Asbestos Litigation Defense
Cetrulo LLP is widely recognized as a leader in asbestos litigation defense. The firm's lawyers regularly participate in national conferences and are well-versed in the myriad issues that arise in the defense of asbestos cases, including jurisdictional Case Management Orders and expert selection.
Research has proven that exposure to asbestos causes lung damage and disease. This includes mesothelioma, and less serious diseases like asbestosis and plaques in the pleural cavity.
asbestos litigation paralegal of limitations
In the majority of personal injury cases, a statute of limitations establishes a time limit for how long after an accident or injury the victim is able to bring an action. In asbestos cases, the statute of limitations differs according to the state. They are also different from other personal injury lawsuits as asbestos-related illnesses can take years to manifest.
Due to the delay in the development of mesothelioma, and other asbestos-related diseases and other asbestos-related illnesses, the statute of limitations begins on the date of diagnosis, or death in wrongful death claims instead of the date of exposure. This discovery rule is the reason victims and their family members must consult an experienced New York mesothelioma lawyer as early as is possible.
When you file a asbestos lawsuit, there are many aspects that must be considered. The statute of limitations is one of the most important. This is the deadline that the victim has to file the lawsuit by, and failure to file a lawsuit by the deadline will cause the case to be barred. The time limit for filing a lawsuit varies from state to state, and the laws differ widely. However, the majority allow between one and six year after the date of diagnosis.
In an asbestos-related case in which the defendants are involved, they will typically try to use the statute of limitations as a defense against liability. They could argue for instance that the plaintiffs should have known or knew about 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 can be difficult to prove for the victim.
Another potential defense in an asbestos case is that the defendants did not have the resources or means to warn people of the dangers posed by the product. This is a complicated argument that relies on the evidence that is available. In California for instance it was argued that the defendants lacked "state-ofthe-art" information and were not able to provide adequate warnings.
In general, it's better to file an asbestos lawsuit in the state in which the victim resides. 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 be related to where the employer is located or where the worker was first exposed to asbestos.
Bare Metal
The"bare metal" defense is a common strategy employed by manufacturers of equipment in asbestos litigation. The bare metal defense argues that since their products left the plant as bare steel, they didn't have a responsibility to warn about the dangers of asbestos-containing materials later added by other parties, such as thermal insulating flange seals and flange seals. This defense is recognized in some jurisdictions, but not everywhere.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries has altered that. The Court has rejected the bright-line rule that manufacturers prefer and instead created the standard that requires a manufacturer to warn when they know that their product is dangerous for its intended purpose and have no reason to believe that users will be aware of the risk.
While this change in law could make it harder for plaintiffs to bring claims against equipment manufacturers, it is not the end of the tale. The DeVries decision does not apply 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 pursue an expanded interpretation of the defense of bare-metal. In the Asbestos Multi-District Litigation of Philadelphia for instance, a case was remanded to an Illinois federal judge to determine whether that state recognizes this defense. The plaintiff who died in that case was a carpenter who was exposed to switchgear and turbines at the Texaco refinery that contained asbestos-containing components.
In a similar instance, a judge in Tennessee has indicated that he will take a different approach to the 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, including the Equipment Defendants. The judge in the case decided that the bare metal defense applies to cases similar to this. The Supreme Court's DeVries decision will affect the way judges use the bare-metal defense in other situations.
Defendants' Experts
Asbestos litigation is complex and require skilled attorneys who have a thorough knowledge of both legal and medical issues as well as access to expert witnesses of the highest caliber. EWH attorneys have decades of experience in asbestos litigation, which includes investigating claims, developing strategies for managing litigation and budgets, identifying and bringing in experts and defending plaintiffs as well as defendants with expert testimony in depositions and trials.
Typically asbestos cases require testimony of medical professionals such as a radiologist and pathologist who can testify regarding X-rays or CT scans that show scarring of the lung tissue typical of asbestos exposure. A pulmonologist may also be a witness to symptoms like breathing difficulties and coughing, which are similar to symptoms of mesothelioma and other asbestos-related illnesses. Experts can provide an in-depth report of the plaintiff's job history, including an examination of his or her tax and social security and union records as well as job and employment details.
A forensic engineer or environmental science expert may be necessary to explain the cause of the asbestos exposure. These experts can help plaintiffs argue that the asbestos was not exposed at the workplace and was instead brought home through clothing worn by workers or in the air outside (a common defense in mesothelioma cases).
Many plaintiffs lawyers will bring in economic loss experts to establish the monetary losses incurred by the victims. They will be able to calculate the amount of money a victim lost as a result of their illness and its effect on their daily life. They can also testify about expenses like the cost of medical bills as well as the cost of hiring someone to do household chores that a person cannot perform anymore.
It is important that defendants challenge the plaintiffs experts, particularly when they have testified to dozens or hundreds of asbestos claims. Experts may lose credibility before jurors when their testimony is repeated.
In asbestos cases, defendants can also request summary judgment when they prove that the evidence does not establish that the plaintiff suffered any injuries from exposure to the defendant's product. However the judge will not grant summary judgment just because the defendant has pointed out holes in the plaintiff's proof.
Going to Trial
Due to the latency issues involved in asbestos cases, it can be difficult to make an accurate discovery. The time between exposure and the onset of the disease could be measured in years. To determine the facts on which to build a claim it is important to look over an individual's job history. This usually involves an exhaustive examination 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 diagnosis of mesothelioma. Due to this, the ability of a defendant to prove that a plaintiff's symptoms might be caused by a different disease that is not mesothelioma-related is crucial in settlement negotiations.
In the past, certain lawyers employed this strategy to deny responsibility and obtain large awards. As the defense bar has evolved, courts have generally resisted this approach. This is particularly true for federal courts, where judges often reject such claims due to lack of evidence.
A careful evaluation of every potential defendant is essential to ensure a successful defense in asbestos litigation. This includes assessing the severity and length of the illness as well as the type of the exposure. For instance, a worker who has mesothelioma is likely to suffer greater damages than someone who only has asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation for product manufacturers, suppliers and distributors contractors, employers and property owners. Our lawyers have served as National Trial and National Coordination Counsel and are regularly appointed as liaison counsel by courts to manage asbestos dockets.
Asbestos cases can be complex and costly. We help our clients understand the risks involved in this type of litigation and work with them to formulate internal programs to detect potential safety and liability concerns. Contact us today to find out how we can protect the interests of your company.