Asbestos Litigation Defense
Defending companies from asbestos litigation requires a thorough analysis of a plaintiff's work history, medical records and testimony. We typically use the bare metal defense, which focuses on arguing that your company was not able to manufacture, sell or distribute the asbestos-containing products in question in a claimant's case.
Asbestos cases require a distinctive approach and a determined approach to get results. We are local, regional, and national counsel.
Statute of limitations
The statute of limitations is a period within which the majority of lawsuits have to be filed. For asbestos-related cases, this means that the deadline for filing a lawsuit is between one and six years after a victim is diagnosed with an asbestos-related disease. In order to defend the case, it is important to prove that the claimed injury or death did occur prior to this timeframe. This usually requires a thorough review and analysis of the plaintiff's employment history, including interviews of former coworkers, as well as a thorough study of Social Security and union records, as well as tax and tax documents.
Defending asbestos cases involves various complex issues. Asbestos-related victims can suffer from a less severe disease, such as asbestosis, prior to being diagnosed with a fatal illness like mesothelioma. In these instances, the defense attorney will argue that the limitation period should start when the victim was aware or should have reasonably believed that asbestos exposure caused their illness.
These cases are made more complex because the statute of limitations can differ from state to state. In these instances an experienced mesothelioma lawyer will attempt to present the case in the state where the bulk of the exposure alleged to have taken place. This can be a challenging task as asbestos sufferers typically travel around the country to find work, and the exposure could have occurred in several states.
In addition, the process of discovery is difficult in asbestos litigation. In contrast to other personal injury cases, which typically involve only a few defendants, asbestos-related litigation typically includes dozens or more parties. As a result, it is often difficult to obtain relevant evidence in these cases, especially when the plaintiff's argument for injuries spans decades and connects many defendants.
The McGivney, Kluger, Clark & Intoccia team has extensive experience as National Coordinating Counsel in multi-district and multi-jurisdictional asbestos litigation. We collaborate closely with regional and local counsel to formulate a strategy for litigation as well as manage local counsel and obtain consistent, cost-effective outcomes, in coordination with client objectives. We regularly appear before the trial judge and the coordinating judge as and litigation masters across the country.
Bare Metal Defense
Historically, manufacturers of boiler, turbine, pump and valve equipment have defended themselves in asbestos litigation by asserting a defense known as the "bare metal" or the component part doctrine. This defense holds that a company cannot be held liable for asbestos-related harms caused by replacement components that the company didn't design or install.
In the case Devries v. Tennessee Eastman Chemical, the Tennessee Eastman Chemical plant employee was suing several equipment manufacturers for his mesothelioma. Plaintiff's work included the removal and replacement of insulation, steam traps, and gaskets from equipment, such as pumps, valves and steam traps. He claimed that he was exposed to asbestos when working in the plant and was diagnosed with mesothelioma a few years later.
The Supreme Court's Devries decision has changed the nature of asbestos litigation, and could influence the way the courts in other jurisdictions deal with the issue of third-party parts that manufacturers include in their equipment. The Court declared that the application of the bare-metal defense is "cabined" in maritime law, but left open the possibility for other federal circuits to apply this doctrine to cases that are not maritime.
This ruling was the first time that an appeals court of the federal level has applied the bare-metal defense in a asbestos lawsuit and is a significant departure from traditional product liability law. Most courts have interpreted this "bare metal" defense as a way of avoiding the obligation of a company to warn consumers about the harm caused by replacement parts that it did not create or sell.
The McGivney, Kluger, Clark & Intoccia team frequently serves as National Coordinating Counsel for clients who are involved in multi-jurisdictional asbestos litigation. We assist our clients to develop strategies for litigation, manage local and regional counsel, and ensure an efficient, cost-effective defense in coordination with their objectives. Our attorneys speak at conferences for industry professionals on the most important issues affecting asbestos litigation. Our firm has a long history of defending clients in all 50 states and working closely with trial courts, judges and litigation special masters. Our unique approach has been effective in cutting down on our clients' exposure and legal costs.
Expert Witnesses
An expert witness is someone who has specific skills, experience or knowledge and can provide independent advice to the court by way of an objective opinion regarding issues that fall within his field of expertise. He must clearly state his opinion and the evidence or assumptions he's basing it on. He should also not ignore any factors that could affect his conclusions.
In cases involving allegations of exposure to asbestos, medical professionals are often called upon to assist in the evaluation of the claimant's health and the identification of any causal connection between their condition and a known source of exposure. Many of the illnesses caused by asbestos are extremely complex, and require the expertise of specialists in the field. This includes nurses and doctors pharmacists, toxicologists, pharmacists, epidemiologists, occupational health specialists and pharmacists.
Experts are there to provide an impartial technical support, whether they represent the prosecution or the defence. He should not act as an advocate or try to influence the jury in favor of his client. The obligation to the court supersedes the asbestos litigation defense obligations he has to his client. He should not attempt to promote an argument or seek evidence to back it.
The expert should collaborate with other experts to address any issues that are peripheral and reduce any technical issues. The expert should also cooperate with the people who instruct him in identifying areas of agreement and disagreement for the purpose of the joint statement of experts ordered by the court.
After his chief examination the expert should be able to explain his conclusions and the reasons behind them in a clear and comprehensible way. He should be able to answer questions from either the prosecution or judge, and be willing to discuss all issues raised during cross-examination.
Cetrulo LLP is well versed in protecting clients in multi-jurisdictional, multi-party asbestos litigation. Our lawyers are able to advise and manage regional and national defense counsel as well as regional and local experts and witnesses. Our team is regularly in front of the coordinating judges, trial judges, and special masters in asbestos litigation across the country.
Medical Experts
Due to the latency issues that occur between asbestos exposure and the beginning of symptoms, expert witnesses are a crucial part in any case involving an asbestos-related injury. Asbestos cases often involve complex theories of injury that span decades and link hundreds or even dozens of defendants. Due to this, it is nearly impossible for a plaintiff to prove their case without the assistance of experts.
Medical and other experts in the field are essential to determine the extent of an individual's exposure, evaluate their medical conditions and provide information about potential future health problems. Experts like these are essential to any case and must be thoroughly checked and knowledgeable of the subject matter. The more experience a medical or scientific expert has the more persuasive they'll be.
Asbestos cases usually require a medical or scientific expert to analyze the medical records of the plaintiff and conduct a physical examination. These experts can testify as to whether the claimant's exposure to asbestos was enough to cause a particular medical condition such as mesothelioma, lung cancer, or other forms of scarring on the respiratory tract and lungs (e.g. plaques in the pleural cavity).
Other experts, such as industrial hygienists could be required to aid in establishing the existence of asbestos-related exposure levels. They can employ sophisticated analytical and sampling techniques to compare airborne asbestos levels at a workplace or home with the standards for exposure that are legally required.
These experts can be very beneficial in defending companies that produce or distribute asbestos-related products. They are often able to demonstrate that the levels of exposure for plaintiffs were below the legal limits and that there was not evidence of negligence on the part of the employer or product manufacturer responsibility.
Other experts in these cases include environmental and occupational experts who can provide insights on the safety protocols at a specific workplace or business and how they relate to the liability of asbestos manufacturers. These experts can be able to, for instance, prove that renovation materials damaged during the course of remodeling could contain asbestos, or that shaking clothing contaminated by asbestos can cause asbestos fibers and asbestos dust to be released.