Asbestos Litigation Defense
Cetrulo LLP is widely recognized as a leading expert in asbestos litigation defense. The firm's lawyers are frequently invited to present at national conferences. They are also well-versed on the numerous issues that arise when litigating asbestos cases.
Research has proven that exposure to asbestos can lead to 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 most personal injury claims there is a statute that limits the time frame within which a victim can file a claim. In asbestos cases, the statutes of limitations differ by state. They also differ from other personal injury lawsuits because asbestos-related diseases can take a long time to be apparent.
Due to the delay in the development of mesothelioma, and other asbestos-related illnesses, the statute of limitation begins on the date of diagnosis, or death in wrongful death claims rather than the date of exposure. This discovery rule is why victims and their family members need to work with a reputable New York mesothelioma lawyer as soon as possible.
There are a variety of factors to consider when filing an asbestos lawsuit. The statute of limitations is one of the most important. This is the date which the victim must make a claim by, and failure to file a lawsuit by the deadline could result in the case being barred. The time limit for filing a lawsuit varies according to state, and the laws vary greatly in some states, but the majority allow between one and six years from when the victim was diagnosed with an asbestos-related disease.
During an asbestos case, the defendants will often try to use the statute of limitations as a defense against liability. They could argue, for example, 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 a common defense in mesothelioma lawsuits, and is difficult to prove for the victim.
Another potential defense in an asbestos case is that the defendants did not have the resources or means to inform the public about the dangers associated with the product. This is a complex case and depends largely on the evidence available. For instance it was successfully presented in California that defendants didn't possess "state-of-the-art" knowledge and thus could not be expected to provide adequate warnings.
Generally speaking, it is preferential to start the asbestos lawsuit in the state where the victim's home. In some cases it might be beneficial to make a claim in a different state than the victim's. It usually has to do with relate to where the employer is located or where the person was first exposed to asbestos.
Bare Metal
The"bare metal" defense is a common strategy employed by manufacturers of equipment in asbestos litigation. The bare-metal defense claims that since their products left the factory as bare steel, they didn't have a duty to warn about the dangers posed by asbestos-containing materials later added by other parties, like thermal insulating and flange seals. This defense has been accepted in some jurisdictions, but it is not available under federal law in all states.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed that. The Court did not accept manufacturers' preferred bright-line rule and instead created the standard that requires manufacturers to inform consumers when they are aware that their product is unsafe for its intended purpose. They have no reason to think that the users who purchase the product will be aware of this danger.
While this change in law could make it more difficult for plaintiffs to bring claims against equipment manufacturers, it is 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 not brought under federal maritime law statutes like the Jones Act.
Plaintiffs will continue to pursue a wider interpretation of the bare metal defense. In the Asbestos Multi District Litigation in Philadelphia for instance the case was remanded back to an Illinois federal judge to determine if the state recognizes this defense. The deceased plaintiff in this claim was carpenter who was exposed to switchgear, turbines and other asbestos-containing equipment at an Texaco refinery.
In the same case in Tennessee, the Tennessee judge has indicated that he will adopt the third view of the defense of bare-metal. The plaintiff in the case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma after working on equipment that had been repaired or replaced by third-party contractors which included the Equipment Defendants. The judge in that case held that the bare metal defense applies to cases similar to this. The Supreme Court's decision in DeVries will have an impact on how judges apply the bare metal defense in other situations for example, those involving tort claims brought under state law.
Defendants' Experts
Asbestos lawsuits are complex and require experienced lawyers with a thorough understanding of medical and legal issues and access to top experts. EWH attorneys EWH have decades of experience in assisting clients with various asbestos litigation matters including investigating claims, preparing strategic budgets and litigation management plans, identifying 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 like pathologists and radiologists who can testify about X-rays or CT scans that reveal scarring of the lung tissue typical of asbestos exposure. A pulmonologist may also be a witness to symptoms like breathing difficulties and coughing, which are similar to those experienced by mesothelioma, as well as other asbestos-related diseases. Experts can also provide a detailed history of work performed by the plaintiff, such as a review of employment, union, tax, and social security records.
It could be necessary to consult an engineer from the forensic field 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 air outside (a common defense in mesothelioma cases).
A lot of plaintiffs' lawyers employ experts in economic loss to determine the monetary loss suffered by victims. These experts can calculate how much money a victim has lost due to their disease and the impact it affected their life. They can also testify about expenses such as the cost of medical bills and the price of hiring someone to perform household chores that a person is unable to do anymore.
It is important that defendants challenge the plaintiffs' expert witnesses, particularly in the event that they have testified on hundreds or even hundreds of asbestos claims. If they repeat their testimony, the experts may lose credibility with jurors.
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 grant summary judgement just because a defendant identifies holes in the plaintiff's proof.
Going to Trial
The delays involved in asbestos cases mean that getting an accurate diagnosis can be nearly impossible. The duration between exposure and illness can be measured by decades. As such, establishing the facts on which to make a case requires a review of the 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 patients are more likely to develop less serious ailments like asbestosis prior to the diagnosis of mesothelioma. Due to this the capacity of a defendant to show that a plaintiff's symptoms might be due to another disease other than mesothelioma can be beneficial in settlement negotiations.
In the past, certain lawyers have employed this method to avoid responsibility and receive large sums. As the defense bar evolved and the courts have generally rejected this strategy. This is particularly true for federal courts, where judges routinely dismiss such claims due to the absence of evidence.
A careful evaluation of every potential defendant is essential for a successful defense in asbestos litigation. This asbestos litigation group login includes assessing the duration and nature of the exposure, as well as the severity of any diagnosed disease. For instance a carpenter with mesothelioma is likely to be awarded more damages than someone who has only suffered from asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related lawsuits for manufacturers, distributors and suppliers contractors, employers, and property owners. Our attorneys have extensive experience in the role of National Trial and National Coordinating Counsel, and are regularly appointed by the courts as liaison counsel to manage the prosecution of asbestos dockets.
Asbestos litigation can be complex and costly. We help our clients recognize the risks involved in this type of litigation, and we collaborate with them to develop internal programs that are proactive and identify liability and safety concerns. Contact us today to find out more about how we can protect your company's interests.