Asbestos Litigation Defense
Cetrulo LLP is widely recognized as an industry leader in asbestos litigation defense. The Firm's attorneys are regularly invited to speak at national conferences. They are also well-versed on the many issues that arise in defending asbestos cases.
Research has proven that asbestos exposure causes lung damage and disease. This includes mesothelioma, and less serious diseases like asbestosis and pleural plaques.
Statute of limitations
In the majority of personal injury claims there is a statute that limits the time limit within which a victim may make an action. In asbestos cases, the statute of limitations differs according to the state. They also differ from other personal injury claims since asbestos-related illnesses may take a long time to be apparent.
Due to the delay in the development of mesothelioma as well as other asbestos-related diseases the statute of limitations clock starts at the date of diagnosis (or death, in cases of wrongful death) instead of the date of exposure. This discovery rule is why the victims and their families must consult an experienced New York mesothelioma lawyer as soon as they can.
When you file a asbestos lawsuit, there are many factors that must be taken into account. One of the most important is the statute of limitations. The statute of limitations is the time limit at which the victim has to file a lawsuit. In the event of a delay, it could result in the case being barred. The statute of limitations differs by state, and the laws differ widely however, most states allow between one and six years from when the victim was diagnosed with an asbestos-related disease.
In an asbestos case, defendants often use the statute of limitation as a defense against liability. For example, they may argue that the plaintiffs knew or should have been aware of their exposure, and therefore had a duty to notify their employer. This is a common argument in mesothelioma lawsuits. It is difficult to prove for the victim.
Another defense that could be used in a asbestos case is that the defendants did not have the resources or the means to warn of the dangers posed by the product. This is a complicated argument and largely depends on the evidence that is available. For example, it was successfully presented in California that defendants did not have "state-of-the-art" knowledge and thus could not be expected to give adequate warnings.
Generally speaking, it is preferential to start the asbestos lawsuit in the state where the victim's residence. In certain circumstances it may be appropriate to file a lawsuit in a different state from the victim's. This is usually connected with the place of the employer, or the location where the employee was exposed to asbestos.
Bare Metal
The"bare metal" defense is a standard strategy used by manufacturers of equipment in asbestos litigation. It argues that since their products left the factory as unfinished metal, they had no obligation to warn of the risks of asbestos-containing products added by other parties at a later date, such as thermal insulation and flange gaskets. This defense has been embraced in certain jurisdictions, but it is not available under federal law in all states.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed that. The Court rejected the manufacturers' preferred bright line rule, and instead created a new standard under which manufacturers have a responsibility to inform consumers if they know that its product will be harmful for its intended purposes and does not have any reason to believe that its final users will be aware of that risk.
While this change in law could make it more difficult for plaintiffs to bring claims against equipment manufacturers, it is not the end of the story. The DeVries decision does not apply to state-law claims based on strict liability or negligence, and is not applicable to claims brought under federal maritime law statutes such as the Jones Act.
Plaintiffs will continue to pursue a broader interpretation of the defense of bare-metal. For instance in the Asbestos MDL case in Philadelphia, a case was remanded to an Illinois federal court to determine whether the state is able to recognize the defense. The deceased plaintiff in that claim was a carpenter, and was exposed to switchgear and turbines at a Texaco refinery which contained asbestos-containing components.
In a similar instance, a judge in Tennessee has stated that he is likely to take a different approach to the bare metal defense. In the case the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed as having mesothelioma. He was employed on equipment that was repaired or replaced by third party contractors, which included Equipment Defendants. The judge in that case ruled that the bare metal defense is applicable to cases such as this. The Supreme Court's DeVries decision will impact how judges apply the bare metal defense in other situations.
Defendants' Experts
Asbestos litigation is a complex affair and requires lawyers with a deep medical and legal knowledge as well as access to experts of the highest caliber. The attorneys at EWH have decades of experience in assisting clients with various asbestos litigation cases, such as investigating claims, preparing strategic budgets and litigation management plans as well as finding and retaining experts, and defending defendants' and plaintiffs' expert testimony during depositions and in court.
Typically asbestos cases require testimony of medical professionals such as a radiologist and pathologist who can testify about X-rays or CT scans that show scarring of the lung tissue that is typical of asbestos exposure. A pulmonologist may also testify regarding symptoms, like breathing difficulties, which are similar to mesothelioma and other asbestos-related diseases. Experts can provide a thorough account of the plaintiff's work history, including an analysis of their tax, social security, union and job records.
It may be necessary to consult a forensic engineer or an environmental scientist in order to determine the cause of exposure to asbestos. These experts can aid defendants to argue that asbestos exposure was not at the workplace, but brought into the home through the clothing of workers or the outside air.
A lot of plaintiffs' lawyers employ economic loss experts to assess the financial loss suffered by victims. These experts can calculate how much money a victim has lost due to their disease and the impact it has had on their life. They can also testify to expenses like medical bills and the cost of hiring someone to do household chores that a person is unable to do.
It is important that plaintiffs challenge defendants experts, particularly in the event that they have testified on dozens or hundreds of asbestos claims. Experts may lose credibility with the jury if their testimony is repeated.
Plaintiffs in asbestos cases may also request summary judgment if they prove that the evidence doesn't establish that the plaintiff was injured due to their exposure to the defendant's product. A judge won't issue a summary judgment merely because a defendant has pointed out holes in the plaintiff's proof.
Going to Trial
Due to the latency issues in asbestos cases, it can be difficult to make a significant discovery. The time between exposure and disease can be measured in decades. To establish the facts on which to base a claim it is essential to look over an individual's job history. This typically involves a thorough asbestos litigation cases review of social security as well as tax, union, and financial records as along with interviews with coworkers and family members.
Asbestos patients are more likely to develop less serious diseases like asbestosis prior to diagnosis of mesothelioma. Because of this, the ability of a defendant to show that a plaintiff's symptoms may be due to a different illness other than mesothelioma can be beneficial in settlement negotiations.
In the past, some attorneys have employed this strategy to deny liability and get large awards. However as the defense bar has developed and diversified, this strategy has been largely rejected by the courts. This is particularly true in federal courts, where judges regularly dismiss claims based on the absence of evidence.
This is why an in-depth analysis of every potential defendant is crucial to a successful asbestos litigation defense. This includes assessing the length and nature of the exposure as well as the degree of any diagnosed illness. For instance, a woodworker who has mesothelioma will likely to receive higher damages than a person who only has asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation on behalf of manufacturers, distributors and suppliers contractors, employers and property owners. Our attorneys have served as National Trial and National Coordination Counsel and are frequently appointed as liaison counsel by courts in order to manage asbestos dockets.
Asbestos litigation can be complicated and expensive. We help our clients recognize the risks involved in this type of litigation, and we assist them to develop internal programs that are proactive and detect liability and safety issues. Contact us to learn how we can protect your business's interests.