It s The Ugly Real Truth Of Asbestos Litigation Defense

Asbestos Litigation Defense

Cetrulo LLP has been widely recognized as a leader in asbestos litigation. The attorneys of the Firm regularly participate in national conferences and are knowledgeable in the myriad issues that arise in asbestos litigation such as jurisdictional Case Management Orders and expert selection.

Research has shown that asbestos exposure causes lung damage and diseases. This includes mesothelioma, and lesser diseases such as asbestosis and pleural plaques.

Statute of Limitations

In the majority of personal injury cases, a statute of limitations establishes a time limit for the length of time that follows an accident or injury, the victim is allowed to start a lawsuit. In asbestos cases, statutes of limitations vary by state. They are also different from other personal injury claims as asbestos-related illnesses can take years to manifest.

Due to the delay in the development of mesothelioma as well as other asbestos attorney-related illnesses, the statute of limitation begins on the date of diagnosis or death in wrongful death cases instead of the date of exposure. This discovery rule is why victims and their families need to work as soon as they can with an experienced New York asbestos lawyer.

When making an asbestos lawsuit, there are many factors that must be taken into account. The statute of limitations is among the most crucial. This is the time limit that the victim has to submit the lawsuit by, and failing to file a lawsuit by the deadline could result in the case being closed. The statute of limitations differs according to state, and the laws differ widely in some states, but the majority allow between one and six years from when the victim was diagnosed with an asbestos-related disease.

In asbestos cases, defendants often employ the statute of limitations as a defense against liability. They may say, for example, that plaintiffs should have been aware or were aware of their exposure to asbestos and that they had the obligation of notifying their employer. This is a common argument in mesothelioma cases and can be difficult for the victim to prove.

Another potential defense in a case involving asbestos is that the defendants didn't have the resources or the means to inform the public about the dangers of the product. This is a complex argument and largely depends on the evidence available. For instance, it has been successfully presented in California that the defendants did not possess "state-of-the-art" expertise and therefore could not be expected to provide adequate warnings.

In general, it is recommended to file the asbestos lawsuit (additional reading) in the state where the victim's residence. However, there are circumstances in which it might be beneficial to file the lawsuit in a different state. It usually has to do with be related to where the employer is located or the place where the employee was first exposed to asbestos.

Bare Metal

The defense of bare metal is a tactic that equipment manufacturers use in asbestos litigation. It states that since their products were manufactured as unfinished metal, they had no obligation to warn of the dangers of asbestos-containing materials that were added by other parties at a later date like thermal insulation and flange gaskets. This defense has been accepted in some areas, but it is not available under federal law in all states.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the law. The Court rejected the preferred rule of manufacturers' bright line rule and instead, a new standard under which manufacturers are required to warn consumers if it is aware that its integrated product will be hazardous for its intended use and has no reason to believe that the end users will be aware of that risk.

This change in law makes it more difficult plaintiffs to bring claims against equipment manufacturers. However it's not the end. First it is that the DeVries decision does not apply to state-law claims founded on negligence or strict liability and are not brought under the federal maritime law statutes, including the Jones Act or the Maritime Claims Act.

Plaintiffs will continue to seek a more expansive understanding of the bare-metal defense. For instance, in the Asbestos MDL in Philadelphia, a case was remanded to an Illinois federal court to determine whether that state recognizes the defense. The deceased plaintiff in this claim was carpenter who was exposed to switchgear, turbines, and other asbestos-containing components at a Texaco refinery.

In a similar case in Tennessee, an Tennessee judge has indicated that he is likely to take the third approach to the defense of bare metal. In that case, the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed as having mesothelioma. He worked on equipment that was repaired or replaced by third-party contractors, which included Equipment Defendants. The judge in the case decided that bare-metal defenses can be applied to cases similar to this. The Supreme Court's DeVries decision will affect the way judges apply the bare-metal defense in other situations.

Defendants' Experts

Asbestos lawsuits are complicated and require skilled lawyers with a thorough understanding of medical and legal issues and access to expert witnesses of the highest caliber. Attorneys at EWH have years of experience in assisting clients with various asbestos litigation matters including investigating claims, preparing strategic budgets and litigation management strategies in identifying and retaining experts, and defense of defendants and plaintiffs' expert testimony during depositions and in court.

In most cases, asbestos cases require the testimony from medical professionals like a radioologist or pathologist. They can testify that X-rays and CT scans show the typical lung tissue scarring that is caused by asbestos exposure. A pulmonologist may also provide evidence of symptoms, such as difficulty breathing, which are similar to symptoms of mesothelioma and other asbestos-related illnesses. Experts can provide a detailed report of the plaintiff's job background, including an investigation of their tax, social security documents, union and job information.

It may be necessary to consult an engineer from the forensic field or an environmental scientist in order to determine the source of asbestos exposure. These experts can help the defendants argue that the asbestos exposure did not occur at the workplace, but was brought to the home through clothing worn by workers or by airborne particles.

Many attorneys representing plaintiffs hire economic loss experts to assess the financial loss suffered by victims. These experts can calculate the amount of money a person has lost due to their illness and the effect it has had on their life. They can also testify on expenses like medical bills and the cost of hiring someone to do household chores a person is no longer able to do.

It is important that plaintiffs challenge defendants' expert witnesses, particularly when they have testified to hundreds or dozens of other asbestos claims. Experts can lose credibility with jurors when their testimony is repeated.

Plaintiffs in asbestos cases may also request summary judgment if they can prove that the evidence does not establish that the plaintiff was injured caused by their exposure to the defendant's product. However, a judge will not accept summary judgment simply because the defendant cites weaknesses in the plaintiff's evidence.

Trial

Due to the latency issues in asbestos cases, it can be difficult to make an accurate discovery. The duration between exposure and illness can be measured by decades. To determine the facts upon which to build an argument it is important to examine an individual's employment history. This involves a thorough review of the individual's social security, tax and union records, as well as financial documents, as well as interviews with family members and co-workers.

Asbestos patients often develop less serious ailments like asbestosis prior to the 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 importance in settlement negotiations.

In the past, a few attorneys have employed this strategy to deny liability and obtain large amounts of money. However as the defense bar has grown and diversified, this strategy has been generally rejected by the courts. This is especially evident in federal courts, where judges have routinely dismissed such claims based on the lack of evidence.

Because of this, an accurate assessment of each potential defendant is crucial to a successful asbestos litigation defense. This includes assessing both the severity and length of the disease as well as the nature of the exposure. For example carpenters with mesothelioma will likely be awarded higher damages than someone who has only had asbestosis.

The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation on behalf of manufacturers distributors and suppliers, contractors, employers, and property owners. Our attorneys have been appointed as National Trial and National Coordination Counsel and are frequently appointed as liaison counsel by courts to manage asbestos dockets.

Asbestos litigation can be a bit complicated and costly. We help our clients understand the potential risks associated with this type of litigation and collaborate with them to develop internal programs to identify potential liability and safety concerns. Contact us to learn how we can protect the interests of your business.