Asbestos Litigation Defense
Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The Firm's attorneys regularly participate in national conferences and are proficient in the many issues that arise in asbestos litigation, including jurisdictional Case Management Orders and expert selection.
Research has demonstrated that exposure to asbestos can lead to lung diseases and damage. This includes mesothelioma and lesser illnesses like asbestosis and pleural plaques.
Statute of Limitations
In most personal injury cases, a statute of limitations defines a time frame for the length of time that follows an accident or injury, the victim is able to start an action. For asbestos-related cases, the statute of limitations differs according to the state. They also differ from other personal injury lawsuits because asbestos-related diseases can take years to be apparent.
Due to the delayed nature of mesothelioma and other asbestos-related diseases the statute of limitation begins at the time of diagnosis (or death in cases of wrongful death) instead of the date of exposure. This discovery rule is that victims and their families must work as quickly as they can with an experienced New York asbestos lawyer.
There are a variety of aspects to consider when making an asbestos lawsuit. One of the most important is the statute of limitations. This is the date that the victim has to submit the lawsuit by, and failure to file the lawsuit will result in the case being barred. The statute of limitation varies from state to state and laws vary greatly. However, most allow between one and six year after the time that the victim was diagnosed.
In an asbestos case defendants typically make use of the statute of limitations as a defense against liability. They could argue for instance that plaintiffs should have been aware or were aware of their exposure to asbestos and that they had an obligation to notify their employer. This is a common argument in mesothelioma lawsuits and can be difficult to prove for the victim.
A defendant in a case involving asbestos could also argue that they didn't have the resources or means to inform people about the dangers of the product. This is a complex case and relies on the evidence available. In California for instance it was argued that the defendants lacked "state-ofthe-art" information and therefore could not to provide sufficient warnings.
In general, it is recommended to file the asbestos lawsuit within the state of the victim's home. However, there are situations in which it might make sense to file the lawsuit in another state. It usually has to do with the location of the employer, or the place where the worker was exposed to asbestos.
Bare Metal
The"bare-metal" defense is a method that equipment manufacturers employ in asbestos litigation. The bare metal defense argues that since their products left the plant as untreated steel, they didn't have a duty to warn about the dangers of asbestos-containing materials later added by other parties, for instance thermal insulating flange seals and flange seals. This defense is accepted in some jurisdictions but not everywhere.
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 established a new standard under which manufacturers have a responsibility to warn consumers if it is aware that its product is likely to be harmful for the purpose it was designed for and has no reason to believe that its final users will realize that risk.
While this change in law could make it more difficult for plaintiffs to bring claims against equipment manufacturers, it is not the end of the tale. For one reason, the DeVries decision does not apply to state-law claims that are founded on negligence or strict liability, and are not covered by federal maritime law statutes, like the Jones Act or the Maritime Claims Act.
Plaintiffs will continue to pursue an expanded interpretation of the bare-metal defense. For example in the asbestos MDL in Philadelphia the case has been remanded back to an Illinois federal court to determine whether the state of Illinois recognizes the defense. The plaintiff who died in that case was a carpenter, and was exposed to switchgear and turbines at the Texaco refinery that contained asbestos-containing components.
In a similar instance, a judge in Tennessee has indicated that he is likely to take a different view of the 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 from third parties including the Equipment Defendants. The judge in that case held that the bare-metal defense is applicable to cases similar to this. The Supreme Court's decision in DeVries will have an impact on how judges will apply the bare-metal defense in other cases for example, those involving state law tort claims.
Defendants' Experts
Asbestos litigation is a complex affair and requires lawyers with a extensive knowledge of law and medicine and access to experts of the highest caliber. The attorneys at EWH have years of experience helping clients in various asbestos litigation issues, including analyzing claims, preparing strategic budgets and litigation management strategies in hiring and retaining experts and defending defendants' and plaintiffs' expert testimony during deposition and at trial.
Typically asbestos cases require testimony of medical professionals, such as pathologists and radiologists who testify on X-rays or CT scans that reveal the lung tissue being damaged typical of asbestos exposure. A pulmonologist is also able to testify about symptoms such as difficulty breathing that are similar to those of mesothelioma and other asbestos-related illnesses. Experts can provide a detailed report of the plaintiff's job history, including an investigation of their tax and social security documents, union and job information.
It is possible to consult an engineer who is forensic or an environmental scientist to determine the source of exposure to asbestos. These experts can help the defendants argue that the asbestos exposure did not occur at the workplace, but was brought into the home through the clothing of workers or air outside.
Many attorneys representing plaintiffs hire economic loss experts to determine the monetary losses incurred by victims. These experts will be able to determine the amount of money a person has lost due to illness and the impact it had on his or her life. They can also testify to expenses such as medical bills and the cost of hiring someone else to complete household chores a person is unable to do.
It is crucial that defendants challenge plaintiffs' expert witnesses, particularly when they have testified to hundreds or dozens of asbestos claims. If they repeat their testimony, these experts may lose credibility among jurors.
In asbestos cases, defendants may also request summary judgment in cases where they can demonstrate that the evidence doesn't establish that the plaintiff suffered injury due to exposure to the products of the defendant. However the judge will not give summary judgment merely because the defendant cites gaps in the plaintiff's proof.
Going to Trial
Due to the latency issues involved in asbestos cases, it is difficult to make a significant discovery. The time between exposure and the appearance of the disease can be measured in decades. Therefore, determining the facts upon which to build a case requires a review of an individual's entire work history. This usually involves an exhaustive review of social security and tax records, union and financial records as well as interviews with co-workers and family members.
Asbestos sufferers are often diagnosed with less serious ailments like asbestosis prior to a mesothelioma diagnose. Because of this, a defendant's ability to show that the plaintiff's symptoms are caused by another disease than mesothelioma may have a significant importance in settlement negotiations.
In the past, certain lawyers employed this strategy to deny responsibility and get large awards. As the defense bar has evolved, courts have generally resisted this strategy. This is especially true in federal courts, where judges regularly dismiss such claims due to the absence of evidence.
As a result, a careful evaluation of each potential defendant is crucial to a successful asbestos defense. This includes assessing the duration and nature of the exposure, as well as the severity of any disease that is diagnosed. For example, a woodworker who is diagnosed with mesothelioma is more likely to suffer more damages than someone who only has asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation on behalf of manufacturers suppliers and distributors, contractors, employers, and property owners. Our attorneys have extensive experience in the role of National Trial and National Coordinating Counsel. They are frequently appointed by courts as liaison counsel to manage the prosecution of asbestos dockets.
Asbestos cases can be complex and costly. We assist our clients to recognize the risks involved in this defense asbestos litigation seminar type of litigation and we work with them to develop internal programs that are proactive and identify safety and liability concerns. Contact us today to find out more about how our company can safeguard your company's interests.