Asbestos Litigation Defense
Cetrulo LLP is widely recognized as a leader in asbestos litigation defense. The Firm's attorneys are regularly invited to speak at national conferences. They are also knowledgeable on the many issues that arise in litigating asbestos cases.
Research has proven that asbestos exposure can cause lung disease and damage. This includes mesothelioma and less serious diseases like asbestosis and pleural plaques.
Statute of Limitations
In most personal injury cases statutes limit the time frame within the date a victim is able to file a claim. In asbestos cases, statutes of limitations vary 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 mesothelioma, and other asbestos-related diseases and other asbestos-related illnesses, 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 the victims and their families should consult an experienced New York mesothelioma lawyer as early as is possible.
There are a variety of factors to consider when filing an asbestos lawsuit. One of the most important is the statute of limitations. This is the deadline that the victim has to make a claim by, and failing to file a lawsuit by the deadline will result in the case being dismissed. The time limit for filing a lawsuit is different from state to state and laws vary greatly. However, the majority allow between one and six year after the time that the victim was diagnosed.
In an asbestos-related case in which the defendants are involved, they will typically try to use the statute of limitations as a defense against liability. For instance, they might argue that the plaintiffs were aware or should have been aware of their exposure, and therefore had a duty to notify their employer. This is a common argument in mesothelioma lawsuits, and can be difficult to prove for the victim.
Another possible defense in a asbestos case is that the defendants didn't have the resources or the means to warn of the dangers associated with the product. This is a complex case that relies heavily on the evidence available. For example it was successfully made in California that defendants did not have "state-of-the-art" knowledge and could not be expected to give adequate warnings.
Generally speaking, it is preferential to file the asbestos lawsuit within the state where the victim's residence. However, there are certain circumstances in which it might be appropriate to file the lawsuit in a different state. It usually has to do with 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 typical strategy used by manufacturers of equipment in asbestos litigation. The bare metal defense argues that since their products left the plant as bare steel, they didn't have a responsibility 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 available under federal law in all states.
The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries changed the law. The Court did not accept the bright-line rule of manufacturers and instead formulated the standard that requires the manufacturer to notify customers when they are aware that their integrated product is dangerous for its intended purpose and have no reason to believe that the users who purchase the product will realize this danger.
Although this change in law may make it harder for plaintiffs to prevail in 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 made on the basis of negligence or strict liability and are not covered by federal maritime law statutes, including the Jones Act or the Maritime Claims Act.
Plaintiffs will continue to pursue an expanded interpretation of the defense of bare-metal. In the Asbestos Multi District Litigation in Philadelphia for instance the case was remanded back to an Illinois federal judge to determine whether that state recognizes this defense. The plaintiff who died in the case was a carpenter, and was exposed to switchgear and turbines at a Texaco refinery that contained asbestos-containing components.
In a similar case, a judge in Tennessee has indicated that he is likely to adopt a third 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 had been repaired or replaced by contractors of third party which included the Equipment Defendants. The judge in the case ruled that bare metal defenses are applicable to cases similar to this. The Supreme Court's DeVries decision will impact how judges apply the bare-metal defense in other cases.
Defendants' Experts
Asbestos lawsuits are complex and require skilled attorneys with a deep knowledge of both legal and medical issues as well as access to top expert witnesses. EWH attorneys have decades of experience in asbestos litigation, including investigating claims, developing strategies for managing litigation and budgets, identifying and hiring experts and defending plaintiffs as well as defendants with expert testimony in depositions and trials.
Typically asbestos cases require testimony of medical professionals, such as a radiologist and pathologist who testify on X-rays or CT scans that reveal scarring of the lung tissue that is typical of asbestos exposure. A pulmonologist may also testify about symptoms such as difficulty breathing and coughing, which are similar to those of mesothelioma and other asbestos-related illnesses. Experts can also provide detailed history of work performed by the plaintiff, which includes a review of job, union, tax, and social security documents.
It may be necessary to consult an engineer who is forensic or an environmental scientist in order to determine the cause of exposure to asbestos. These experts can help defendants argue that the alleged asbestos was not exposed at the workplace and was instead brought home through clothing worn by workers or from the outside air (a common defense in mesothelioma cases).
Many attorneys representing plaintiffs hire economic loss experts to determine the monetary losses suffered by the victims. They can estimate the amount of money a person has lost due to their illness and its effect on their daily life. They can also testify about expenses like medical bills and the cost of hiring someone to perform household chores a person is no longer able to do.
It is essential that defendants challenge the plaintiffs experts, particularly if they have testified on hundreds or even hundreds of asbestos claims. If they repeat their testimony, the experts may lose credibility with jurors.
In asbestos cases, defendants can also seek summary judgment if they can show that the evidence doesn't prove that the plaintiff was injured by exposure to the defendant's products. A judge is not likely to issue a summary judgment merely because a defendant identifies gaps in the plaintiff’s proof.
Trial
Due to the latency issues in asbestos cases, it is difficult to make a meaningful discovery. The lag between exposure and the development of the disease could be measured in years. Thus, establishing the facts on which to create a case, will require a thorough examination of the entire work history. This includes a thorough analysis of the individual's social security, tax, union and financial documents, in addition to interviews with family members and co-workers.
Asbestos-related victims are often diagnosed with less serious diseases such as asbestosis prior to a mesothelioma diagnosis. Because of this, a defendant's ability to show that the plaintiff's symptoms are caused by a disease other than mesothelioma could be of significant significance in settlement negotiations.
In the past, certain lawyers employed this strategy to avoid responsibility and receive large awards. However as the defense bar has developed the strategy has been largely rejected by the courts. This has been particularly relevant in federal courts, where judges have frequently dismissed claims based on the lack of evidence.
An in-depth analysis of each potential defendant is crucial to be able to defend effectively in asbestos litigation. This includes assessing the length and the nature of the exposure, as well as the degree of any diagnosed illness. For instance, a worker who is diagnosed with mesothelioma is more likely to suffer more damages than a person who only has asbestosis.
The Bowles Rice Asbestos Litigation Team regularly defends product manufacturers, suppliers contractors, distributors as well as property owners and employers in asbestos-related litigation. Our lawyers have extensive experience in the role of National Trial and National Coordinating Counsel, and are frequently appointed by courts as national asbestos litigation conference liaison counsel to handle the prosecution of asbestos dockets.
Asbestos litigation can be complicated and expensive. We assist our clients to understand the risks involved in this type of litigation. We work with them to formulate internal programs designed to proactively identify potential liability and safety issues. Contact us to find out how we can safeguard the interests of your company.