Asbestos Litigation Defense

Cetrulo LLP has been widely recognized as a leader in asbestos litigation. The attorneys of the Firm regularly speak at national conferences and asbestos law & litigation are well-versed in the myriad issues that arise when defending asbestos cases that include jurisdictional Case Management Orders and expert selection.

Research has proven that exposure to asbestos causes lung damage and diseases. This includes mesothelioma as well as lesser diseases like asbestosis and plaques in the pleural region.

Statute of limitations

In most personal injury claims, a statute limits the time limit within the date a victim is able to make a claim. In asbestos cases, statutes of limitations differ according to the state. They are also different from other personal injury lawsuits since asbestos-related illnesses may take a long time to manifest.

Due to the delay in the development of mesothelioma as well as other asbestos-related illnesses, the statute of limitation begins on the date of diagnosis, or death in wrongful death claims, rather than the date exposure. This discovery rule is the reason why the families of victims need to work as soon as they can with an experienced New York asbestos litigation cases lawyer.

There are many aspects to consider when making an asbestos lawsuit. One of the most important is the statute of limitations. This is the time limit that the victim has to make a claim by, and failure to file a lawsuit by the deadline will cause the case to be dismissed. The statute of limitation varies from state to state, and the laws vary greatly. However, the majority allow between one and six year after the date of diagnosis.

In an asbestos case defendants frequently make use of the statute of limitations as a defense to liability. They might argue, for example, that plaintiffs should have been aware or were aware of their exposure to asbestos and that they had the obligation of notifying their employer. This what is asbestos litigation a common argument used in mesothelioma lawsuits. It it can be difficult to prove for the victim.

Another possible defense in an asbestos case is that the defendants didn't have the resources or the means to inform the public about the dangers posed by the product. This is a complex argument that is largely based on the evidence that is available. For instance it was successfully made in California that the defendants did not have "state-of-the-art" expertise and therefore could not be expected to provide adequate warnings.

In general, it's better to start an asbestos lawsuit in the state in which the victim lives. However, there are some situations in which it might be appropriate to file the lawsuit in a different state. This is usually connected with the place of the employer or where the person was exposed to asbestos.

Bare Metal

The"bare metal" defense is a common strategy employed by manufacturers of equipment in asbestos litigation. It states that since their products left the factory as raw metal, they were under no obligation to warn about the dangers of asbestos-containing materials added by other parties at a later date like thermal insulation and flange gaskets. This defense is accepted in a few jurisdictions, but it is not a federally-approved option in all states.

The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries changed that. The Court rejected the manufacturers' preferred bright line rule, and instead, the new standard under which manufacturers have a responsibility to warn consumers if it is aware that its product is likely to be hazardous for its intended purposes and has no reason to believe that its end users will be aware of that risk.

This change in law makes it more difficult for plaintiffs to bring claims against manufacturers of equipment. However it's not the end of the road. First it is that the DeVries decision is not applicable to state-law claims that are made on the basis of negligence or strict liability and are not covered by federal maritime law statutes, like the Jones Act or the Maritime Claims Act.

Plaintiffs will continue to pursue a broader interpretation of the defense of bare metal. For instance in the asbestos MDL in Philadelphia, a case has been remanded to an Illinois federal court to decide whether the state is able to recognize the defense. The plaintiff who died in the case worked as a carpenter and was exposed to switchgear and turbines in the Texaco refinery that contained asbestos-containing parts.

In a similar case a judge in Tennessee has indicated that he'll take a different approach to the bare-metal defense. In the 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 ruled that bare metal defenses apply to cases like this. The Supreme Court's decision in DeVries will have an impact on how judges use the bare metal defense in other cases, such as those involving tort claims brought under state law.

Defendants' Experts

Asbestos litigation is complex and require experienced lawyers who have a thorough knowledge of legal and medical issues and access to top experts. EWH attorneys have years of experience in asbestos litigation, such as investigating claims, developing strategies for managing litigation and budgets, identifying and bringing in experts as well as defending plaintiffs and defendants in expert testimony at depositions and trials.

In most cases, asbestos cases require the testimony of medical professionals like a radioologist or pathologist. They can confirm that X-rays as well as CT scans show the typical lung tissue scarring caused by Asbestos Law & Litigation exposure. A pulmonologist could also testify on symptoms, such as breathing problems, which are similar to mesothelioma as well as other asbestos-related diseases. Experts can also provide an extensive history of the work done by the plaintiff, which includes an examination of the worker's union and tax records as well as social security documents.

A forensic engineering or asbestos law & litigation environmental scientist may be required to explain the source of the asbestos exposure. Experts in these fields can assist defendants argue that the alleged asbestos litigation paralegal was not exposed at work and was instead brought home on workers' clothing or from the outside air (a common defense in mesothelioma cases).

Many plaintiffs lawyers will call experts in economic loss to establish the monetary losses suffered by the victims. They can estimate the amount of money that a victim has lost due to their illness and its impact on their lifestyle. They can also testify to expenses like medical bills and the cost of hiring someone to perform household chores a person is no longer able to perform.

It is essential that defendants challenge the plaintiffs experts, particularly when they have testified to dozens or hundreds of other asbestos claims. If they repeat their testimony, the experts may lose credibility among jurors.

In latest asbestos litigation cases, defendants can also seek summary judgement in cases where they can demonstrate that the evidence doesn't prove that the plaintiff was injured by exposure to the products of the defendant. However, a judge will not accept summary judgment simply because the defendant has pointed out weaknesses in the plaintiff's evidence.

Trial

The delays involved in asbestos cases mean that obtaining significant information can be almost impossible. The duration between exposure and illness can be measured in decades. As such, establishing the facts that will build a case requires a thorough review of the entire work history. This requires a thorough examination of the individual's tax, social security and union financial documents, in addition to interviews with family members and colleagues.

Asbestos sufferers are often diagnosed with less serious diseases like asbestosis prior to the diagnosis of mesothelioma. Because of this, the ability of a defendant to demonstrate that plaintiff's symptoms are due to another disease than mesothelioma could be of significant value in settlement negotiations.

In the past, certain attorneys employed this strategy to deny responsibility and obtain large amounts of money. As the defense bar grew, courts have largely rejected this strategy. This is especially relevant in federal courts where judges have frequently dismissed claims based on lack of evidence.

An in-depth analysis of each potential defendant is therefore essential to be able to defend effectively in asbestos litigation. This involves evaluating both the severity and length of the disease and the extent of the exposure. For instance carpenters with mesothelioma is likely to be awarded more damages than someone who has only had asbestosis.

The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation for product manufacturers distributors and suppliers contractors, employers and property owners. Our attorneys have extensive experience serving as National Trial and National Coordinating Counsel, and are frequently appointed by courts as liaison counsel to handle the prosecution of asbestos litigation cases dockets.

Asbestos litigation can be complex and expensive. We help our clients to recognize 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 today to find out more about how our company can protect your company's interests.