Asbestos Litigation Defense
Cetrulo LLP is widely recognized as a leader in asbestos litigation defense. The attorneys of the Firm regularly participate in national conferences and are knowledgeable in the myriad of issues that arise when defending asbestos cases such as jurisdictional Case Management Orders and expert selection.
Research has proven that asbestos exposure can cause lung damage and disease. This includes mesothelioma, well as lesser diseases like asbestosis and plaques in the pleural cavity.
Statute of Limitations
In most personal injury cases, a statute limits the time limit within the date a victim is able to file a claim. In the case of asbestos, the statute of limitations is different by state and is different from in other personal injury claims due to the fact that asbestos-related diseases can take years to show up.
Due to the delayed nature of mesothelioma and asbestos-related diseases the statute of limitations clock starts at the date of diagnosis (or death in cases of wrongful death) rather than at the time of exposure. This discovery rule is the reason victims and their families need to work with a reputable New York mesothelioma lawyer as soon as they can.
When filing an asbestos lawsuit, there are a variety of factors that must be taken into account. The statute of limitations is one of the most important. The statute of limitations is the date at which the victim has to start a lawsuit. In the event of a delay, it could result in the case being barred. The statute of limitation varies from state to state and laws differ greatly. However, most allow between one and six years after the time that the victim was diagnosed.
In an asbestos-related case in which the defendants are involved, they will typically attempt to invoke the statute of limitations as a defense against liability. They could argue for instance that the plaintiffs should have known or had knowledge of their exposure to asbestos and were under the obligation of notifying their employer. This is an argument that is common in mesothelioma lawsuits, and it can be difficult for the victim to prove.
A defendant in an asbestos case could be able to claim that they did not have the resources or means to warn about the dangers of the product. This is a complex argument and largely depends on the evidence that is available. In California, for example, it was successfully claimed that defendants were not equipped with "state-ofthe-art" information and were not able to give adequate warnings.
In general, it's best to start an asbestos lawsuit in the state where the victim resides. In certain circumstances, it may make sense to bring a lawsuit in a different state from the victim's. This usually has something to do with where the employer is located or where the worker was first exposed to asbestos.
Bare Metal
The bare metal defense is a typical strategy used by manufacturers of equipment in asbestos litigation. It asserts that because their products left the factory as raw metal, they were under no obligation to warn consumers of the dangers of asbestos-containing substances that were added by other parties at a later time, such as thermal insulation and gaskets for flanges. This defense is accepted in certain jurisdictions, but not in all.
The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries has changed that. The Court has rejected manufacturers' preferred bright-line rule and instead created a standard that requires the manufacturer to notify customers if they know that their integrated product is dangerous for its intended purpose. They there is no reason to believe that users will be aware of the risk.
Although this change in law may make it more difficult for plaintiffs to prevail in claims against manufacturers of equipment, it's not the end of the tale. For one, the DeVries decision does not apply to state-law claims made on the basis of negligence or strict liability, and are not covered by federal maritime law statutes, like the Jones Act or the Maritime Claims Act.
Plaintiffs will continue to pursue an expanded interpretation of the defense of bare metal. For example in the asbestos MDL case in Philadelphia, a case was remanded to an Illinois federal court to decide whether that state recognizes the defense. The plaintiff who died in the case worked as a carpenter and was exposed to turbines and switchgear at a Texaco refinery that contained asbestos-containing components.
In a similar case, a judge in Tennessee has stated that he'll take a different view of the defense of bare metal. In the case the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed with mesothelioma. He was employed on equipment that was repaired or replaced by third party contractors, which included Equipment Defendants. latest asbestos litigation in the case ruled that bare-metal defenses can be applied to cases like this. The Supreme Court's DeVries decision will influence how judges apply the bare metal defense in other situations.
Defendants' Experts
Asbestos lawsuits are complicated and require skilled lawyers who have a thorough knowledge of both legal and medical issues and access to expert witnesses of the highest caliber. EWH attorneys have decades of experience in asbestos litigation, which includes investigating claims, preparing strategies for managing litigation and budgets, identifying and bringing in experts and defending plaintiffs as well as defendants with expert testimony in trials and depositions.
Typically, asbestos cases require the testimony of medical professionals such as pathologists and radiologists who can testify regarding X-rays or CT scans that reveal the lung tissue being damaged that is typical of asbestos exposure. A pulmonologist is also able to testify about symptoms such as breathing difficulties, which are similar to those experienced by mesothelioma or other asbestos-related diseases. Experts can provide an in-depth account of the plaintiff's work history, including an investigation of their tax, social security and union records as well as job and employment details.
It may be necessary to consult a forensic engineer or an environmental scientist in order to determine the source of asbestos exposure. These experts can help defendants argue that the alleged asbestos was not exposed in the workplace and instead was brought home on the clothing of workers or from the air outside (a common defense in mesothelioma cases).
Many of the plaintiffs lawyers will bring in economic loss experts to establish the monetary losses incurred by the victims. These experts will be able to determine the amount of money a person has lost due to illness and the impact it affected their life. They can also testify to costs like medical bills and the cost of hiring someone else to complete household chores a person is unable to do.
It is essential that defendants challenge plaintiffs' expert witnesses, particularly in the event that they have testified on hundreds or dozens of asbestos claims. Experts can lose credibility with the jury if their testimony is repeated.
Plaintiffs in asbestos cases may also apply for summary judgment when they prove that the evidence doesn't establish that the plaintiff was injured caused by their exposure to the defendant's product. A judge is not likely to grant summary judgement just because a defendant points out holes in the plaintiff's proof.
Trial
The issues of latency in asbestos cases means that significant information can be almost impossible. The time between exposure and the onset of the disease could be measured in years. As such, establishing the facts that will make a case requires a review of an individual's entire work history. This often involves a thorough review of social security as well as tax, union, and financial records as well as interviews with co-workers and family members.
Asbestos sufferers are more likely to develop less serious diseases like asbestosis before a mesothelioma diagnosis. Because of this, a defendant's ability to demonstrate that plaintiff's symptoms stem from a disease other than mesothelioma could be of significant significance in settlement negotiations.
In the past, certain attorneys have used this strategy to deny liability and get large awards. However, as the defense bar has grown the strategy has been largely rejected by the courts. This is especially relevant in federal courts, where judges have routinely dismissed such claims based on the lack of evidence.
An in-depth analysis of each potential defendant is essential to ensure a successful defense in asbestos litigation. This includes assessing the severity and duration of the disease as well as the type of the exposure. For instance, a woodworker who has mesothelioma will likely to suffer greater damage than someone who 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 lawyers have extensive experience serving as National Trial and National Coordinating Counsel, and are regularly appointed by courts as liaison counsel to handle the prosecution of asbestos dockets.
Asbestos litigation can be complex and expensive. We assist our clients in understanding the risks associated with this type of litigation and collaborate with them to develop internal programs designed to proactively identify potential liability and safety issues. Contact us today to learn more about how our firm can safeguard your company's interests.