Asbestos Litigation Defense
Cetrulo LLP has been widely recognized as a leader in asbestos litigation. The firm's lawyers regularly speak at national conferences and are well-versed in the many issues that arise in defending asbestos cases such as jurisdictional Case Management Orders and expert selection.
Research has proved that asbestos exposure causes lung damage and disease. This includes mesothelioma and lesser illnesses like asbestosis and pleural plaques.
Statute of Limitations
In the majority of personal injury cases, a statute of limitation sets a deadline for how long after an injury or accident, the victim can file an action. In the case of asbestos, the statute of limitations varies by state and is different from in other personal injury claims due to the fact that asbestos-related illnesses can take decades to show up.
Due to the delay in the development of mesothelioma as well as other asbestos-related diseases the statute of limitation clock starts at the date of diagnosis (or death, in wrongful death cases) instead of the time of exposure. This discovery rule is the reason why the families of victims must work as quickly as they can with an experienced New York
asbestos lawyer.
There are a variety of aspects to take into consideration when making an asbestos lawsuit. The statute of limitations is among the most important. This is the date that the victim has to submit the lawsuit by, and failure to do so will result in the case being closed. The statute of limitations differs in each state, and laws differ widely, but most allow for between one and six years from the time the victim was diagnosed with an asbestos-related disease.
During an asbestos case, the defendants will often attempt to use the statute of limitations as a defense against liability. They might argue for instance that plaintiffs should have been aware or had knowledge of their asbestos exposure and had an obligation to notify their employer. This is a common defense in mesothelioma lawsuits, and it can be difficult to prove for the victim.
Another possible defense in a case involving asbestos is that the defendants did not have the means or resources to warn people of the dangers of the product. This is a complex argument that is largely based on the evidence available. For example, it was successfully argued in California that defendants didn't possess "state-of-the-art" expertise and therefore could not be expected to give adequate warnings.
In general, it is recommended to start the
asbestos lawsuit in the state of the victim's residence. In certain circumstances, it may make sense to bring a lawsuit in a state other than the victim's. It usually has to do with be related to where the employer is located or the place where the employee was first exposed to asbestos.
Bare Metal
The defense of bare metal is a typical strategy used by manufacturers of equipment in asbestos litigation. The bare metal defense asserts that, because their products left the plant as bare steel, they didn't have a responsibility to warn about the dangers posed by asbestos containing materials added later by other parties, for instance thermal insulating seals and flanges. This defense has been accepted in some states, but it's not available under federal law in all states.
The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries changed the rules. The Court did not accept the manufacturers' preferred bright line rule, and instead, a new standard under which a manufacturer has a duty to inform consumers if they know that its integrated product will be dangerous for its intended use and has no reason to believe that its end customers will be aware of the risk.
This change in law makes it more difficult for plaintiffs to file claims against equipment manufacturers. However this isn't the end of the story. The DeVries decision is not applicable to state-law claims that are 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 reading of the bare metal defense. In the Asbestos Multi-District Litigation of Philadelphia for instance, a case was remanded back to an Illinois federal judge to determine whether that state recognizes this defense. The plaintiff who died in this case was a carpenter who had been exposed to switchgear, turbines, and other asbestos-containing components at a Texaco refining facility.
In a similar case in Tennessee, the Tennessee judge has indicated that he is likely to adopt the third perspective of the defense of bare-metal. 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 the case decided that bare metal defenses apply to cases like this. The Supreme Court's DeVries decision will impact how judges apply the bare metal defense in other situations.
Defendants' Experts
Asbestos litigation is complex and requires attorneys with vast knowledge of both law and medicine as well as access to experts of the highest caliber. Attorneys at EWH have years of experience in assisting clients with various
asbestos lawyer litigation cases, such as investigating claims, preparing strategic budgets and litigation management strategies as well as finding and retaining experts, and defense of defendants and plaintiffs expert testimony during deposition and during trial.
Typically
asbestos attorney cases require the testimony of medical professionals such as a radiologist and pathologist who testify on X-rays or CT scans that reveal scarring of lung tissue typical of asbestos exposure. A pulmonologist can also provide evidence of symptoms, such as breathing difficulties and coughing, which are similar to those experienced by mesothelioma, as well as other asbestos-related diseases. Experts can also provide detailed history of work performed by the plaintiff, including a review of job, union tax, social security records.
It could be necessary to consult an engineer from the forensic field or an environmental scientist to determine the source of asbestos exposure. These experts can help plaintiffs argue that the asbestos was not exposed in the workplace and instead was brought home through clothing worn by workers or in the air outside (a common defense in mesothelioma cases).
Many of the plaintiffs lawyers will bring experts in economic loss to determine the financial losses incurred by the victims. These experts can calculate the amount of money a person has lost due to illness and the impact it affected their life. They can also testify about expenses like the cost of medical bills and the cost of hiring a person to take care of household chores that the person cannot perform anymore.
It is important for defendants to challenge the plaintiff's expert witnesses, especially in cases where they have given evidence in dozens, or hundreds of asbestos-related cases. These experts can lose credibility with jurors when their testimony is repeated.
Defendants in asbestos cases can also request summary judgment when they show that the evidence doesn't establish that the plaintiff suffered injuries due to their exposure to the defendant's product. A judge won't issue a summary judgment merely because a defendant has pointed out gaps in the plaintiff’s proof.
Trial
Due to the latency issues that are prevalent in asbestos cases, it is difficult to make a significant discovery. The lag between exposure and the appearance of the disease can be measured in years. To determine the facts on which to build a case it is important to review an individual's work background. This often involves a thorough analysis of social security and tax records, union, and financial records, as well as interviews with co-workers and family members.
Asbestos sufferers are more likely to develop less serious illnesses like asbestosis before a mesothelioma diagnosis. Due to this, the ability of a defendant to demonstrate that the plaintiff's symptoms could be due to a different illness other than mesothelioma can be beneficial in settlement negotiations.
In the past, certain lawyers have employed this method to deny responsibility 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 for federal courts, where judges regularly dismiss such claims due to the absence of evidence.
This is why an in-depth analysis of every potential defendant is crucial to an effective asbestos litigation defense. This includes assessing the duration and nature of the exposure as in addition to the degree of any diagnosed illness. For example, a woodworker who is diagnosed with mesothelioma is more likely to suffer greater damage than someone who has asbestosis.
The Bowles Rice Asbestos Litigation Team regularly defends suppliers, manufacturers contractors, distributors as well as property owners and employers in asbestos related litigation. Our attorneys have served as National Trial and National Coordination Counsel and are frequently appointed as liaison counsel by courts to handle asbestos dockets.
Asbestos cases can be complicated and costly. We assist our clients to understand the risks involved in this type of litigation, and we work with them to create internal programs that are proactive and detect liability and safety issues. Contact us today to find out how we can help protect your business's interests.