Asbestos Litigation Defense
Cetrulo LLP is widely recognized as an industry leader in asbestos litigation defense. The attorneys of the Firm regularly speak at national conferences and are proficient in the myriad issues that arise in the defense of asbestos cases, including jurisdictional Case Management Orders and expert selection.
Research has proven that asbestos exposure can cause lung diseases and damage. This includes mesothelioma, well as lesser diseases like asbestosis and pleural plaques.
Statute of limitations
In most personal injury claims there is a statute that limits the time frame within which a victim can make an action. For asbestos-related cases, the statute of limitations differs according to the state. They are also different from other personal injury claims because asbestos-related diseases can take a long time to be apparent.
Due to the delaying nature of mesothelioma and other asbestos-related diseases the statute of limitations begins on the date of diagnosis, or death in wrongful death claims, rather than the date exposure. This discovery rule is the reason that victims and their families should seek out as soon as they can with an experienced New York asbestos lawyer.
When you file a asbestos lawsuit, there are a variety of aspects that must be considered. One of the most important is the statute of limitations. The statute of limitations is the time limit by which the victim must file a lawsuit. Failure to file a lawsuit will result in the case being thrown out. The statute of limitation differs from state to state and the laws vary greatly. However, the majority allow between one and six year after the victim was diagnosed.
In asbestos cases, defendants often make use of the statute of limitations as a defense to liability. For example, they may claim that the plaintiffs knew or should have been aware of their exposure and therefore had a legal obligation to inform their employer. This is an argument that is common in mesothelioma lawsuits and can be difficult for the victim to prove.
A defendant in an asbestos case may also claim that they didn’t have the resources or means to warn about the dangers of the product. This is a complicated argument and largely depends on the evidence available. In California, for example, it was successfully claimed that defendants were not equipped with “state-ofthe-art” information and could not be expected give adequate warnings.
Generally, it is best to file the asbestos lawsuit in the state of the victim’s residence. However, there are certain circumstances where it may be beneficial to file the lawsuit in a different state. This is usually connected with the location of the employer, or where the person was exposed to asbestos.
Bare Metal
The defense of bare metal is a common strategy employed by manufacturers of equipment in asbestos litigation. It asserts that because their products were manufactured as bare metal, they had no obligation to warn consumers of the dangers of asbestos lawyer-containing products that were added by other parties at a later date for example, thermal insulation and flange gaskets. This defense has been embraced in certain states, but it’s not available under federal law in all states.
The Supreme Court’s decision in Air & Liquid Sys. Corp. v. DeVries has reshaped the law. The Court has ruled against the manufacturers’ preferred bright line rule and instead established an entirely new standard that states that manufacturers have a responsibility to inform consumers if they know that its product is likely to be harmful for its intended purposes and has no reason to believe that its end users will be aware of that risk.
While this change in law could make it harder for plaintiffs to bring claims against manufacturers of equipment, it’s not the end of the story. For one reason, the DeVries decision is not applicable to state-law claims that are based on negligence or strict liability, and are not brought under the federal maritime law statutes, such as the Jones Act or the Maritime Claims Act.
Plaintiffs will continue to pursue an expanded interpretation 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 that state recognizes this defense. The plaintiff who died in this instance was a carpenter who had been exposed to switchgear, turbines and other asbestos attorney-containing equipment at the Texaco refinery.
In a similar case in Tennessee, a Tennessee judge has indicated that he will take the third approach to bare metal defense. 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, including Equipment Defendants. The judge in the case decided that the bare metal defense applies to cases similar to this. The Supreme Court’s DeVries decision will affect the way judges use the bare-metal defense in other contexts.
Defendants’ Experts
Asbestos lawsuits are complicated and require skilled lawyers with a deep understanding of medical and legal issues as well as access to top experts. EWH attorneys have decades of experience in asbestos litigation, which includes investigating claims, creating litigation management plans and strategic budgets, identifying and bringing in experts, and defending plaintiffs and defendants in expert testimony at trials and depositions.
Typically asbestos cases require the testimony of medical professionals like pathologists and radiologists who can testify regarding X-rays or CT scans that show scarring of the lung tissue that is typical of asbestos exposure. A pulmonologist can be able to testify about symptoms, such as breathing difficulties, which are similar to mesothelioma and other asbestos-related illnesses. Experts can provide a detailed account of the plaintiff’s work background, including an analysis of their tax and social security, union and job records.
It could be necessary to consult a forensic engineer or an environmental scientist to determine the cause of asbestos exposure. These experts can help defense attorneys argue that the alleged asbestos was not exposed at work and instead was ingested through clothing worn by workers or from the outside air (a common defense in mesothelioma cases).
Many plaintiffs’ attorneys will employ economic loss experts to calculate the financial losses incurred by victims. These experts will be able to determine how much money a victim has lost due to their illness and the impact it has had on their life. They can also testify on expenses such as medical bills and the cost of hiring someone else to complete household chores a person is no longer able to do.
It is essential for defendants to challenge plaintiff’s expert witnesses, especially in cases where they have given evidence in dozens, or hundreds of other asbestos-related claims. If they repeat their testimony, these experts may lose credibility with jurors.
In asbestos attorney cases, defendants may also request summary judgment in cases where they can demonstrate that the evidence does NOT prove that the plaintiff suffered injury due to exposure to the products of the defendant. A judge will not give summary judgment just because a defendant points out gaps in the plaintiff’s proof.
Trial
The latency issues involved in asbestos cases mean that getting an accurate diagnosis can be nearly impossible. The time between exposure and disease can be measured in years. Therefore, determining the facts on which to create a case, will require a thorough examination of the entire work history. This typically involves a thorough examination of social security as well as tax, union and financial records, as in interviews with co-workers and family members.
Asbestos patients often develop less serious illnesses such as asbestosis prior to a mesothelioma diagnose. Due to this, the ability of a defendant to show that the plaintiff’s symptoms could be due to another disease other than mesothelioma can be beneficial in settlement negotiations.
In the past, certain lawyers employed this strategy to avoid responsibility and receive large sums. However, as the defense bar has grown, this approach has been largely rejected by the courts. This is particularly evident in federal courts where judges have routinely dismissed such claims due to the absence of evidence.
As a result, an accurate assessment of every potential defendant is crucial to a successful asbestos litigation defense. This includes assessing the severity and length of the illness and the extent of the exposure. For instance, a worker who has mesothelioma will likely to suffer greater damages than a person who only has asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation for product manufacturers, suppliers and distributors contractors, employers and property owners. Our attorneys have extensive experience in the role of National Trial and National Coordinating Counsel, and are frequently appointed by courts as liaison counsel to handle the prosecution of asbestos dockets.
Asbestos cases can be complex and costly. We assist our clients in understanding the potential risks associated with this type of litigation. We assist them in establishing internal programs that will identify potential liability and safety concerns. Contact us today to find out more about how our company can protect your company’s interests.
