Asbestos Litigation Defense
Cetrulo LLP has been widely recognized as a leader in asbestos litigation. The attorneys of the Firm are regularly invited to speak at national conferences. They are also knowledgeable in the myriad of issues that arise in defending asbestos cases.
Research has proved that asbestos exposure causes lung damage and disease. This includes mesothelioma as well as lesser diseases such as asbestosis and plaques in the pleural cavity.
Statute of Limitations
In the majority of personal injury cases, a statute of limitations establishes a time limit for how long after an injury or accident, the victim is allowed to start an action. For asbestos, the statute of limitations differs by state and is different from in other personal injury lawsuits because the signs of asbestos-related illnesses can take decades to manifest.
Due to the delaying nature of mesothelioma and asbestos-related diseases the statute of limitations clock begins at the date of diagnosis (or death in wrongful death cases) instead of the time of exposure. This discovery rule is the reason why victims and their families need to work as soon as they can with a reputable New York asbestos lawyer.
When filing an asbestos lawsuit, there are many factors that must be taken into account. The statute of limitations is among the most important. This is the deadline which the victim must submit the lawsuit by, and failure to file a lawsuit by the deadline could result in the case being barred. The time limit for filing a lawsuit varies by state, and the laws differ greatly however, most states allow between one and six years from the date the victim was diagnosed with an asbestos-related disease.
In an asbestos-related case, the defendants will often attempt to invoke the statute of limitations to defend against liability. They might argue, for example, 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 defense in mesothelioma lawsuits and can be difficult to prove for the victim.
A defendant in a case involving asbestos could also argue that they did not have the resources or the means to warn people about the dangers of the product. This is a complicated argument that relies on the evidence that is available. For instance, it has been successfully made in California that defendants didn't have "state-of-the-art" knowledge and could not be expected to provide adequate warnings.
In general, it's better to start an asbestos lawsuit in the state where the victim resides. However, there are certain circumstances where it may make sense to file the lawsuit in another state. This usually has to do with the place of the employer, or the location where the employee was exposed to asbestos.
Bare Metal
The bare metal defense is a common strategy employed by manufacturers of equipment in asbestos litigation. The bare metal defense asserts that, because their products left the plant as bare steel, they didn't have a responsibility to warn about the dangers of asbestos-containing materials later added by other parties, like thermal insulating and flange seals. This defense is accepted in some jurisdictions but not all.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the law. Warren asbestos attorney 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 dangerous for its intended use and has no reason to believe that its end 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 story. First, the DeVries decision does not apply to state-law claims based 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 pursuing an expanded interpretation of the bare-metal defense. In the Asbestos Multi District Litigation in Philadelphia, for example, a case was remanded back to an Illinois federal judge to determine if that state recognizes this defense. The plaintiff who died in the case worked as 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 indicated that he will adopt the third perspective of the defense of bare metal. In that case the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed as having mesothelioma. He was employed on equipment that was repaired or replaced by third party contractors, including Equipment Defendants. The judge in the case decided that the bare metal defense applies to cases similar to this. The Supreme Court's decision in DeVries will influence the way judges will apply the bare-metal defense in other situations, such as those involving state law tort claims.
Defendants' Experts
Asbestos lawsuits are complicated and require skilled attorneys with a thorough knowledge of both legal and medical issues, as well as access to expert witnesses of the highest caliber. EWH attorneys have decades of experience in asbestos litigation, such as investigating claims, creating strategies for managing litigation and budgets, as well as identifying and hiring experts, and defending plaintiffs and defendants in expert testimony at trials and depositions.
Most asbestos cases require the testimony of medical professionals such as a radiologist or pathologist. They can testify that X-rays and CT scans show the typical scarring of lung tissue caused by asbestos exposure. A pulmonologist could also testify on symptoms, like breathing problems, which are similar to mesothelioma and other asbestos-related diseases. Experts can provide a detailed description of the plaintiff's employment background, including an examination of his or her tax and social security documents, union and job information.
It is possible to consult a forensic engineer or an environmental scientist in order to determine the source of asbestos exposure. These experts can help defendants to argue that asbestos exposure was not at the workplace, but brought to the home through clothing worn by workers or by airborne particles.
A lot of plaintiffs' lawyers employ experts in economic loss to assess the financial losses suffered by the victims. These experts can calculate the amount of money a person has lost due to their illness and the impact it affected their life. They can also testify on expenses like the cost of medical bills and the cost of hiring someone to do household chores that one is unable to do anymore.
It is important for defendants to challenge experts of the plaintiff, particularly in cases where they've been called to testify in dozens or hundreds of other asbestos-related claims. Experts may lose credibility with jurors if their testimony is repeated.
In asbestos cases, defendants can also seek summary judgement in cases where they can demonstrate that the evidence does not prove that the plaintiff suffered injury due to exposure to the defendant's products. However a judge won't give summary judgment merely because the defendant points to gaps in the plaintiff's proof.
Going to Trial
Due to the latency issues involved in asbestos cases, it can be difficult to make an accurate discovery. The time between exposure and the development of the disease can be measured in decades. To establish the facts on which to build a claim it is essential to look over an individual's job background. This involves a thorough review of the individual's social security, tax and union records, as well as financial documents, in addition to interviews with family members and co-workers.
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 prove that a plaintiff's symptoms are caused by an illness other than mesothelioma may have a significant value in settlement negotiations.
In the past, certain attorneys have employed this strategy to avoid liability and receive large sums. As the defense bar grew and the courts have generally rejected this approach. This is especially true in federal courts, where judges regularly dismiss such claims due to the absence of evidence.
This is why a careful evaluation of every potential defendant is crucial to an effective asbestos defense. This involves evaluating both the severity and length of the disease as well as the nature of the exposure. For example, a carpenter who has mesothelioma is likely to be awarded higher damages than one who has only suffered from asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related lawsuits for manufacturers, suppliers and distributors contractors, employers and property owners. Our lawyers have been appointed as National Trial and National Coordination Counsel and are frequently appointed as liaison counsel by courts in order to manage asbestos dockets.
Asbestos litigation can be complex and costly. We assist our clients to understand the potential risks associated with this type of litigation and assist them in establishing internal programs designed to proactively detect potential safety and liability concerns. Contact us today to find out more about how our company can protect your company's interests.