Asbestos Litigation Defense

Cetrulo LLP is widely recognized as a leader in asbestos litigation defense. The attorneys of the Firm regularly participate in national conferences and are proficient in the many issues that arise in asbestos litigation such as jurisdictional Case Management Orders and expert selection.

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

Statute of limitations

In the majority of personal injury claims there is a statute that limits the time limit within which a victim may make a claim. In the case of asbestos the statute of limitations varies by state and differs from other personal injury cases due to the fact that asbestos-related diseases can take years to manifest.

Due to the delay in the development of mesothelioma and other asbestos-related diseases, the statute of limitation clock starts on the date of diagnosis, or death in wrongful death claims, rather than the date exposure. This discovery rule is the reason victims and their family members must consult an experienced New York mesothelioma lawyer as soon as possible.

There are many aspects to take into consideration when making an asbestos law and litigation lawsuit. One of the most important is the statute of limitations. This is the deadline which the victim must make a claim by, and failure to file a lawsuit by the deadline will result in the case being closed. The time limit for filing a lawsuit varies in each state, and laws differ greatly in some states, but the majority allow between one and six years from when the victim was diagnosed with an asbestos-related disease.

In an asbestos case defendants typically employ the statute of limitations as a defense against liability. They may say that, for instance, the plaintiffs should have known or had knowledge of their exposure to asbestos and that they had an obligation to notify their employer. This is a common argument in mesothelioma litigation, and it can be difficult for the victim to prove.

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

In general, it is best to make an asbestos lawsuit in the state where the victim resides. In some cases it might be beneficial to file a lawsuit in a different state than the victim's. This usually has to do with the location of the employer, or the location where the employee was exposed to asbestos.

Bare Metal

The defense of bare metal is a typical strategy used by equipment manufacturers in asbestos litigation. It states that since their products left the factory as unfinished metal, latest asbestos litigation they had no obligation to warn consumers of the dangers of asbestos-containing materials added by other parties at a later time, such as thermal insulation and flange gaskets. This defense is accepted in a few 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 the rules. The Court has ruled against the manufacturers' preferred bright line rule, and instead created a new standard under which manufacturers have a responsibility to warn consumers if it is aware that its product will be harmful for the purpose it was designed for and has no reason to believe that the end users will be aware of that risk.

Although this change in law could make it more difficult for plaintiffs to prevail in claims against equipment manufacturers, it is not the end of the story. First, the DeVries decision does not apply to state-law claims made on the basis of negligence or strict liability and are not brought under the federal maritime law statutes, like the Jones Act or the Maritime Claims Act.

Plaintiffs will continue to pursue a broader reading of the bare metal defense. For example, in the Asbestos MDL in Philadelphia, a case was remanded to an Illinois federal court to determine whether that state recognizes the defense. The plaintiff who died in the case was a carpenter, and was exposed to turbines and switchgear at the Texaco refinery which contained asbestos-containing components.

In the same case in Tennessee, the Tennessee judge has stated that he would take the third approach to 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 like this. The Supreme Court's DeVries decision will impact how judges apply the bare-metal defense in other situations.

Defendants' Experts

Asbestos litigation is a complex affair and requires attorneys with extensive knowledge of law and medicine as well as access to experts of the highest caliber. EWH attorneys EWH have years of experience in assisting clients with a variety of asbestos litigation issues, including analyzing claims, developing strategic budgets and plans for managing litigation, identifying and retaining experts, and defense of defendants and plaintiffs expert testimony in depositions and in court.

Typically, asbestos cases require the testimony of medical professionals, such as pathologists and radiologists who can testify about X-rays or CT scans that reveal scarring of the lung tissue typical of latest asbestos litigation exposure. A pulmonologist is also able to be a witness to symptoms like breathing difficulties that are similar to symptoms of mesothelioma, as well as other asbestos-related diseases. Experts can also provide a full details of the work performed by the plaintiff, including an examination of the worker's union and tax records as well as social security records.

A forensic engineer or environmental scientist may be required to clarify the cause of the asbestos exposure. Experts from these fields can assist the defendants argue that the asbestos exposure was not in the workplace, but brought to the home through clothing worn by workers or the outside air.

Many plaintiffs' attorneys will employ experts in economic loss to calculate the financial losses suffered by the victims. They can estimate the amount of money that a victim suffered due to their illness and the impact it had on their lifestyle. They can also testify on expenses such as medical bills and the cost of hiring someone to do household chores that a person is unable to perform.

It is important that plaintiffs challenge defendants' expert witnesses, particularly in the event that they have testified on dozens or hundreds of asbestos claims. These experts can lose credibility before jurors when their testimony is repeated.

Plaintiffs in asbestos cases may also request summary judgment when they show that the evidence doesn't establish that the plaintiff suffered any injuries caused by their exposure to the defendant's product. However the judge will not give summary judgment merely because the defendant cites gaps in the plaintiff's proof.

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 in years. Therefore, determining the facts upon which to create a case, requires a review of a person's entire employment history. This often involves a thorough review of social security and tax records, union and financial records as along with interviews with coworkers and family members.

Asbestos patients are more likely to develop less serious illnesses such as asbestosis prior to a mesothelioma diagnose. Because of this, a defendant's ability to prove that a plaintiff's symptoms are due to an illness other than mesothelioma could be of significant value in settlement negotiations.

In the past, a few attorneys have employed this strategy to deny liability and get large awards. However as the defense bar has evolved, this approach has been largely rejected by the courts. This is particularly true in federal courts, where judges often reject such claims due to lack of evidence.

A thorough evaluation of each potential defendant is essential to be able to defend effectively in asbestos litigation. This involves evaluating both the severity and length of the illness and the extent of the exposure. For example carpenters with mesothelioma may be awarded higher damages than a person who has only had asbestosis.

The Bowles Rice Latest Asbestos Litigation Litigation Team regularly defends suppliers, manufacturers contractors, distributors as well as property owners and employers in asbestos-related litigation. Our attorneys have been appointed as National Trial and National Coordination Counsel and are frequently appointed as liaison counsel by courts in order to manage asbestos dockets.

asbestos law and litigation cases can be complex and costly. We help our clients to understand the risks involved in this type of litigation, and we work with them to create internal programs that will proactively identify safety and liability concerns. Contact us to find out how we can safeguard the interests of your business.