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Asbestos Litigation Defense

Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The attorneys of the Firm regularly speak at national conferences and are well-versed in the myriad issues that arise when defending asbestos cases such as jurisdictional Case Management Orders and expert selection.

Research has demonstrated that asbestos exposure can cause lung diseases and damage. This includes mesothelioma as well as lesser diseases such as asbestosis and plaques in the pleural cavity.

Statute of Limitations

In most personal injury cases, a statute limits the time limit within which a victim can file an action. In asbestos cases, statute of limitations differs according to the 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 and other asbestos-related diseases the statute of limitations clock starts on the date of diagnosis, or death in wrongful death cases, rather than the date exposure. This discovery rule is that victims and their families need to work as soon as they can with an experienced New York asbestos lawyer.

There are many factors to consider when filing an asbestos lawsuit. One of the most important is the statute of limitations. This is the date that the victim must make a claim by, and failure to file a lawsuit by the deadline will result in the case being barred. The statute of limitation varies from state to state and the laws vary greatly. However, the majority allow between one and six year after the victim was diagnosed.

In an asbestos-related case in which the defendants are involved, they will typically attempt to use the statute of limitations as a defense against liability. For example, they may claim that the plaintiffs knew or should have been aware of their exposure and thus were required to inform their employer. This is a common argument in mesothelioma lawsuits and is difficult to prove for the victim.

Another potential defense in an asbestos case is that the defendants did not have the resources or the means to warn people of the dangers of the product. This is a complex argument that relies on the evidence that is available. For example it was successfully argued in California that defendants didn't possess "state-of-the-art" knowledge and could not be expected to provide adequate warnings.

In general, it's best to file an asbestos lawsuit in the state where the victim lives. In certain circumstances, it may make sense to bring a lawsuit in a different state from the victim's. This usually has to do with the location of the employer or the place where the worker was exposed to asbestos.

Bare Metal

The defense of bare metal is a tactic used by equipment manufacturers in asbestos litigation. The bare metal defense asserts that since their products left the factory in bare steel, they didn't have a duty to warn about the dangers posed by asbestos containing materials added later by other parties, like thermal insulating flange seals and flange seals. This defense is accepted in a few jurisdictions, but it is not permitted under federal law in all states.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed that. The Court has ruled against the manufacturers' preferred bright line rule and instead created the new standard under which manufacturers have a responsibility to warn consumers if it is aware that its integrated product will be harmful for its intended use and has no reason to believe that its end customers will be aware of the risk.

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

Plaintiffs will continue to pursue a broader interpretation of the bare-metal defense. In the Asbestos Multi-District Litigation of 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 instance was a carpenter who was exposed to switchgear, turbines and other asbestos-containing components at a Texaco refinery.

In a similar case in Tennessee, a Tennessee judge has indicated that he will 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 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 impact how judges use the bare-metal defense in other situations.

Defendants' Experts

Asbestos lawsuits are complex and require experienced lawyers with a deep knowledge of legal and medical issues, as well as access to expert witnesses of the highest caliber. Attorneys at EWH have years of experience helping clients in various asbestos litigation cases, such as investigating claims, preparing strategic budgets and litigation management strategies, identifying and retaining experts, and defense of defendants and plaintiffs' expert testimony during deposition and at trial.

Typically asbestos cases require the testimony of medical professionals such as pathologists and radiologists who can testify regarding X-rays or CT scans that show scarring of the lung tissue typical of asbestos exposure. A pulmonologist could be able to testify about symptoms, like difficulty in breathing, that are similar to mesothelioma as well as other asbestos-related illnesses. Experts can also provide a detailed history of work performed by the plaintiff, including an examination of the worker's union tax, social security documents.

It could be necessary to consult an engineer from the forensic field or an environmental scientist to determine the cause of asbestos exposure. These experts can aid the defendants argue that the asbestos exposure did not occur at the workplace, but brought into the home through the clothing of workers or by airborne particles.

Many of the plaintiffs lawyers will call in economic loss experts to establish the monetary losses incurred by the victims. They can determine how much money a victim has lost due to their illness and the impact it had on his or her life. They can also testify on expenses like medical bills and the cost of hiring someone else to complete household chores a person is no longer able to complete.

It is important that defendants challenge plaintiffs experts, particularly when they have testified to dozens or hundreds of asbestos claims. These experts can lose credibility before jurors if their testimony is repeated.

Defendants in asbestos cases can also request summary judgment when they demonstrate that the evidence does not show that the plaintiff suffered any injuries from exposure to the defendant's product. A judge is not likely to give summary judgment just because a defendant identifies gaps in the plaintiff’s proof.

Trial

Due to the latency issues in asbestos attorney cases, it is difficult to make an accurate discovery. The duration between exposure and illness can be measured in years. Therefore, determining the facts upon which to create a case, requires a review of a person's entire employment history. This usually involves an exhaustive analysis of social security, union, tax and financial records as along with interviews with coworkers and family members.

Asbestos-related victims are often diagnosed with less serious illnesses like asbestosis before being diagnosed with mesothelioma. Because of this, a defendant's ability to show that the plaintiff's symptoms stem from a disease other than mesothelioma can have significant value in settlement negotiations.

In the past, certain lawyers employed this strategy to deny responsibility and obtain large amounts of money. However, as the defense bar has grown, this approach has been generally rejected by the courts. This is particularly evident in federal courts where judges have often dismissed claims due to the absence of evidence.

A thorough evaluation of each potential defendant is therefore essential to ensure a successful defense in asbestos attorneys litigation. This involves evaluating the severity and length of the disease as well as the nature of the exposure. For instance, a woodworker who is diagnosed with mesothelioma is more likely to suffer greater damage than someone who has asbestosis.

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

asbestos attorney litigation can be complex and costly. We help our clients understand the risks involved in this type of litigation and we assist them to create internal programs that will proactively identify liability and safety concerns. Contact us today to learn more about how we can safeguard your company's interests.