Asbestos Litigation Defense
Cetrulo LLP is widely recognized as a leading expert in asbestos litigation defense. The attorneys of the Firm are regularly invited to present at national conferences. They are also knowledgeable in the myriad of issues that arise when defending asbestos cases.
Research has shown that asbestos exposure causes lung damage and disease. This includes mesothelioma, as other lesser illnesses like asbestosis and plaques in the pleural cavity.
Statute of limitations
In most personal injury cases there is a statute that limits the time period after which a victim can file a claim. In asbestos cases, statute of limitations differs according to the state. They also differ from other personal injury claims because asbestos-related diseases can take years to be apparent.
Due to the delayed nature mesothelioma, and other asbestos-related illnesses and other asbestos-related illnesses, the statute of limitations begins at the time of diagnosis, or death in wrongful death claims instead of the date of exposure. This discovery rule is that victims and their families must work as quickly as they can with a reputable New York asbestos lawyer.
When making an asbestos lawsuit, there are a variety of factors that must be considered. The statute of limitations is among the most crucial. This is the date that the victim has to file the lawsuit by, and failing to file a lawsuit by the deadline will cause the case to be dismissed. The statute of limitations differs from state to state and the laws differ widely. However, most allow between one and six years after the time that the victim was diagnosed.
During an asbestos case when the defendants often try to use the statute of limitations as a defense against liability. For example, they may argue that the plaintiffs knew or ought to have known about their exposure, and therefore had a legal obligation to inform their employer. This is a common argument in mesothelioma cases and it isn't easy for the victim to prove.
Another potential defense in a case involving asbestos is that the defendants didn't have the resources or means to inform the public about the dangers of the product. This is a complicated argument and largely depends on the evidence available. In California for instance, it was successfully claimed that defendants were not equipped with "state-ofthe-art" information and were not able to give adequate warnings.
In general, it's best to file an asbestos lawsuit in the state where the victim lives. However, there are some circumstances in which it might make sense to file the lawsuit in an alternative state. This usually has something to do with 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 claims that because their products left the plant in bare steel, they did not have a responsibility to warn about the dangers of asbestos containing materials added later by other parties, like thermal insulating seals and flanges. This defense is recognized in certain jurisdictions, but not in all.
The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries changed that. The Court has ruled against the preferred rule of manufacturers' bright line rule, and instead created a new standard under which manufacturers are required to warn if it knows that its product will be harmful for its intended purposes and has no reason to believe that the 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. The DeVries decision is not applicable to state-law claims which are based on strict liability, or negligence, and therefore not brought under federal maritime law statutes, such as the Jones Act.
Plaintiffs will continue pursuing a broader interpretation of the bare-metal defense. In the Asbestos Multi District Litigation in Philadelphia, for example, a case was remanded to an Illinois federal judge to determine if the state recognizes this defense. The plaintiff who died in that case was a carpenter, and was exposed to switchgear and turbines at a Texaco refinery that contained asbestos-containing parts.
In a similar case in Tennessee, an Tennessee judge has indicated that he will adopt the third view of bare metal defense. In that case, the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed with mesothelioma. He was employed on equipment that was repaired or replaced by third-party contractors, including Equipment Defendants. The judge in the case decided that the bare metal defense is applicable to cases such as this. The Supreme Court's DeVries decision will affect the way judges use the bare-metal defense in other situations.
Defendants' Experts
Asbestos lawsuits are complex and require experienced lawyers with a deep knowledge of both legal and medical issues and access to top experts. EWH attorneys EWH have decades of experience in assisting clients with various asbestos litigation matters including investigating claims, developing strategic budgets and plans for managing litigation, finding and retaining experts, and defense of defendants and plaintiffs expert testimony in deposition and during trial.
Typically, asbestos cases require the testimony of medical professionals like a radiologist and pathologist who testify on X-rays or CT scans that show the lung tissue being damaged that is typical of asbestos exposure. A pulmonologist could also testify on symptoms, like breathing problems, which are similar to mesothelioma and other asbestos-related diseases. Experts can also provide an extensive history of the work done by the plaintiff, which includes a review of employment, union and tax records as well as social security records.
Fort Wayne asbestos attorney or environmental scientist may be required to clarify the source of the asbestos exposure. Experts in these fields can assist plaintiffs argue that the asbestos was not exposed in the workplace and instead was ingested on the clothing of workers or from the outside air (a common defense in mesothelioma cases).
Many attorneys representing plaintiffs employ economic loss experts to determine the monetary losses suffered by the victims. They will be able to calculate the amount of money a victim has lost due to their illness and its impact on their lifestyle. They can also testify to costs like medical bills and the cost of hiring someone to perform household chores that an individual is no longer able to complete.
It is essential for defendants to challenge plaintiff's expert witnesses, especially in cases where they've given evidence in dozens, or hundreds of other asbestos-related claims. If they repeat their testimony, the experts may lose credibility with jurors.
In asbestos cases, defendants can also seek summary judgement when they can prove that the evidence does not establish that the plaintiff was injured due to exposure to the products of the defendant. A judge will not issue a summary judgment merely because a defendant identifies weaknesses in the plaintiff's evidence.
Trial
Due to the latency issues in asbestos cases, it can be difficult to make a significant discovery. The time between exposure and the appearance of the disease can be measured in decades. To determine the facts on which to build a case, it is necessary to examine an individual's employment background. This usually involves an exhaustive analysis of social security and tax records, union, and financial records as well as interviews with co-workers and family members.
Asbestos victims often develop less serious illnesses like asbestosis before a mesothelioma diagnosis. Because of this, a defendant's ability to demonstrate that plaintiff's symptoms are caused by another disease than mesothelioma can have significant importance in settlement negotiations.
In the past, certain attorneys have used this approach to deny responsibility and get large awards. As the defense bar evolved, courts have largely rejected this approach. This is especially true in federal courts, where judges regularly dismiss claims based on the absence of evidence.
A thorough evaluation of each potential defendant is crucial for a successful defense in asbestos litigation. This includes assessing the length and the nature of the exposure as in addition to the degree of any diagnosed illness. For instance carpenters with mesothelioma is likely to be awarded higher damages than one who has only had asbestosis.
The Bowles Rice Asbestos Litigation Team regularly defends product manufacturers, suppliers contractors, distributors as well as property owners and employers in asbestos-related litigation. Our lawyers have years of experience as National Trial and National Coordinating Counsel, and are frequently appointed by the courts as liaison counsel to manage the prosecution of asbestos dockets.
Asbestos litigation can be complex and expensive. We assist our clients in understanding the risks associated with this type of litigation. We collaborate with them to develop internal programs to detect potential safety and liability concerns. Contact us to find out how we can safeguard the interests of your business.