Asbestos Litigation Defense
Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The attorneys of the Firm regularly participate in national conferences and are proficient in the myriad of issues that arise in asbestos litigation that include jurisdictional Case Management Orders and expert selection.
Research has shown that exposure to asbestos causes lung damage and diseases. This includes mesothelioma as well as less serious diseases like 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 how long after an accident or injury, the victim is able to bring an action. In the case of asbestos the statute of limitations varies by state and is different than other personal injury cases due to the fact that asbestos-related illnesses can take decades to manifest.
Due to the delaying nature of mesothelioma and asbestos-related diseases, the statute of limitations clock begins at the date of diagnosis (or death in the case of wrongful deaths) instead of the date of exposure. This discovery rule is why victims and their families must consult a reputable New York mesothelioma lawyer as early as is possible.
There are a myriad of factors to consider when filing an asbestos lawsuit. The statute of limitations is among the most crucial. This is the time limit which the victim must file the lawsuit by, and failing to file the lawsuit could cause the case to be closed. The statute of limitations differs by state, and the laws differ widely in some states, but the majority allow between one and six years from when the victim was diagnosed with an asbestos-related illness.
In asbestos cases, defendants often use the statute of limitation as a defense to liability. They may say, for example, that the plaintiffs should have known or had knowledge of their exposure to asbestos and that they had a duty of notification to their employer. This is a common argument used in mesothelioma lawsuits and it can be difficult to prove for the victim.
A defendant in an asbestos case may also argue that they did not have the resources or means to inform people about the dangers of the product. This is a complex case and depends largely on the evidence available. In California for instance, it was successfully argued that the defendants lacked "state-ofthe-art" information and therefore could not to provide sufficient warnings.
In general, it's better to start an asbestos lawsuit in the state in which the victim lives. In some cases it may be appropriate to make a claim in a different state than the victim's. It usually has to do with be related to where the employer is located or where the person was first exposed to asbestos.
Bare Metal
The defense of bare metal is a tactic used by equipment manufacturers in asbestos litigation. It asserts that because their products were manufactured as unfinished metal, they had no duty to warn of the dangers of asbestos-containing substances that were added by other parties at a later date, such as thermal insulation and gaskets for flanges. This defense is accepted in certain jurisdictions, but not all.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the law. The Court rejected the preferred rule of manufacturers' bright line rule, and instead, a new standard under which a manufacturer has a duty to warn consumers if it is aware that its product will be dangerous for its intended use and has no reason to believe that the end customers will be aware of the risk.
Although this change in law may make it harder for plaintiffs to prevail in claims against manufacturers of equipment, it's not the end of the story. The DeVries decision is not applicable 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 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 plaintiff who died in this instance was a carpenter who was exposed to turbines, switchgear and other asbestos-containing equipment at an Texaco refining facility.
In the same case in Tennessee, a Tennessee judge has indicated that he is likely to adopt the third view of the defense of bare-metal. In that case the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed as having mesothelioma. He was employed on equipment that was repaired or replaced by third party contractors, which included Equipment Defendants. The judge in the case decided that the bare metal defense is applicable to cases such as this. The Supreme Court's DeVries decision will influence how judges apply the bare metal defense in other contexts.
Defendants' Experts
Asbestos litigation is complex and require skilled attorneys with a deep understanding of medical and legal issues, as well as access to top experts. EWH attorneys EWH have decades of experience assisting clients in a variety of asbestos litigation issues, including analyzing claims, preparing strategic budgets and plans for managing litigation in hiring and retaining experts and defending plaintiffs' and defendants expert testimony in depositions and in court.
Typically, asbestos cases will require the testimony of medical professionals like a radioologist or pathologist. They can confirm that X-rays as well as CT scans reveal the typical lung tissue scarring that is due to asbestos exposure. A pulmonologist is also able to testify about symptoms such as breathing difficulties that are similar to those experienced by mesothelioma or other asbestos-related diseases. Experts can provide an in-depth description of the plaintiff's employment background, which includes an analysis of their tax, social security, union and job records.
A forensic engineer or environmental science expert could be necessary to explain the cause of the asbestos exposure. Experts in these fields can assist plaintiffs argue that the asbestos was not exposed in the workplace and was instead brought home through clothing worn by workers or from the outside air (a common defense in mesothelioma cases).
Many of the plaintiffs lawyers will call experts in economic loss to determine the financial loss suffered by the 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 to costs like medical bills and the cost of hiring someone to perform household chores that an individual is no longer able to do.
It is important for defendants to challenge expert witnesses of the plaintiff, especially in cases where they have given evidence in dozens, or hundreds of asbestos-related cases. If they repeat their testimony, these experts asbestos litigation wiki may lose credibility with jurors.
Plaintiffs in asbestos cases may also request summary judgment if they can demonstrate that the evidence does not prove that the plaintiff suffered injuries from exposure to the defendant's product. However a judge won't give summary judgment merely because the defendant has pointed out weaknesses in the plaintiff's evidence.
Going to Trial
The delays involved in asbestos cases means that significant information can be almost impossible. The time between exposure and the onset of disease can be measured by decades. To determine the facts upon which to base an argument it is important to look over an individual's job background. This usually involves an exhaustive analysis of social security and tax records, union, and financial records, as in interviews with co-workers and family members.
Asbestos sufferers are often diagnosed with less serious diseases like asbestosis prior to the diagnosis of mesothelioma. Because of this, a defendant's ability to prove that a plaintiff's symptoms are due to a disease other than mesothelioma could be of significant importance in settlement negotiations.
In the past, certain lawyers have employed this method to deny responsibility and obtain large awards. However, as the defense bar has developed and diversified, this strategy has been generally rejected by the courts. This is particularly relevant in federal courts where judges have routinely dismissed such claims based on lack of evidence.
This is why an accurate assessment of each potential defendant is essential to an effective asbestos litigation defense. This includes assessing the severity and duration of the disease and the extent of the exposure. For instance, a worker who has mesothelioma is likely to suffer more damages than someone who only has asbestosis.
The Bowles Rice Asbestos Litigation Team regularly defends product manufacturers, suppliers contractors, distributors and property owners as well as employers in asbestos related litigation. Our attorneys have extensive experience in the role of National Trial and National Coordinating Counsel. They are frequently appointed by the courts as liaison counsel to handle the prosecution of asbestos dockets.
Asbestos cases can be complex and costly. We help our clients understand the risks involved in this type of litigation, and we assist them to create internal programs that are proactive and detect liability and safety issues. Contact us today to learn more about how our company can protect your business's interests.