioner Gillen. After the cases were

transferred to Deputy Commissioner Gillen, this Court published its opinion in

Bentley v. Jonathan Piner Construction which held, as a matter of first impression,

the Workers’ Compensation Act does not permit one Deputy Commissioner to

consider the evidence in a case and another to render an Opinion and Award. 249

N.C. App. 466, 471, 790 S.E.2d 379, 382 (2016).7

Accordingly, in order to avoid rehearing evidence presented over the course of

two years of hearings, the parties consented to the transfer to Deputy Commissioner

Gillen and stipulated they did not object under Bentley:

All parties stipulate to the transfer of these cases from Deputy Commissioner Gheen to Deputy Commissioner Gillen. No party requests any rehearing. The parties stipulate that all parties have had a full opportunity to be heard on the issues now pending before the Commission, and stipulate that review of the transcripts and the

7 This opinion was superseded by our later decision in that case. 254 N.C. App. 362, 802

S.E.2d 161

30 FUNDERBURK V. CONT’L TIRE THE AMERICAS

evidentiary record by Deputy Commissioner Gillen provides him with the evidence he needs to make a complete determination of the matters in dispute. The parties consent, agree and stipulate to Deputy Commissioner Gillen’s issuance of Findings of Fact and Conclusions of Law in an Opinion and Award based upon the transcripts of the testimony and matters in the record consistent with the law and rules of evidence.

The parties thereby agreed no additional presentation of evidence was required for

Deputy Commissioner Gillen to issue decisions in the Bellwether Cases.

Defendant attempts to transform this agreement into a stipulation that

Deputy Commissioner Gillen decide the question of exposure as to all plaintiffs even

though none besides the Bellwether Plaintiffs had had an opportunity to present

evidence specific to their own case. To support this, Defendant cites a portion of the

Order that summarized the procedural posture thus far:

While still assigned to Deputy Commissioner Glenn, these cases were postured so that there would be an “initial six” cases to be tried together as bellwether cases, with evidence common to all one hundred and forty-four cases also presented. The claims were set for hearing, in part, to litigate the issue of exposure and to take common evidence relating to the nature and extent of any asbestos exposure to employee-plaintiffs working in the facility.

Without more, we cannot read this portion of the Consent Order as constituting

a stipulation allowing the Deputy Commissioner to decide whether or not any

plaintiff was exposed to asbestos. “While a stipulation need not follow any particular

form, its terms must be definite and certain in order to afford a basis for judicial

decision.” Moore v. Richard W. Farms, Inc., 113 N.C. App. 137, 141, 437 S.E.2d 529

31 FUNDERBURK V. CONT’L TIRE THE AMERICAS

(1993). This provision could be interpreted in multiple ways, most likely as noting the

intent of the parties to “litigate the issue of exposure” by providing evidence relating

to theories of exposure common to all plaintiffs.

This interpretation is all the more likely given the placement of the language

identified by Defendant: within the section of the Order discussing the history of the

case and the process of the evidentiary hearings that had already occurred. This

section does not address rulings by the Deputy Commissioner or the effects thereof,

nor does it recite stipulations of the parties.

Later, in a separate section of the Order, the parties enumerate their

stipulations, all of which relate to the transfer of the case to Deputy Commissioner

Gillen. In this section, the parties stipulate “all parties have had a full opportunity to

be heard on the issues now pending before the Commission.” In the context of the

Order, the meaning of this statement is clear: the parties would not submit further

evidence or arguments regarding the Bellwether Cases or theories of causation

common to all Consolidated Plaintiffs—the “issues now pending before the

Commission.” Defendant’s suggested meaning, that each of the 144 plaintiffs were

implicitly waiving the right to present any evidence specific to their own case, strains

credulity. At no point does the Order state that the non-Bellwether Plaintiffs

intended to be bound by the results of the Bellwether Cases. We will not assign such

significant meaning to language that is, at best, ambiguous, and found in an

unrelated Order.

32 FUNDERBURK V. CONT’L TIRE THE AMERICAS

VI. Due Process

Plaintiff additionally argues the Industrial Commission’s dismissal of her

claim violates her right to due process.

“Due process” has a dual significance, as it pertains to procedure and substantive law. As to procedure it means “notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a competent and impartial tribunal having jurisdiction of the cause.”

State v. Smith, 265 N.C. 173, 180, 143 S.E.2d 293, 299 (1965).

The dismissal of Plaintiff’s case left her without opportunity to be heard. Under

our Workers Compensation Act the burden rests on the employee seeking benefits to

prove that his disease “was incident to or the result of the particular employment in

which [he] was engaged.” Booker v. Duke Medical, 297 N.C. 458, 475 (1979). See also

Holley v. ACTS, Inc., 357 N.C. 228, 231 (2003). More specifically, a plaintiff’s

“evidentiary burden” in this regard is “to establish that his employment exposed him

to a greater risk of contracting his disease relative to the general public.” Chambers

v. Transit, 360 N.C. 609, 614 (2006). Plaintiff was given no opportunity to meet this

burden.

Prior to the Opinion and Award in the Bellwether Cases, the parties presented

evidence as to common theories of causation and specific evidence related to the

claims of the Bellwether Plaintiffs. Evidence specific to Plaintiff’s claim, as with all

other non-Bellwether plaintiffs, was never heard.

33 FUNDERBURK V. CONT’L TIRE THE AMERICAS

While Defendant now argues the purpose of the bellwether process was to bind

the individual plaintiffs, this is not supported by the law or record. And we observe

that engaging in exploratory, rather than binding, bellwether litigation was

extremely effective at streamlining this mass tort action. Faced with an untenable

number of claims to litigate before the Industrial Commission, the parties agreed on

a plan to expedite the process. A handful of bellwether cases would proceed first, with

the parties presenting both evidence specific to those cases and relating to theories of

asbestos exposure common to all claims. The goal of this process, as in bellwether

litigation generally, was to educate the parties as to the value of the pending claims

and encourage their resolution. This process was a success. The Industrial

Commission held the evidence produced by the Bellwether Plaintiffs was insufficient

to support their claims. Understanding from this that they could not rely on the

common evidence regarding asbestos exposure to make their cases, 125 of the

remaining claimants—the vast majority—voluntarily dismissed their claims. This

left only a handful of claimants, including Plaintiff, who believed the evidence specific

to their cases separated their claims from the others and made them worth pursuing

even though the common evidence was insufficient to support a claim. These

claimants have not yet had an opportunity to present this evidence to the Industrial

Commission. None of the doctrines identified by Defendant preclude their claims, and

due process demands they have their day in court.

34 FUNDERBURK V. CONT’L TIRE THE AMERICAS

Thus, Plaintiff’s claim is not precluded by the prior Bellwether Claims.

Therefore, Plaintiff is entitled to an opportunity to present additional evidence, if any,

in support of her claim. Consequently, the Full Commission erred in dismissing

Plaintiff’s claim on this basis.

Conclusion

For the foregoing reasons, the Opinion and Award of the Industrial

Commission is reversed and this matter 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.

REVERSED AND REMANDED.

Judge WOOD concurs.

Chief Judge DILLON dissents by separate opinion.

35 No. COA24-192 – Funderburk v. Cont’l Tire the Americas

DILLON, Chief Judge, concurring in part and dissenting in part.

Plaintiff brought this workers’ compensation matter, alleging that decedent

Mr. Funderburk contracted asbestosis and lung cancer from exposure to asbestos

while employed by Defendant. The Full Commission dismissed Plaintiff’s claims

based on our opinion in Hinson v. Cont’l Tire, 267 N.C. App. 144 (2019). 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 as the factory.

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. Therefore, my

vote is to affirm the Commission’s order dismissing Plaintiff’s claims.

Approximately 150 individuals who had worked at Continental Tire’s

Charlotte factory filed workers compensation claims seeking benefits for asbestos-

related illnesses. All claimants are/were represented by the same counsel. Most of

these matters, including Plaintiff’s claim, were consolidated before the Commission.

As some factual and legal issues were thought to be common to all consolidated

cases, the parties in those cases agreed that six of the matters would be tried first.

Accordingly, counsel for the claimants selected six cases – referred to in the record

before us as the “bellwether” cases – to be tried together first, while the remaining

consolidated cases (including the case before us) would be stayed pending the FUNDERBURK V. CONT’L TIRE THE AMERICAS

DILLON, C.J., dissenting.

conclusion of the bellwether cases. (The number of bellwether cases was ultimately

reduced to five, as one bellwether claimant voluntarily dismissed his claim.)

Under this bellwether procedure, the parties in all the consolidated cases

agreed that they would jointly offer evidence common to all; e.g., evidence regarding

asbestos levels at the factory relative to asbestos levels experienced in the general

public. And each bellwether claimant would then offer evidence specific to his

exposure to asbestos in the factory and his own medical condition.

Under this approach, the Commission would first make findings as to the

asbestos levels at the factory; that is, whether the Commission determined that one

working at the factory had greater risk to asbestos exposure than the risk to exposure

in the general public. The Commission, next, would consider the evidence offered by

each bellwether plaintiff unique to him to determine whether the bellwether claimant

had shown he suffered from an asbestos-related disease and that said disease was

caused by his employment at the factory.

After 38 days of hearings held over a two-year period and ending in February

2013, a deputy commissioner entered an order denying the claims of the bellwether

claimants. Several years later, in January 2018, the Full Commission upheld the

deputy commissioner’s denial of the claims of the five bellwether cases.

The following year, in September 2019, our Court affirmed the Commission’s

decision and reasoning in the bellwether cases. See Hinson v. Cont’l Tire, 267 N.C.

App. 144, 203-04 (2019).

-2- FUNDERBURK V. CONT’L TIRE THE AMERICAS

The issue in this appeal is whether Plaintiff’s claims are barred by the result

in the bellwether cases as affirmed by our Court in Hinson.

In these matters, each claimant sought an award based on a disease or diseases

suffered due to exposure to asbestos while working at the factory.

Our Supreme Court has held that under our Workers Compensation Act the

burden rests on the employee seeking benefits to prove that his disease “was incident

to or the result of the particular employment in which [he] was engaged.” Booker v.

Duke Medical, 297 N.C. 458, 475 (1979). See also Holley v. ACTS, Inc., 357 N.C. 228,

231 (2003). And a plaintiff’s “evidentiary burden” in this regard is “to establish that

his employment exposed him to a greater risk of contracting his disease relative to

the general public.” Chambers v. Transit, 360 N.C. 609, 614 (2006).

In the bellwether matters, the Full Commission recognized that all

consolidated claimants, including Plaintiff, were parties for purposes of its findings

and conclusions regarding the issues common to all claims.

On appeal, we expressly stated we were treating all consolidated claimants,

including Plaintiff, as appellants with respect to our review of the issues common to

all consolidated cases (as all consolidated claimants were parties to the orders being

appealed). Hinson, 267 N.C. App. at 151, n. 8 (“Because the ‘common issues’ sections

of the 25 January 2018 opinions and awards apply to all Consolidated Plaintiffs, we

treat them as appellants as well.”). And we stated that a further hearing for any non-

bellwether claimant among the consolidated claimants would only be necessary if it

-3- FUNDERBURK V. CONT’L TIRE THE AMERICAS

was first found that asbestos levels at the factory were sufficient to cause or

contribute to any “alleged asbestos-related disease”:

The "Bellwether Cases" Approach

As noted above, in the ordinary case—because it is the plaintiffs' burden to prove they suffered from compensable occupational diseases—the Commission would first determine whether the plaintiffs had met their burden of proving they suffered from an occupational disease. If the plaintiffs failed to meet that burden, the Commission could deny their claims without making any further determinations such as compensability and liability.

Pursuant to the bellwether cases approach, review of the medical evidence for the alleged asbestos-related diseases for all Consolidated Plaintiffs will only be necessary if Plaintiffs first prove that working in the factory exposed them to asbestos, in a form and in quantities, that could have caused the alleged asbestosis; or caused—or significantly contributed to—the development of other alleged asbestos-related diseases.

Id. at 171-72 (internal citations and marks omitted) (emphasis added).

Interpreting the Full Commission’s bellwether orders, we then stated the

Commission determined in those orders that “employment in the factory did not

expose [any of the consolidated] Plaintiffs to airborne asbestos of a kind and in

amounts sufficient to cause or contribute to asbestosis.” Hinson, 267 N.C. App. at

172. This statement could be construed as only barring asbestosis claims. However,

we added a footnote to the word “asbestosis”, which states:

“I.e., that any alleged asbestos-related disease could not have ‘arisen out of’ employment with Defendant[,]”

-4- FUNDERBURK V. CONT’L TIRE THE AMERICAS

Id. n. 15 (emphasis added).

“I.e.” in the footnote is an abbreviation for the Latin phrase “id est”, meaning

“that is” or “in other words, and is used to further define the word to which it refers.

See, e.g., Edwards Lifescience v. Cook, 582 F.3d 1322, 1335 (Fed. Cir. 2009) (stating

that “use of ‘i.e.’ signals an intent to define the word to which it refers”).

Accordingly, the 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. 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.

Indeed, in Hinson, we noted that all consolidated claimants, including

Plaintiff, conceded that the “Commission [had] made findings and conclusions

regarding the amount of exposure Plaintiffs had to asbestos and whether the level

was sufficient to cause a disease,” id. at 173, and that “[t]he Commission specifically

and repeatedly determined that Plaintiffs were not exposed to asbestos in such form

and quantity, and used with such frequency, as to cause asbestosis or any asbestos-

related condition.” Id. at 173-74 (internal marks omitted) (emphasis added).

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

-5- FUNDERBURK V. CONT’L TIRE THE AMERICAS

alleged by the bellwether plaintiffs, including asbestosis. 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. I, therefore, conclude the Full Commission

did not err in dismissing Plaintiff’s claim. See, e.g., Crowell v. State ex. rel. Cobey,

342 N.C. 838, 842 (1996) (issues which become the “law of the case” are binding in

subsequent proceedings in the matter). In so concluding, I note that had the

Commission believed Plaintiff’s evidence concerning the level of asbestos at the

factory, Continental Tire would have been bound by the findings concerning that

issue in Plaintiff’s case. See Moore v. Humphrey, 247 N.C. 423, 430 (1958).

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