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 well-versed in the myriad issues that arise when the defense of asbestos cases that include jurisdictional Case Management Orders and expert selection.
Research has proven that exposure to asbestos can lead to lung damage and cause lung disease. This includes mesothelioma, as well as lesser diseases like asbestosis and pleural plaques.
Statute of Limitations
In most personal injury cases, a statute limits the time frame within which a victim can make a claim. For asbestos the statute of limitations is different by state and differs from in other personal injury lawsuits because the signs of asbestos-related diseases can take years to show up.
Due to the delay in the development of mesothelioma and asbestos-related diseases, the statute of limitations clock begins at the date of diagnosis (or death in wrongful death cases) rather than at the date of exposure. This discovery rule is the reason why the families of victims need to work as soon as they can with an experienced New York asbestos lawyer.
When filing an asbestos lawsuit, there are many aspects that must be taken into account. One of the most important is the statute of limitations. The statute of limitations is the deadline at which the victim has to file a lawsuit. In the event of a delay, it could result in the case being thrown out. The time limit for filing a lawsuit varies 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.
During an asbestos lawyers case, the defendants will often try to use the statute of limitations as a defense against liability. For instance, they could claim that the plaintiffs knew or should have known about their exposure, and therefore had a duty to notify their employer. This is a common argument in mesothelioma litigation and isn't easy for the victim to prove.
A defendant in a case involving asbestos could also argue that they did not have the resources or the means to inform people about the dangers of the product. This is a complicated case and depends largely on the available evidence. In California for instance, it was successfully argued that the defendants lacked "state-ofthe-art" information and therefore could not give adequate warnings.
Generally speaking, it is preferential to file the asbestos lawsuit within the state of the victim's home. However, there are certain situations in which it might be beneficial to file the lawsuit in a different state. It usually has to do with the location of the employer or the place where the worker was exposed to asbestos lawyer.
Bare Metal
The bare-metal defense is a strategy that equipment manufacturers use in asbestos litigation. The bare metal defense asserts that because their products left the plant in bare steel, they did not have a duty to warn about the dangers posed by asbestos-containing products later added by other parties, such as thermal insulating seals and flanges. This defense has been embraced in certain areas, but it is not available under federal law in all states.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries has changed that. The Court did not accept the preferred rule of manufacturers' bright line rule and instead established an entirely new standard that states that a manufacturer has a duty to inform consumers if they know that its product is likely to be hazardous for its intended use and has no reason to believe that the end users will realize that risk.
While 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 is not applicable to state-law claims made on the basis of negligence or strict liability, and are not covered under federal maritime law statutes, like the Jones Act or the Maritime Claims Act.
Plaintiffs will continue to pursue a broader understanding of the bare-metal defense. For example in the asbestos MDL case in Philadelphia the case has been remanded to an Illinois federal court to decide whether the state is able to recognize the defense. The deceased plaintiff in this claim was a carpenter who had been exposed to turbines, switchgear and other asbestos-containing parts at an Texaco refining facility.
In a similar case a judge in Tennessee has stated that he is likely to take a different approach to the defense of bare metal. In that case, the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed with mesothelioma. He had worked 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 is applicable to cases like this. The Supreme Court's DeVries decision will influence how judges apply the bare-metal defense in other contexts.
Defendants' Experts
Asbestos lawsuits are complex and require experienced lawyers who have a thorough understanding of medical and legal issues, as well as access to top experts. Attorneys at EWH have decades of experience in assisting clients with various asbestos litigation matters including investigating claims, developing strategic budgets and litigation management strategies as well as identifying and retaining experts, and defense of defendants and plaintiffs' expert testimony during depositions and in court.
Typically, asbestos attorney cases require the testimony of medical professionals like pathologists and radiologists who can testify regarding X-rays or CT scans that show scarring of lung tissue typical of asbestos exposure. A pulmonologist may also provide evidence of symptoms, such as breathing difficulties, which are similar to those experienced by mesothelioma, as well as other asbestos-related diseases. Experts can provide a thorough report of the plaintiff's job history, including an investigation of their tax, social security and union records as well as job and employment details.
An forensic engineering or environmental science expert may be required to clarify the cause of the asbestos exposure. Experts in these fields can assist defense attorneys argue that the alleged asbestos was not exposed at work and instead was brought home on workers' clothing or from the outside air (a common defense in mesothelioma cases).
Many of the plaintiffs lawyers will bring experts in economic loss to determine the financial loss suffered by the victims. These experts can calculate the amount of money a person has lost due to disease and the impact it had on his or her life. They can also testify about expenses such as medical bills and the cost of hiring a person to take care of household chores that the person can no longer perform.
It is important for defendants to challenge expert witnesses of the plaintiff, especially in cases where they have been called to testify in dozens or hundreds of asbestos-related claims. These experts can lose credibility with the jury if their testimony is repeated.
In asbestos cases, defendants can also apply for summary judgment when they show that the evidence doesn't establish that the plaintiff was injured from exposure to the defendant's product. However, a judge will not accept summary judgment simply because the defendant points to weaknesses in the plaintiff's evidence.
Trial
The issues of latency in asbestos cases mean that obtaining an accurate diagnosis can be nearly impossible. The time between exposure and the onset of the disease can be measured in decades. To determine the facts upon which to build a claim, it is necessary to review an individual's work history. This requires a thorough examination of the individual's social security, tax and union financial records, as well as interviews with family members and co-workers.
asbestos lawyers sufferers are more likely to develop less serious diseases such as asbestosis prior to a mesothelioma diagnosis. Due to this the capacity of a defendant to prove that a plaintiff's symptoms might be caused by a different disease that is not mesothelioma-related is crucial in settlement negotiations.
In the past, certain attorneys have employed this method to deny responsibility and obtain large awards. However as the defense bar has developed, this approach is generally rejected by the courts. This is especially true in federal courts, where judges often dismiss such claims due to lack of evidence.
This is why a careful evaluation of every potential defendant is crucial to an effective asbestos litigation defense. This includes assessing the length and extent of exposure as well as the degree of any diagnosed illness. For example carpenters with mesothelioma is likely to be awarded more damages than someone who has only suffered from asbestosis.
The Bowles Rice Asbestos Litigation Team regularly defends product manufacturers, suppliers, distributors, contractors, property owners, and employers in asbestos-related litigation. Our lawyers have been National Trial and National Coordination Counsel and are regularly appointed as liaison counsel by courts to manage asbestos dockets.
Asbestos cases can be complicated and costly. We assist our clients in understanding the risks involved in this type of litigation. We work with them to formulate internal programs designed to proactively identify potential safety and liability issues. Contact us today to find out more about how our firm can protect your business's interests.