Asbestos Litigation Defense
Cetrulo LLP is widely recognized as an industry leader in asbestos litigation defense. The Firm's attorneys regularly participate in national conferences and are proficient in the myriad issues that arise in defending asbestos cases that include jurisdictional Case Management Orders and expert selection.
Research has shown that asbestos exposure causes lung damage and diseases. This includes mesothelioma, and lesser diseases such as asbestosis and pleural plaques.
Statute of limitations
In most personal injury claims statutes limit the time period after the date a victim is able to make a claim. For asbestos the statute of limitations varies by state and differs from in other personal injury claims due to the fact that asbestos-related diseases can take years to show up.
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 should consult a reputable New York mesothelioma lawyer as soon as they can.
There are a variety of aspects to consider when making an asbestos lawsuit. The statute of limitations is among the most important. This is the deadline that the victim must submit the lawsuit by, and failure to file a lawsuit by the deadline could cause the case to be barred. The time limit for filing a lawsuit varies from state to state and the laws vary greatly. However, the majority allow between one and six years after the victim was diagnosed.
In an asbestos-related case when the defendants often attempt to invoke the statute of limitations to defend against liability. For instance, they might claim that the plaintiffs knew or should have known about their exposure and therefore were required to inform their employer. This is an argument that is common in mesothelioma cases and it can be difficult for the plaintiff to prove.
A defendant in an asbestos case could also argue that they didn't have the resources or means to warn people about the dangers of the product. This is a complex argument and largely depends on the evidence that is available. In California for instance it was claimed that defendants were not equipped with "state-ofthe-art" information and therefore could not give adequate warnings.
In general, it's better to file an asbestos lawsuit in the state where the victim resides. However, there are certain circumstances in which it might make sense to file the lawsuit in a different state. This usually has to do with the location of the employer or where the person was exposed to asbestos.
Bare Metal
The defense of bare metal is a standard strategy used by manufacturers of equipment in asbestos litigation. The bare-metal defense claims that because their products left the plant as bare steel, they did not have a duty to warn about the dangers posed by asbestos-containing products later added by other parties, like thermal insulating seals and flanges. This defense has been accepted in some jurisdictions, but it is not available under federal law in all states.
The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries changed the rules. The Court has rejected the bright-line rule of manufacturers and instead established a standard that requires manufacturers to inform consumers when they are aware that their integrated product is unsafe for its intended use and there is no reason to believe that the end users will be aware of the danger.
This change in law makes it more difficult for plaintiffs to file claims against manufacturers of equipment. However this isn't the end of the road. First it is that the DeVries decision does not apply to state-law claims that are made on the basis of negligence or strict liability, and are not brought under the federal maritime law statutes, including the Jones Act or the Maritime Claims Act.
Plaintiffs will continue to seek a more expansive interpretation of the bare metal defense. In the Asbestos Multi District Litigation in Philadelphia for instance, a case was remanded back to an Illinois federal judge to determine whether that state recognizes this defense. The plaintiff who died in that case worked as a carpenter and was exposed to switchgear and turbines at the Texaco refinery which contained asbestos-containing components.
In a similar case, a judge in Tennessee has indicated that he is likely to adopt a third view of the bare-metal defense. The plaintiff in that case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma after working on equipment that was repaired or replaced by contractors from third parties which included the Equipment Defendants. The judge in the case held that bare-metal defenses can be applied to cases like this. The Supreme Court's decision in DeVries will affect the way judges will apply the bare-metal defense in other contexts, such as those involving tort claims under state law.
Defendants' Experts
Asbestos litigation can be complex and requires lawyers with deep medical and legal knowledge, as well as accessing top experts. Attorneys at EWH have years of experience helping clients in a variety of asbestos litigation issues, including analyzing claims, preparing strategic budgets and litigation management strategies, identifying and retaining experts, and defending plaintiffs' and defendants expert testimony in deposition and during trial.
Typically, asbestos cases require the testimony of medical professionals like a radiologist and pathologist who can testify about X-rays or CT scans that reveal the lung tissue being damaged typical of asbestos exposure. A pulmonologist may also be a witness to symptoms like breathing difficulties and coughing, which are similar to those of mesothelioma and other asbestos-related illnesses. Experts can provide a detailed report of the plaintiff's job background, including an analysis of their tax and social security, union and job records.
Cary asbestos lawsuit may be necessary to consult a forensic engineer or an environmental scientist in order to determine the source of exposure to asbestos. Experts from these fields can assist defense attorneys argue that the asbestos exposure did not occur at the workplace, but brought into the home through the clothing of workers or by airborne particles.
Many of the plaintiffs lawyers will call experts in economic loss to determine the financial loss suffered by the victims. They will be able to calculate the amount of money a person lost as a result of their illness and the impact it had on their daily life. They can also testify about expenses such as the cost of medical bills as well as the cost of hiring a person to take care of household chores that one can no longer perform.
It is essential for defendants to challenge expert witnesses of the plaintiff, especially in cases where they have testified in dozens or even hundreds of asbestos-related claims. If they repeat their testimony, the experts may lose credibility with jurors.
In asbestos cases, defendants may also seek summary judgement if they can show that the evidence does not establish that the plaintiff was injured due to exposure to the defendant's products. A judge is not likely to give summary judgment just because a defendant points out holes in the plaintiff's proof.
Going to Trial
Due to the latency issues that are prevalent in asbestos cases, it can be difficult to make a meaningful discovery. The time between exposure and disease can be measured in decades. To establish the facts on which to build an argument, it is necessary to examine an individual's employment background. This requires a thorough examination of the individual's social security, tax and union records, as well as financial documents, in addition to interviews with family members and colleagues.
Asbestos-related victims are often diagnosed with less serious diseases such as asbestosis prior to a mesothelioma diagnosis. Because of this, the ability of a defendant to prove that a plaintiff's symptoms are caused by an illness other than mesothelioma may have a significant value in settlement negotiations.
In the past, some attorneys have used this strategy to deny liability and obtain large amounts of money. As the defense bar has evolved, courts have generally resisted this strategy. This has been particularly evident in federal courts where judges have routinely dismissed such claims due to the absence of evidence.
A careful evaluation of every potential defendant is essential to ensure a successful defense in asbestos litigation. This includes assessing the length and extent of exposure as in addition to the degree of any diagnosed illness. For instance, a carpenter who has mesothelioma will likely be awarded more damages than a person who has only suffered from asbestosis.
The Bowles Rice Asbestos Litigation Team regularly defends product manufacturers, suppliers, distributors, contractors and property owners as well as employers in asbestos-related litigation. Our attorneys have been National Trial and National Coordination Counsel and are frequently appointed as liaison counsel by courts in order to manage asbestos dockets.
Asbestos litigation can be complex and costly. We assist our clients to be aware of the risks associated with this type of litigation and we assist them to develop internal programs that will proactively detect liability and safety issues. Contact us today to learn more about how we can safeguard your company's interests.