Asbestos Litigation Defense

Cetrulo LLP has been widely recognized as a leader in asbestos litigation. The attorneys of the Firm are regularly invited to give presentations at national conferences. They are also knowledgeable on the many issues that arise in litigating asbestos cases.

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

Statute of limitations

In most personal injury cases there is a statute that limits the time period after which a victim may make a claim. In asbestos cases, the statute of limitations differs according to the state. They are also different from other personal injury claims since asbestos-related illnesses may take years to be apparent.

Due to the delay in the development of mesothelioma and other asbestos-related diseases the statute of limitations clock begins at the date of diagnosis (or death, in wrongful death cases) rather than at the time 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 a myriad of factors to consider when filing an asbestos lawsuit. The statute of limitations is among the most crucial. This is the date which the victim must make a claim by, and failing to file the lawsuit will cause the case to be barred. The statute of limitation is different from state to state and the laws differ widely. However, most allow between one and six year after the date of diagnosis.

In an asbestos case, defendants often use the statute of limitation as a defense against liability. They could argue, for example, that the plaintiffs should have known or had knowledge of their exposure to asbestos lawyers and were under the obligation of notifying their employer. This is a common argument in mesothelioma litigation and it can be difficult for the plaintiff to prove.

A defendant in a case involving asbestos could also argue that they didn't have the resources or the means to warn people about the dangers of the product. This is a difficult case that relies heavily on the evidence available. For instance it was successfully presented in California that defendants didn't possess "state-of-the-art" knowledge and could not be expected to give adequate warnings.

In general, it is best to start an asbestos lawsuit in the state where the victim resides. In certain situations it might be beneficial to file a lawsuit in a state other than the victim's. This is usually to relate to the location of the employer or the place where the employee was first exposed to asbestos.

Bare Metal

The"bare-metal" defense is a method used by equipment manufacturers in asbestos litigation. The bare-metal defense claims that since their products left the factory in bare steel, they did not have a duty to inform about the dangers of asbestos-containing materials later added by other parties, for instance thermal insulating seals and flanges. This defense has been embraced in certain states, but it's not available under federal law in all states.

The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries has altered that. The Court rejected the preferred rule of manufacturers' bright line rule and instead created an entirely new standard that states that manufacturers are required to inform consumers if they know that its product is likely to be dangerous for the purpose it was designed for and does not have any reason to believe that its end users will be aware of that risk.

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

Plaintiffs will continue pursuing a broader interpretation of the defense of bare metal. For instance in the Asbestos MDL in Philadelphia, a case was remanded to an Illinois federal court to decide whether the state of Illinois recognizes the defense. The deceased plaintiff in that claim was a carpenter, and was exposed to switchgear and turbines in an Texaco refinery which contained asbestos-containing components.

In the same case in Tennessee, an Tennessee judge has stated that he would adopt the third view of bare metal defense. The plaintiff in the case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma following working on equipment that was repaired or replaced by contractors of third party, including the Equipment Defendants. The judge in the case decided that bare metal defenses apply to cases similar to this. The Supreme Court's DeVries decision will influence how judges use the bare-metal defense in other contexts.

Defendants' Experts

Asbestos litigation is complex and requires lawyers with a vast knowledge of both law and medicine, as well as accessing experts of the highest caliber. EWH attorneys have decades of experience in asbestos lawyer litigation, including investigating claims, preparing litigation management plans and strategic budgets, as well as identifying and hiring experts and defending plaintiffs as well as defendants with expert testimony in depositions and trials.

Typically, asbestos cases require the testimony of medical professionals, such as a radiologist and pathologist who can testify about X-rays or CT scans that reveal the lung tissue being damaged typical of asbestos exposure. A pulmonologist may also testify on symptoms, such as difficulty in breathing, that are similar to mesothelioma as well as other asbestos-related diseases. Experts can provide an in-depth report of the plaintiff's job background, which includes an analysis of their tax and social security, union and job records.

A forensic engineering or environmental science expert could be required to explain the cause 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 workers' clothing or from the outside air (a common defense in mesothelioma cases).

Many plaintiffs' attorneys will employ experts in economic loss to assess the financial losses incurred by victims. They will be able to calculate the amount of money that a victim has lost due to their illness and the impact it had on their daily life. They can also testify on costs like medical bills and the cost of hiring someone to perform household chores a person cannot perform.

It is essential for defendants to challenge the plaintiff's expert witnesses, especially when they have been called to testify in dozens or hundreds of other asbestos-related claims. Experts may lose credibility before jurors when their testimony is repeated.

In asbestos cases, defendants may also seek summary judgement when they can prove that the evidence does not prove that the plaintiff suffered injury due to exposure to the defendant's products. However, a judge will not give summary judgment merely because the defendant cites weaknesses in the plaintiff's evidence.

Trial

The delays involved in asbestos cases mean that getting an accurate diagnosis can be nearly impossible. The lag between exposure and the appearance of the disease could be measured in years. As such, establishing the facts that will make a case requires a thorough review of a person's entire employment history. This involves a thorough review of the individual's social security, tax and union financial records, as well as interviews with family members and co-workers.

Asbestos patients are more likely to develop less serious illnesses such as asbestosis prior to a mesothelioma diagnose. Because of this, the ability of a defendant to show that the plaintiff's symptoms are caused by another disease than mesothelioma may have a significant value in settlement negotiations.

In the past, some lawyers have employed this tactic to deny liability and obtain large awards. As the defense bar evolved, courts have generally resisted this approach. This is particularly true for federal courts, where judges regularly reject such claims due to lack of evidence.

A thorough evaluation of each potential defendant is crucial to be able to defend effectively in asbestos lawyers litigation. This involves evaluating the severity and length of the illness as well as the type of the exposure. For instance, a woodworker who is diagnosed with mesothelioma is more likely to receive higher damages than a person who only has asbestosis.

The Bowles Rice Asbestos Litigation Team regularly defends suppliers, manufacturers, distributors, contractors and property owners as well as employers in asbestos related litigation. Our lawyers have extensive experience as National Trial and National Coordinating Counsel, and are regularly appointed by the courts as liaison counsel to oversee the prosecution of asbestos dockets.

Asbestos cases can be complicated and costly. We help our clients recognize the risks involved in this type of litigation, and we assist them to create internal programs that are proactive and identify safety and liability concerns. Contact us today to find out more about how our firm can safeguard your company's interests.