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 in the myriad of issues that arise in trying to defend asbestos cases.
Research has shown that exposure to asbestos causes lung damage and disease. This includes mesothelioma as well as lesser illnesses like asbestosis and pleural plaques.
Statute of limitations
In most personal injury cases statutes limit the time limit within which a victim can make a claim. In the case of asbestos, the statute of limitations differs by state and is different from in other personal injury lawsuits due to the fact that asbestos-related diseases can take a long time to manifest.
Due to the delay in the development of mesothelioma, and other asbestos-related diseases the statute of limitations clock starts on the date of diagnosis, or death in wrongful death cases, rather than the date exposure. This discovery rule is the reason victims and their family members must consult an experienced New York mesothelioma lawyer as soon as they can.
When making an asbestos lawsuit, there are a variety of factors that must be considered. The statute of limitations is among the most crucial. This is the deadline that the victim has to submit the lawsuit by, and failure to file a lawsuit by the deadline could result in the case being barred. The statute of limitations differs by state, and the laws differ greatly, but most allow for between one and six years from when the victim was diagnosed with an asbestos-related illness.
In asbestos cases defendants frequently employ the statute of limitations as a defense against liability. They may say that, for instance, the plaintiffs should have known or knew about their exposure to asbestos and that they had the obligation of notifying their employer. This is a common argument in mesothelioma cases, and it isn't easy for the plaintiff to prove.
Another defense that could be used in an asbestos case is that the defendants did not have the resources or the means to warn of the dangers of the product. This is a complicated argument and largely depends on the evidence that is available. In California for instance it was argued that the defendants lacked "state-ofthe-art" information and therefore could not give adequate warnings.
In general, it is best to make an asbestos lawsuit in the state in which the victim resides. However, there are certain situations in which it might make sense to file the lawsuit in an alternative state. It usually has to do with the location of the employer, or the place where the worker was exposed to asbestos.
Bare Metal
The bare-metal defense is a strategy that equipment manufacturers employ in asbestos litigation. The bare-metal defense claims that because their products left the factory in bare steel, they did not have a duty to inform about the dangers of asbestos-containing materials later added by other parties, for instance thermal insulating and flange seals. This defense is recognized in some jurisdictions but not in all.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the law. The Court did not accept the bright-line rule of manufacturers and instead formulated the standard that requires the manufacturer to notify customers when they are aware that their integrated product is hazardous for its intended purpose and there is no reason to believe that the end users will realize this risk.
Although this change in law may make it harder for plaintiffs to bring claims against manufacturers of equipment, it's not the end of the story. The DeVries decision does not apply to state-law claims that are based on strict liability or negligence, and is not applicable to claims brought under federal maritime law statutes like the Jones Act.
Plaintiffs will continue to seek a more expansive reading of the bare metal defense. In the Asbestos Multi District Litigation in Philadelphia, for example the case was remanded back to an Illinois federal judge to determine if the state recognizes this defense. The deceased plaintiff in that claim worked as a carpenter and was exposed to switchgear and turbines in a Texaco refinery that contained asbestos-containing components.
In the same case in Tennessee, a Tennessee judge has indicated that he is likely to adopt the third view of bare metal defense. In that case the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed with mesothelioma. He had worked on equipment that was repaired or replaced by third-party contractors, including Equipment Defendants. The judge in the case held that bare-metal defenses can be applied to cases like this. The Supreme Court's DeVries decision will impact how judges use the bare-metal defense in other situations.
Defendants' Experts
Asbestos lawsuits are complicated and require experienced lawyers with a thorough knowledge of legal and medical issues, as well as access to top experts. The attorneys at EWH have years of experience in assisting clients with various asbestos litigation issues, including analyzing claims, developing strategic budgets and litigation management plans as well as finding and retaining experts, and defense of defendants and plaintiffs expert testimony in depositions and in court.
Typically asbestos cases require testimony of medical professionals such as a radiologist and pathologist who testify on X-rays or CT scans that reveal scarring of the lung tissue that is typical of asbestos exposure. A pulmonologist can also testify regarding symptoms, such as breathing problems, which are similar to mesothelioma as well as other asbestos-related illnesses. Experts can also provide a full details of the work performed by the plaintiff, which includes an examination of the worker's union and tax records as well as social security documents.
It may be necessary to consult an engineer who is forensic or an environmental scientist in order to determine the cause of exposure to asbestos. Experts in these fields can assist plaintiffs argue that the asbestos was not exposed at the workplace and was instead brought home on workers' clothing or from the outside air (a common defense in mesothelioma cases).
A lot of plaintiffs' lawyers employ experts in economic loss to calculate the financial losses suffered by the victims. They can determine the amount of money a person has lost due to their disease and the impact it had on his or her life. They can also testify on expenses like medical bills and the cost of hiring someone to do household chores that one cannot perform anymore.
It is important that plaintiffs challenge defendants expert witnesses, especially if they have testified on hundreds or even hundreds of other asbestos claims. Experts can lose credibility before jurors when their testimony is repeated.
Plaintiffs in asbestos cases may also request summary judgment when they demonstrate that the evidence does not show that the plaintiff was injured from exposure to the defendant's product. A judge is not likely to issue a summary judgment merely because a defendant points out weaknesses in the plaintiff's evidence.
Going to Trial
Due to the latency issues that are prevalent in asbestos cases, it can be difficult to make a meaningful discovery. Westland asbestos lawyers between exposure and the onset of disease can be measured in decades. Therefore, determining the facts on which to build a case will require a thorough examination of the entire work history. This usually involves an exhaustive examination of social security and tax records, union and financial records as along with interviews with coworkers and family members.
Asbestos sufferers are often diagnosed with less serious illnesses such as asbestosis prior to diagnosis of mesothelioma. Because of this, the ability of a defendant to prove that a plaintiff's symptoms may be caused by a different disease other than mesothelioma can be beneficial in settlement negotiations.
In the past, certain attorneys have used this strategy to avoid liability and receive large sums. However, as the defense bar has developed, this approach has been largely rejected by the courts. This is particularly relevant in federal courts, where judges have routinely dismissed such claims based on lack of evidence.
A thorough evaluation of each potential defendant is crucial to be able to defend effectively in asbestos litigation. This includes assessing the length and nature of the exposure as well as the severity of any diagnosed disease. For instance, a worker who is diagnosed with mesothelioma is more likely to receive higher damage than someone who has asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation on behalf of manufacturers, suppliers and distributors contractors, employers, and property owners. Our lawyers have been appointed as National Trial and National Coordination Counsel and are regularly appointed as liaison counsel by courts to handle asbestos dockets.
Asbestos cases can be complicated and costly. We assist our clients in understanding the risks associated with this type of litigation. We work with them to formulate internal programs that will detect potential safety and liability concerns. Contact us to learn how we can safeguard your business's interests.