The 10 Scariest Things About Asbestos Litigation Defense

Asbestos Litigation Defense

Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The attorneys of the Firm regularly participate in national conferences and are proficient in the myriad issues that arise when the defense of asbestos cases, including jurisdictional Case Management Orders and expert selection.

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

Statute of Limitations

In most personal injury claims, a statute limits the time period after the date a victim is able to make an action. For asbestos-related cases, the statutes of limitations vary by state. They also differ from other personal injury claims because asbestos-related diseases 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 at the date of diagnosis (or death in cases of wrongful death) instead of the time of exposure. This discovery rule is that victims and their families should seek out as soon as they can with an experienced New York asbestos lawyer.

There are many aspects to take into consideration when filing an asbestos lawsuit. The statute of limitations is one of the most crucial. This is the time limit that the victim has to make a claim by, and failing to file the lawsuit could result in the case being dismissed. The statute of limitations differs in each state, and laws differ widely, but most allow for between one and six years from when the victim was diagnosed with an asbestos-related disease.

In asbestos cases defendants frequently use the statute of limitation as a defense to liability. They might argue that, for instance, plaintiffs should have been aware or were aware of their exposure to asbestos and were under a duty of notification to their employer. This is an argument that is common in mesothelioma lawsuits, and it isn't easy for the victim to prove.

Another possible defense in a case involving asbestos is that the defendants didn't have the resources or means to warn people of the dangers posed by the product. This is a complicated case that relies heavily on the available evidence. For instance, it has been successfully presented in California that the defendants did not possess "state-of-the-art" expertise and therefore could not be expected to give adequate warnings.

Generally speaking, it is preferential to file the asbestos lawsuit within the state of the victim's home. In some cases it may be appropriate to make a claim in a state other than the victim's. It usually has to do with be related to where the employer is located or the place where the employee was first exposed to asbestos.

Bare Metal

The defense of bare metal is a typical strategy used by manufacturers of equipment in asbestos lawyer litigation. The bare metal defense asserts that because their products left the plant as untreated steel, they did not have a responsibility to warn about the dangers posed by asbestos-containing materials later added by other parties, for instance thermal insulating flange seals and flange seals. This defense is accepted in a few states, but it's not available under federal law in all states.

The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries has reshaped the law. The Court rejected the bright-line rule that manufacturers prefer and instead formulated the standard that requires manufacturers to inform consumers if they know that their integrated product is hazardous for its intended purpose and there is no reason to believe that the end users will be aware of this danger.

This change in law will make it more difficult for plaintiffs to file claims against manufacturers of equipment. However this isn't the end of the road. First it is that the DeVries decision is not applicable 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 to pursue a broader interpretation of the defense of bare-metal. In the Asbestos Multi-District Litigation of Philadelphia for instance the case was remanded to an Illinois federal judge to determine if the state recognizes this defense. The plaintiff who died in this instance was a carpenter who was exposed to switchgear, turbines, and other asbestos lawyers-containing equipment at the Texaco refinery.

In a similar case, a judge in Tennessee has stated that he'll take a different view 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 had worked on equipment that was repaired or replaced by third party contractors, which included Equipment Defendants. The judge in the case decided that bare metal defenses apply to cases like this. The Supreme Court's decision in DeVries will influence the way judges apply the bare metal defense in other cases for example, those involving state law tort claims.

Defendants' Experts

Asbestos litigation is complex and require experienced lawyers who have a thorough 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, creating litigation management plans and strategic budgets, identifying and hiring experts, and defending plaintiffs and defendants with expert testimony in trials and depositions.

In most cases, asbestos cases require the testimony from medical professionals such as a radiologist or pathologist. They will testify that X-rays and CT scans reveal the typical scarring of lung tissue caused by asbestos exposure. A pulmonologist may also be a witness to symptoms like difficulty breathing, which are similar to symptoms of mesothelioma and other asbestos-related illnesses. Experts can also provide full details of the work performed by the plaintiff, including a review of employment, union and tax records as well as social security documents.

A forensic engineer or environmental science expert may be necessary to explain the source of the asbestos exposure. These experts can help plaintiffs argue that the asbestos was not exposed at work and instead was ingested through clothing worn by workers or from the outside air (a common defense in mesothelioma cases).

Many plaintiffs' attorneys will employ economic loss experts to determine the monetary losses suffered by the victims. They can estimate the amount of money that a victim suffered due to their illness and its impact on their lifestyle. They can also testify about expenses like the cost of medical bills and the price of hiring someone to perform household chores that one can no longer perform.

It is essential for defendants to challenge the experts of the plaintiff, particularly in cases where they've given evidence in dozens, or hundreds of asbestos-related claims. If they repeat their testimony, the experts may lose credibility with jurors.

In asbestos cases, defendants can also seek summary judgement if they can show that the evidence does not establish that the plaintiff was injured by exposure to the defendant's products. A judge is not likely to grant summary judgement just because a defendant has pointed out gaps in the plaintiff’s proof.

Trial

The delays involved in asbestos cases mean that getting significant information can be almost impossible. The time between exposure and disease can be measured by decades. To determine the facts on which to build a claim it is essential to review an individual's work history. This includes a thorough analysis of the individual's tax, social security and union records, as well as financial records, as well as interviews with family members and co-workers.

Asbestos-related victims are often diagnosed with less serious diseases like asbestosis prior to a mesothelioma diagnosis. Due to this the ability of a defendant to prove that a plaintiff's symptoms might be due to a different illness than mesothelioma is valuable in settlement negotiations.

In the past, certain lawyers have employed this method to deny responsibility and get large sums. However as the defense bar has grown, this approach is generally rejected by the courts. This is particularly true in federal courts, where judges routinely reject such claims due to lack of evidence.

Because of this, a careful evaluation of every potential defendant is essential for a successful asbestos litigation defense. This involves evaluating both the severity and length of the illness as well as the nature of the exposure. For instance a carpenter with mesothelioma will likely be awarded a higher amount of damages than someone 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 attorneys have been appointed as National Trial and National Coordination Counsel and are regularly appointed as liaison counsel by courts to manage asbestos dockets.

Asbestos litigation can be complicated and expensive. We assist our clients to understand the risks involved in this type of litigation and we assist them to create internal programs that can detect liability and safety issues. Contact us today to find out how we can help protect your business's interests.