Asbestos Litigation Defense: The Good The Bad And The Ugly
Asbestos Litigation Defense
Cetrulo LLP has been widely acknowledged as a pioneer in asbestos attorneys litigation. The firm's lawyers regularly speak at national conferences and are knowledgeable in the myriad issues that arise when the defense of asbestos cases such as jurisdictional Case Management Orders and expert selection.
Research has shown that asbestos exposure can cause lung diseases and damage. This includes mesothelioma as well as lesser diseases such as asbestosis and pleural plaques.
Statute of Limitations
In most personal injury cases there is a statute that limits the time limit within the date a victim is able to file an action. In the case of asbestos lawsuits, the statute of limitations differs by state and differs from in other personal injury lawsuits because the symptoms of asbestos-related illnesses can take decades to show up.
Due to the delayed nature of mesothelioma and asbestos-related diseases, the statute of limitations clock starts at the date of diagnosis (or death, in the case of wrongful deaths) rather than at the date of exposure. This discovery rule is the reason why the families of victims should seek out as soon as they can with an experienced New York asbestos lawyer.
When you file a asbestos lawsuit - article source,, there are many factors that must be taken into account. The statute of limitations is among the most important. This is the deadline that the victim must submit the lawsuit by, and failure to do so will result in the case being closed. The statute of limitations is different from state to state and the laws differ widely. However, most allow between one and six years after the victim was diagnosed.
In asbestos cases, defendants often make use of the statute of limitations as a defense to liability. For example, they may argue that the plaintiffs were aware or should have known about their exposure, and therefore had a legal obligation to inform their employer. This is a common argument in mesothelioma lawsuits, and it can be difficult to prove for the victim.
A defendant in an asbestos case could be able to claim that they didn't have the resources or means to inform people about the dangers of the product. This is a complex argument that relies on the evidence that is available. For example it was successfully made in California that defendants didn't possess "state-of-the-art" knowledge and thus could not be expected to give adequate warnings.
Generally, it is best to file the asbestos lawsuit in the state of the victim's residence. However, there are certain circumstances where it may be beneficial to file the lawsuit in another state. This is usually to be related to where the employer is located or the place where the employee was first exposed to asbestos.
Bare Metal
The bare metal defense is a standard strategy used by equipment manufacturers in asbestos litigation. It asserts that because their products were manufactured as unfinished metal, they had no obligation to warn about the dangers of asbestos-containing materials that were added by other parties at a later time like thermal insulation and gaskets for flanges. This defense is accepted in a few states, but it's not a federally-approved option in all states.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the law. The Court has ruled against the manufacturers' preferred bright line rule and instead created an entirely new standard that states that a manufacturer has a duty to inform consumers if they know that its product is likely to be dangerous for its intended purposes and does not have any reason to believe that its final users will be aware of that risk.
This change in law will make it more difficult for plaintiffs to file claims against equipment manufacturers. However this isn't the end of the story. For one it is that the DeVries decision is not applicable to state-law claims founded on 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 pursue a wider interpretation of the bare metal defense. For example 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 plaintiff who died in this case was a carpenter who was exposed to switchgear, turbines and other asbestos-containing parts at the Texaco refinery.
In a similar case in Tennessee, an Tennessee judge has stated that he would adopt the third view of bare metal defense. In the 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 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 contexts.
Defendants' Experts
Asbestos litigation is complex and require experienced lawyers with a thorough knowledge of both legal and medical issues and access to top experts. EWH attorneys have decades of experience in asbestos lawyers litigation, including investigating claims, preparing strategies for managing litigation, including budgets, identifying and bringing in experts, and defending plaintiffs and defendants expert testimony at depositions and trials.
Typically, asbestos cases will require the testimony from medical professionals like a radiologist or pathologist. They can testify that X-rays and CT scans reveal the typical lung tissue scarring caused by asbestos exposure. A pulmonologist may also testify about symptoms such as breathing difficulties, which are similar to symptoms of mesothelioma or other asbestos-related diseases. Experts can provide a detailed account of the plaintiff's work history, including an investigation of their tax social security and union records as well as job and employment details.
It is possible to consult a forensic engineer or an environmental scientist to determine the cause of asbestos exposure. These experts can help defense attorneys argue that the alleged asbestos was not exposed in the workplace and was instead brought home on workers' clothing or in the air outside (a common defense in mesothelioma cases).
Many of the plaintiffs lawyers will bring in economic loss experts to establish the monetary losses incurred by the victims. These experts can calculate the amount of money a victim lost as a result of their illness and its impact on their lifestyle. They can also testify on expenses such as the cost of medical bills as well as the cost of hiring someone to do household chores that the person cannot perform anymore.
It is important that defendants challenge the plaintiffs' expert witnesses, particularly when they have testified to hundreds or dozens of other asbestos claims. Experts can lose credibility with jurors if their testimony is repeated.
In asbestos cases, defendants can also apply for summary judgment when they show that the evidence doesn't establish that the plaintiff suffered injuries from exposure to the defendant's product. However, a judge will not grant summary judgment just because the defendant points to weaknesses in the plaintiff's evidence.
Trial
The latency issues involved in asbestos cases mean that getting an accurate diagnosis can be nearly impossible. The duration between exposure and illness can be measured by decades. To establish the facts on which to base a claim it is important to review an individual's work background. This involves a thorough review of the individual's social security, tax, union and financial documents, in addition to interviews with family members and co-workers.
Asbestos patients are more likely to develop less serious diseases like asbestosis prior to diagnosis of mesothelioma. Because of this, a defendant's ability to show that the plaintiff's symptoms are caused by an illness other than mesothelioma can have significant value in settlement negotiations.
In the past, certain attorneys have used this strategy to deny liability and obtain large awards. As the defense bar grew, courts have generally resisted this strategy. This is especially true in federal courts, where judges routinely reject such claims due to the absence of evidence.
An in-depth analysis of each potential defendant is therefore essential for a successful defense in asbestos litigation. This involves evaluating the severity and length of the illness as well as the type of the exposure. For example a carpenter with mesothelioma will likely be awarded more damages than someone who has only suffered from asbestosis.
The Bowles Rice Asbestos Litigation Team regularly defends product manufacturers, suppliers contractors, distributors, property owners, and employers in asbestos-related litigation. Our attorneys have extensive experience as National Trial and National Coordinating Counsel. They are frequently appointed by courts as liaison counsel to oversee the prosecution of asbestos dockets.
Asbestos litigation can be complex and expensive. We assist our clients in understanding the potential risks associated with this type of litigation and work with them to formulate internal programs that will detect potential safety and liability concerns. Contact us to find out how we can protect the interests of your business.