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Asbestos Litigation Defense

Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The attorneys of the Firm are regularly invited to give presentations at national conferences. They are also knowledgeable on the numerous issues that arise when trying to defend asbestos law and litigation cases.

Research has demonstrated that asbestos exposure can cause lung diseases and damage. This includes mesothelioma as well as lesser illnesses like asbestosis and pleural plaques.

Statute of limitations

In the majority of personal injury cases the statute of limitations establishes a time limit for the length of time that follows an accident or injury, the victim can file an action. For asbestos defense litigation-related cases, the statutes of limitations vary by state. They also differ from other personal injury claims as asbestos-related illnesses can take years to manifest.

Due to the delayed nature of mesothelioma as well as other asbestos-related diseases the statute of limitation clock starts at the date of diagnosis (or death, in wrongful death cases) rather than at the time of exposure. This discovery rule is why victims and their families must consult an experienced New York mesothelioma lawyer as early as is possible.

When you file a asbestos lawsuit, there are a variety of aspects that must be considered. One of the most important is the statute of limitations. This is the time limit that the victim must submit the lawsuit by, and failing to do so could result in the case being closed. The statute of limitations differs according to state, and the laws vary greatly, but most allow for between one and six years from when the victim was diagnosed with an asbestos-related illness.

During an asbestos case in which the defendants are involved, asbestos litigation defense they will typically try to use the statute of limitations to defend against liability. They could argue that, for instance, plaintiffs should have been aware or knew about their asbestos exposure and had the obligation of notifying their employer. This is a common argument in mesothelioma lawsuits and is difficult to prove for the victim.

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

In general, it's best to start an asbestos lawsuit in the state where the victim lives. However, there are certain circumstances where it may be beneficial to file the lawsuit in another state. This usually has to do with the place of the employer or the place where the worker was exposed to asbestos.

Bare Metal

The bare-metal defense is a strategy used by equipment manufacturers in asbestos litigation. The bare metal defense asserts that because their products left the factory as untreated steel, they didn't have a duty to inform about the dangers of asbestos containing materials added later by other parties, for instance thermal insulating flange seals and flange seals. This defense is accepted in certain jurisdictions, but not all.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the law. The Court did not accept the manufacturers' preferred bright line rule and instead, a new standard under which manufacturers have a responsibility to inform consumers if they know that its product is likely to be harmful for its intended use and has no reason to believe that its end users will realize that risk.

Although this change in law may make it harder for plaintiffs to bring claims against equipment manufacturers, it is not the end of the tale. First, the DeVries decision does not apply to state-law claims made on the basis of negligence or strict liability and are not covered by federal maritime law statutes, including the Jones Act or the Maritime Claims Act.

Plaintiffs will continue to seek a more expansive reading of the bare metal defense. In the Asbestos Multi-District Litigation in Philadelphia, for example the case was remanded to an Illinois federal judge to determine if that state recognizes this defense. The plaintiff who died in this case was a carpenter who was exposed to turbines, switchgear and other asbestos-containing equipment at a Texaco refining facility.

In the same case in Tennessee, an Tennessee judge has stated that he would adopt the third view of the defense of bare metal. The plaintiff in that case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma while working on equipment that was repaired or replaced by third-party contractors which included the Equipment Defendants. The judge in that case held that the bare-metal defense is applicable to cases such as this. The Supreme Court's DeVries decision will impact how judges apply the bare-metal defense in other situations.

Defendants' Experts

Asbestos lawsuits are 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. The attorneys at EWH have decades of experience helping clients in various asbestos litigation issues, including analyzing claims, developing strategic budgets and litigation management plans as well as hiring and retaining experts and defense of defendants and plaintiffs expert testimony during deposition and asbestos litigation (Http://herna.net) during trial.

Typically asbestos cases require testimony of medical professionals such as pathologists and radiologists who testify on X-rays or CT scans that show scarring of lung tissue that is typical of asbestos exposure. A pulmonologist can also testify on symptoms, Asbestos litigation defense such as 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, including an examination of the worker's union, tax, and social security documents.

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

Many plaintiffs lawyers will bring experts from the field to assess the financial losses incurred by the victims. These experts will be able to determine how much money a victim has lost due to disease and the impact it has had on their life. They can also testify on expenses like medical bills and the cost of hiring someone else to complete household chores that an individual cannot do.

It is crucial that defendants challenge plaintiffs expert witnesses, especially when they have testified to hundreds or dozens of other asbestos claims. If they repeat their testimony, these experts may lose credibility with jurors.

Plaintiffs in asbestos cases may also apply for summary judgment if they can demonstrate that the evidence does not prove that the plaintiff suffered any injuries due to their exposure to the defendant's product. A judge is not likely to issue a summary judgment merely because a defendant points out weaknesses in the plaintiff's evidence.

Going to Trial

The latency issues involved in asbestos cases mean that getting meaningful discovery can be nearly impossible. The duration between exposure and illness can be measured by decades. As such, establishing the facts upon which to make a case requires a thorough review of the entire work history. This often involves a thorough analysis of social security, union, tax, and financial records, as in interviews with co-workers and family members.

Asbestos-related victims are often diagnosed with less serious illnesses like asbestosis prior to a mesothelioma diagnosis. Due to this the capacity of a defendant to prove that the plaintiff's symptoms could be caused by a different disease other than mesothelioma can be beneficial in settlement negotiations.

In the past, certain lawyers have employed this method to deny responsibility and obtain large amounts of money. As the defense bar evolved and the courts have generally rejected this approach. This has been particularly true in the federal courts, where judges have often dismissed claims based on lack of evidence.

An in-depth analysis of each potential defendant is essential to ensure a successful defense in asbestos litigation. This includes assessing both the severity and length of the disease as well as the nature of the exposure. For example, a carpenter who has mesothelioma is likely to be awarded a higher amount of damages than someone who has only suffered from asbestosis.

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

Asbestos litigation can be complicated and expensive. We assist our clients to understand the risks involved in this type of litigation. We work with them to formulate internal programs designed to proactively identify potential liability and safety issues. Contact us to learn how we can help protect the interests of your company.