Asbestos Litigation Defense
Cetrulo LLP has been widely recognized as a leader in asbestos litigation. The Firm's attorneys regularly participate in national conferences and are well-versed in the many issues that arise in asbestos litigation such as jurisdictional Case Management Orders and expert selection.
Research has proven that exposure to asbestos can cause lung disease and damage. This includes mesothelioma, and lesser diseases such as asbestosis and plaques in the pleural cavity.
Statute of limitations
In the majority of personal injury claims, a statute limits the time limit within which a victim may file an action. In asbestos cases, statute of limitations differs by state. They also differ from other personal injury claims since asbestos-related illnesses may take a long time to manifest.
Due to the delayed nature mesothelioma and other asbestos-related diseases the statute of limitations begins on the date of diagnosis, or death in the case of wrongful death, rather than the date exposure. This discovery rule is the reason why the families of victims must work as quickly as they can with an experienced New York asbestos lawyer.
There are many aspects to consider when making an asbestos lawsuit. The statute of limitations is among the most important. This is the time limit that the victim has to file the lawsuit by, and failure to do so could result in the case being barred. The time limit for filing a lawsuit differs from state to state and the laws differ greatly. However, most allow between one and six years after the victim was diagnosed.
In an asbestos-related case when the defendants often attempt to invoke the statute of limitations to defend against liability. For example, they may argue 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 cases, and it can be difficult for the victim to prove.
A defendant in a case involving asbestos could also claim that they didn't have the resources or the means to warn about the dangers of the product. This is a complex case that relies heavily on the available evidence. In California for instance it was argued that the defendants lacked "state-ofthe-art" information and were not able to to provide sufficient warnings.
Generally, it is best to start the asbestos lawsuit in the state of the victim's home. However, there are certain situations in which it might make sense to file the lawsuit in an alternative state. This is usually to be related to where the employer is located or where the person was first exposed to asbestos.
Bare Metal
The"bare metal" defense is a standard strategy used by manufacturers of equipment in asbestos litigation. Orange asbestos attorney states that since their products left the factory as raw metal, they were under no obligation to warn consumers of the risks of asbestos-containing substances added by other parties later for example, thermal insulation and flange gaskets. This defense has been embraced in certain jurisdictions, but it is not available under federal law in all states.
The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries has changed the law. The Court did not accept the bright-line rule of manufacturers and instead created an obligation for a manufacturer to warn if they know that their integrated product is dangerous for its intended use and there is no reason to believe that users will be aware of this risk.
Although this change in law could make it harder for plaintiffs to win claims against manufacturers of equipment, it's not the end of the story. For one, 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 a broader interpretation of the defense of bare-metal. For instance in the Asbestos MDL in Philadelphia the case has been remanded back to an Illinois federal court to determine whether that state recognizes the defense. The plaintiff who died in that case was a carpenter, and was exposed to switchgear and turbines at a Texaco refinery that contained asbestos-containing parts.
In a similar case in Tennessee, a Tennessee judge has indicated that he will adopt the third perspective of the defense of bare metal. The plaintiff in that case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma while working on equipment that had been repaired or replaced by contractors from third parties including the Equipment Defendants. The judge in the case decided that bare-metal defenses can be applied to cases like this. The Supreme Court's DeVries decision will impact how judges apply the bare-metal defense in other situations.
Defendants' Experts
Asbestos litigation is complex and requires lawyers with a deep medical and legal knowledge as well as access to top experts. The attorneys at EWH have years of experience helping clients in various asbestos litigation cases, such as investigating claims, preparing strategic budgets and litigation management plans as well as finding and retaining experts, and defending plaintiffs' and defendants expert testimony during deposition and during trial.
Typically asbestos cases require the testimony of medical professionals, such as a radiologist and pathologist who can testify about X-rays or CT scans that reveal scarring of lung tissue that is typical of asbestos exposure. A pulmonologist may also provide evidence of symptoms, such as difficulty breathing, which are similar to those experienced by mesothelioma, as well as other asbestos-related diseases. Experts can also provide a full details of the work performed by the plaintiff, such as an examination of the worker's union tax, social security records.
It could be necessary to consult a forensic engineer or an environmental scientist in order to determine the source of exposure to asbestos. Experts in these fields can assist plaintiffs argue that the asbestos was not exposed in the workplace and instead was brought home on workers' clothing or from the air outside (a common defense in mesothelioma cases).
Many plaintiffs lawyers will call in economic loss experts to determine the financial loss suffered by the victims. These experts can calculate how much money a victim has lost due to their disease and the impact it has had on their life. They can also testify on expenses like the cost of medical bills as well as the cost of hiring someone to do household chores that one can no longer perform.
It is crucial that plaintiffs challenge defendants' expert witnesses, particularly when they have testified to hundreds or even hundreds of asbestos claims. If they repeat their testimony, these experts may lose credibility among jurors.
Plaintiffs in asbestos cases may also apply for summary judgment if they can show that the evidence does not show that the plaintiff suffered injuries due to their exposure to the defendant's product. However the judge will not accept summary judgment simply because the defendant cites holes in the plaintiff's proof.
Going to Trial
Due to the latency issues that are prevalent in asbestos cases, it is difficult to make a significant discovery. The time between exposure and disease can be measured by decades. As such, establishing the facts that will build a case will require a thorough examination of an individual's entire work history. This often involves a thorough review of social security as well as tax, union, and financial records as along with interviews with coworkers and family members.
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 due to an illness other than mesothelioma may have a significant importance in settlement negotiations.
In the past, some attorneys have used this strategy to avoid liability and receive large awards. As the defense bar has evolved, courts have largely rejected this approach. This is especially true in federal courts, where judges regularly reject such claims due to lack of evidence.
As a result, an in-depth analysis of every potential defendant is crucial to an effective asbestos defense. This includes assessing the duration and extent of exposure as well as the severity of any disease that is diagnosed. For instance, a worker who has mesothelioma will likely to suffer greater damage than someone who 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 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 a bit complicated and expensive. 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 safety and liability concerns. Contact us today to learn more about how our firm can protect your company's interests.