Asbestos Litigation Defense
Cetrulo LLP is widely recognized as a leader in asbestos litigation defense. The firm's lawyers regularly participate in national conferences and are well-versed in the many issues that arise when defending asbestos cases, including jurisdictional Case Management Orders and expert selection.
Research has proved that asbestos exposure can cause lung damage and disease. This includes mesothelioma as other lesser illnesses like asbestosis and pleural plaques.
Statute of limitations
In the majority of personal injury claims, a statute limits the time frame within the date a victim is able to file an action. For asbestos-related cases, the statutes of limitations vary by state. They are also different from other personal injury lawsuits because asbestos-related diseases can take years to be apparent.
Due to the delaying nature of mesothelioma as well as other asbestos-related diseases the statute of limitations begins on the date of diagnosis or death in the case of wrongful death rather than the date of exposure. This discovery rule is why victims and their families need to work as soon as they can with an experienced New York asbestos lawyer.
When filing an asbestos lawsuit, there are a variety of aspects that must be considered. Aurora asbestos lawsuit of the most important is the statute of limitations. The statute of limitations is the time limit at which the victim has to file a lawsuit. Failure to do so will result the case being barred. The time limit for filing a lawsuit differs from state to state and laws vary greatly. However, most states allow between one and six years after the date of diagnosis.
In asbestos cases when the defendants often attempt to invoke the statute of limitations as a defense against liability. For instance, they might argue that the plaintiffs knew or should have known about their exposure, and therefore had a duty to notify their employer. This is an argument that is common in mesothelioma litigation and isn't easy for the plaintiff to prove.
A defendant in an asbestos case could also argue that they didn't have the resources or the means to warn people about the dangers of the product. This is a complex case that relies heavily on the evidence available. For instance, it was successfully argued in California that defendants did not have "state-of-the-art" knowledge and could not be expected to give adequate warnings.
Generally, it is best to file the asbestos lawsuit within the state where the victim's home. In certain circumstances it may be appropriate to bring a lawsuit in a state other than the victim's. 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 method used by equipment manufacturers in asbestos litigation. It argues that since their products left the factory as raw metal, they were under no duty to warn of the dangers of asbestos-containing substances that were added by other parties later like thermal insulation and flange gaskets. This defense has been accepted in some areas, 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 rejected the manufacturers' preferred bright line rule, and instead established the new standard under which manufacturers have a responsibility to inform consumers if they know that its integrated product will be harmful for its intended use and has no reason to believe that its final customers will be aware of the risk.
This change in law makes it more difficult plaintiffs to bring claims against equipment manufacturers. However it's not the end of the story. The DeVries decision does not apply to state-law claims which are based on strict liability, or negligence, and therefore not brought under federal maritime law statutes such as the Jones Act.
Plaintiffs will continue to pursue an expanded interpretation of the defense of bare metal. For example in the Asbestos MDL case in Philadelphia the case has been remanded back to an Illinois federal court to decide whether the state of Illinois recognizes the defense. The plaintiff who died in this instance was a carpenter who had been exposed to switchgear, turbines, and other asbestos-containing components at an Texaco refinery.
In a similar case a judge in Tennessee has signaled that he will take a different approach to the bare metal defense. The plaintiff in that case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma while working on equipment that had been repaired or replaced by contractors of third party, including the Equipment Defendants. The judge in that case ruled that the bare metal defense is applicable to cases like this. The Supreme Court's DeVries decision will affect the way judges apply the bare metal defense in other situations.
Defendants' Experts
Asbestos litigation is a complex affair and requires lawyers with deep medical and legal knowledge, as well as accessing experts of the highest caliber. Attorneys at EWH have decades of experience helping clients in a variety of asbestos litigation matters including investigating claims, developing strategic budgets and litigation management strategies, finding and retaining experts, and defense of defendants and plaintiffs expert testimony in deposition and during trial.
Typically, asbestos cases require the testimony of medical professionals such as pathologists and radiologists who can testify regarding X-rays or CT scans that show the lung tissue being damaged that is typical of asbestos exposure. A pulmonologist may also testify regarding symptoms, like breathing problems, which are similar to mesothelioma and other asbestos-related illnesses. Experts can also provide full details of the work performed by the plaintiff, including an examination of the worker's union, tax, and social security documents.
A forensic engineering or environmental science expert may be required to explain the source of the asbestos exposure. Experts in these fields can assist defendants argue that the alleged asbestos was not exposed at work and instead was ingested on workers' clothing or from the air outside (a common defense in mesothelioma cases).
Many attorneys representing plaintiffs employ economic loss experts to calculate the financial losses suffered by the victims. They can determine how much money a victim has lost due to their illness and the effect it has had on their life. They can also testify on expenses like medical bills and the cost of hiring someone else to complete household chores that a person cannot perform.
It is crucial for defendants to challenge the experts of the plaintiff, particularly when they have been called to testify in dozens or hundreds of asbestos-related cases. These experts can lose credibility with jurors when their testimony is repeated.
In asbestos cases, defendants may also seek summary judgement in cases where they can demonstrate that the evidence does NOT establish that the plaintiff was injured by exposure to the products of the defendant. A judge is not likely to issue a summary judgment merely because a defendant points out gaps in the plaintiff’s proof.
Going to Trial
The delays involved in asbestos cases mean that obtaining significant information can be almost impossible. The time between exposure and the onset of disease can be measured in decades. Therefore, determining the facts upon which to create a case, requires a thorough review of the entire work history. This typically involves a thorough examination of social security as well as tax, union and financial records, as well as interviews with co-workers and family members.
Asbestos victims often develop less serious illnesses like asbestosis before a mesothelioma diagnosis. Because of this, a defendant's ability to show that the plaintiff's symptoms stem from an illness other than mesothelioma can have significant significance in settlement negotiations.
In the past, some lawyers have employed this tactic to deny liability and obtain large amounts of money. As the defense bar grew, courts have generally resisted this approach. This is especially true in federal courts, where judges often reject such claims due to the absence of evidence.
Because of this, an accurate assessment of every potential defendant is essential to an effective asbestos litigation defense. This includes assessing the duration and nature of the exposure as well as the severity of any disease that is diagnosed. For instance, a carpenter who has mesothelioma is likely to be awarded higher damages than a person who has only suffered from asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation for product manufacturers suppliers and distributors contractors, employers and property owners. Our lawyers have years of experience serving as National Trial and National Coordinating Counsel. They are frequently appointed by the courts as liaison counsel to handle the prosecution of asbestos dockets.
Asbestos litigation can be complicated and expensive. We help our clients understand the risks involved in this type of litigation and we collaborate with them to create internal programs that will proactively identify liability and safety concerns. Contact us to learn how we can protect the interests of your company.