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 are knowledgeable in the many issues that arise when the defense of asbestos cases such as jurisdictional Case Management Orders and expert selection.

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

Statute of limitations

In most personal injury cases, a statute of limitation establishes a time limit for the time after an accident or injury the victim is able to file a lawsuit. For asbestos, the statute of limitations is different by state and is different from other personal injury cases due to the fact that asbestos-related diseases can take a long time to manifest.

Due to the delayed nature of mesothelioma and asbestos-related diseases the statute of limitations clock starts at the date of diagnosis (or death, lawsuit in cases of wrongful death) rather than at the date of exposure. This discovery rule is why the families of victims should seek out as soon as they can with a reputable New York asbestos lawyer.

There are many aspects to consider when filing an asbestos lawsuit. The statute of limitations is among the most important. The statute of limitations is the time limit at which the victim has to file a lawsuit. Failure to do so will result in the case being thrown out. The statute of limitation is different from state to state and the laws differ greatly. However, most allow between one and six years after the victim was diagnosed.

During an asbestos case, the defendants will often try to use 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 asbestos exposure and had a duty of notification to their employer. This is a common argument in mesothelioma lawsuits and isn't easy for the victim to prove.

Another possible defense in an asbestos case is that the defendants didn't have the resources or the means to warn people of the dangers associated with the product. This is a complex argument and largely depends on the evidence that is available. In California, for example it was claimed that defendants were not equipped with "state-ofthe-art" information and were not able to give adequate warnings.

In general, it is recommended to file the asbestos lawsuit in the state where the victim's residence. In some cases, it may make sense to bring a lawsuit in a state other than the victim's. It usually has to do with do with where the employer is located or where the worker was first exposed to asbestos.

Bare Metal

The defense of bare metal is a common strategy employed by manufacturers of equipment in asbestos litigation. The bare metal defense argues 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 materials added later by other parties, such as thermal insulating and flange seals. This defense is accepted in certain jurisdictions, but not in all.

The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries changed the law. The Court did not accept 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 dangerous for the purpose it was designed for and has no reason to believe that the end customers will be aware of the risk.

While this change in law could make it harder for plaintiffs to prevail in claims against manufacturers of equipment, it's not the end of the tale. The DeVries decision is not applicable to state law claims based on strict liability or negligence, and is not applicable to claims brought under federal maritime law statutes like the Jones Act.

Plaintiffs will continue to pursue an expanded interpretation of the defense of bare metal. In the Asbestos Multi District Litigation in Philadelphia, for example, a case was remanded to an Illinois federal judge to determine whether that state recognizes this defense. The plaintiff who died in the case was a carpenter who was exposed to switchgear and turbines at an Texaco refinery which contained asbestos-containing components.

In the same case in Tennessee, an Tennessee judge has indicated that he is likely to take the third approach to bare metal defense. The plaintiff in the case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma while working on equipment that had been repaired or replaced by third-party contractors which included the Equipment Defendants. The judge in the case ruled that bare metal defenses are applicable to cases similar to this. The Supreme Court's decision in DeVries will affect the way judges apply the bare metal defense in other situations, such as those involving tort claims brought under state law.

Defendants' Experts

Asbestos litigation is complex and requires lawyers with a extensive knowledge of law and medicine, lawsuit as well as accessing experts of the highest caliber. EWH attorneys have decades of experience in asbestos litigation, which includes investigating claims, creating strategies for managing litigation, including budgets, as well as identifying and hiring experts as well as defending plaintiffs and defendants in expert testimony at trials and depositions.

Typically asbestos cases require testimony of medical professionals like pathologists and radiologists who can testify about X-rays or CT scans that show scarring of lung tissue typical of asbestos exposure. A pulmonologist may also be a witness to symptoms like difficulty breathing that are similar to those experienced by mesothelioma and other asbestos-related illnesses. Experts can provide a detailed account of the plaintiff's work history, including an analysis of their tax, social security, union and job records.

An forensic engineering or environmental scientist may be necessary to explain the cause of the asbestos exposure. These experts can help defendants argue that the alleged asbestos was not exposed at work and was instead brought home through clothing worn by workers or from the air outside (a common defense in mesothelioma cases).

Many attorneys representing plaintiffs employ economic loss experts to calculate the financial loss suffered by victims. These experts can calculate the amount of money a victim has lost due to their illness and its effect on his or her lifestyle. They can also testify about expenses such as medical bills as well as the cost of hiring a person to take care of household chores that the person can no longer perform.

It is crucial for defendants to challenge experts of the plaintiff, particularly when they have been called to testify in dozens or hundreds of asbestos-related cases. If they repeat their testimony, the experts may lose credibility among jurors.

In asbestos cases, defendants can also seek summary judgement in cases where they can demonstrate that the evidence does NOT show that the plaintiff was injured due to exposure to the products of the defendant. However the judge will not accept summary judgment simply because the defendant has pointed out weaknesses in the plaintiff's evidence.

Trial

The issues of latency in asbestos cases means that meaningful discovery can be nearly impossible. The lag between exposure and the appearance of the disease could be measured in decades. Therefore, determining the facts upon which to make a case requires a thorough review of a person's entire employment history. This often involves a thorough examination of social security as well as tax, union, and financial records, as along with interviews with coworkers and family members.

Asbestos sufferers are often diagnosed with less serious illnesses such as asbestosis prior to diagnosis of mesothelioma. Due to this the ability of a defendant to demonstrate that a plaintiff's symptoms may be due to a different illness than mesothelioma is valuable in settlement negotiations.

In the past, certain attorneys have employed this strategy to deny liability and obtain large amounts of money. However, as the defense bar has evolved and diversified, this strategy is generally rejected by the courts. This has been particularly evident in federal courts, where judges have routinely dismissed such claims based on lack of evidence.

A thorough evaluation of each potential defendant is essential to ensure a successful defense in asbestos litigation. This includes evaluating the severity and length of the disease as well as the nature of the exposure. For instance, a worker who has mesothelioma is likely to receive higher damages than someone who only has asbestosis.

The Bowles Rice Asbestos Litigation Team regularly defends suppliers, manufacturers, distributors, contractors 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 to manage asbestos dockets.

Asbestos litigation can be complicated and costly. We assist our clients to understand the risks involved in this type of litigation, and we assist them to develop internal programs that are proactive and detect liability and safety issues. Contact us today to find out more about how we can protect your company's interests.