Asbestos Litigation Defense
Cetrulo LLP is widely recognized as a leader in asbestos litigation defense. The Firm's attorneys regularly participate in national conferences and are knowledgeable in the myriad of issues that arise in asbestos litigation, including jurisdictional Case Management Orders and expert selection.
Research has proven that exposure to asbestos can cause lung damage and cause lung disease. This includes mesothelioma and lesser diseases such as asbestosis and plaques in the pleural cavity.
Statute of Limitations
In the majority of personal injury cases, a statute of limitations defines a time frame for the length of time that follows an accident or injury, the victim is allowed to file an action. In asbestos cases, statutes of limitations differ by state. They are also different from other personal injury claims as asbestos-related illnesses can take a long time to be apparent.
Due to the delay in the development of mesothelioma and asbestos-related diseases the statute of limitation begins at the time of diagnosis (or death, in cases of wrongful death) instead of the time of exposure. This discovery rule is why the victims and their families should consult an experienced New York mesothelioma lawyer as soon as possible.
When filing an asbestos lawsuit, there are many aspects that must be considered. The statute of limitations is one of the most important. The statute of limitations is the date at which the victim has to make a claim. Failure to file a lawsuit will result the case being thrown out. The statute of limitations varies by state, and the laws vary greatly however, most states allow between one and six years from when the victim was diagnosed with an asbestos-related illness.
In asbestos cases defendants typically use the statute of limitation as a defense to liability. They may say, for example, that plaintiffs should have been aware or knew about their asbestos exposure and had an obligation to notify their employer. This is a common argument used in mesothelioma lawsuits and can be difficult to prove for the victim.
Another potential defense in an asbestos case is that the defendants did not have the means or resources to inform the public about the dangers of the product. This is a complex argument and largely depends on the evidence available. In California, for example, it was successfully argument that defendants did not have "state-ofthe-art" information and therefore could not give adequate warnings.
In general, it's better to file an asbestos lawsuit in the state in which the victim lives. In some cases it might be beneficial to bring a lawsuit in a state other than the victim's. This usually has something to be related to the location of the employer or where the person was first exposed to asbestos.
Bare Metal
The bare-metal defense is a strategy used by equipment manufacturers in asbestos litigation. The bare-metal defense claims that because their products left the plant as untreated steel, they didn't have a duty to inform about the dangers of asbestos-containing materials later added by other parties, for instance thermal insulating seals and flanges. This defense is accepted in some jurisdictions but not all.
The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries has altered that. The Court did not accept the bright-line rule that manufacturers prefer and instead established the standard that requires a manufacturer to warn if they know that their product is unsafe for its intended use and have no reason to believe that the users who purchase the product will realize this risk.
Although this change in law could make it harder for plaintiffs to prevail in claims against equipment manufacturers, it is not the end of the story. First reason, the DeVries decision is not applicable to state-law claims that are founded on negligence or strict liability and are not covered under federal maritime law statutes, such as the Jones Act or the Maritime Claims Act.
Plaintiffs will continue pursuing a broader interpretation of the defense of bare metal. For example, in the Asbestos MDL case in Philadelphia the case was remanded to an Illinois federal court to decide whether the state of Illinois recognizes the defense. The deceased plaintiff in that claim worked as a carpenter and was exposed to switchgear and turbines at a Texaco refinery which contained asbestos-containing components.
In a similar case in Tennessee, a Tennessee judge has stated that he would take the third approach to the defense of bare-metal. The plaintiff in that case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma while working on equipment that was repaired or replaced by contractors of third party which included the Equipment Defendants. The judge in the case decided that the bare-metal defense is applicable to cases similar to this. The Supreme Court's decision in DeVries will affect the way judges apply the bare metal defense in other contexts like those that involve tort claims under state law.
Defendants' Experts
Asbestos litigation is complex and requires lawyers with deep medical and legal knowledge as well as access to top experts. Attorneys at EWH have decades of experience helping clients in various asbestos litigation matters including investigating claims, preparing strategic budgets and litigation management strategies as well as finding and retaining experts, and defense of defendants and plaintiffs expert testimony in deposition and at trial.
Typically, asbestos cases require the testimony of medical professionals, such as a radiologist and pathologist who can testify regarding X-rays or CT scans that reveal scarring of lung tissue typical of asbestos exposure. A pulmonologist can also testify on symptoms, like breathing problems, which are similar to mesothelioma and other asbestos-related diseases. Experts can also provide a detailed history of work performed by the plaintiff, such as a review of job, union, tax, and social security documents.
where asbestos litigation taken is possible to consult a forensic engineer or an environmental scientist in order to determine the cause of asbestos exposure. These experts can help plaintiffs argue that the asbestos was not exposed in the workplace and instead was brought home on the clothing of workers or from the outside air (a common defense in mesothelioma cases).
Many plaintiffs' attorneys will employ economic loss experts to assess the financial loss suffered 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 to perform household chores that one cannot perform anymore.
It is important for defendants to challenge experts of the plaintiff, particularly in cases where they have testified in dozens or even hundreds of asbestos-related cases. Experts can lose credibility with the jury if their testimony is repeated.
In asbestos cases, defendants can also seek summary judgement if they can show that the evidence doesn't establish that the plaintiff was injured due to exposure to the defendant's products. A judge will not give summary judgment just because a defendant has pointed out gaps in the plaintiff’s proof.
Going to Trial
The latency issues involved in asbestos cases mean that obtaining significant information can be almost impossible. The time between exposure and disease can be measured by decades. To establish the facts on which to build an argument it is important to examine an individual's employment history. This typically 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 patients often develop less serious illnesses such as asbestosis prior to a mesothelioma diagnose. Because of this, the ability of a defendant to show that the plaintiff's symptoms are caused by an illness other than mesothelioma could be of significant importance in settlement negotiations.
In the past, certain attorneys employed this strategy to deny responsibility and obtain large awards. However, as the defense bar has developed the strategy has been generally rejected by the courts. This is particularly true for federal courts, where judges regularly dismiss claims based on lack of evidence.
This is why a careful evaluation of each potential defendant is essential for an effective asbestos litigation defense. This includes assessing both the severity and length of the illness as well as the type of the exposure. For instance carpenters with mesothelioma will likely be awarded more damages than someone who has only suffered from 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 lawyers have been National Trial and National Coordination Counsel and are regularly appointed as liaison counsel by courts to handle asbestos dockets.
Asbestos cases can be complex and expensive. We assist our clients in understanding the risks associated with this type of litigation and work with them to formulate internal programs designed to proactively identify potential safety and liability issues. Contact us today to find out how we can protect your business's interests.