Asbestos Litigation Defense
Cetrulo LLP has been widely recognized as a leader in asbestos litigation. The attorneys of the Firm are regularly invited to present at national conferences. They are also knowledgeable on the many issues that arise when litigating asbestos cases.
Research has proved that asbestos exposure causes lung damage and disease. This includes mesothelioma, other lesser illnesses like asbestosis and plaques in the pleural region.
Statute of Limitations
In most personal injury claims statutes limit the time period after which a victim can make an action. For asbestos the statute of limitations is different by state and differs from other personal injury cases due to the fact that asbestos-related diseases can take years to show up.
Due to the delay in the development of mesothelioma and other asbestos-related illnesses the statute of limitations begins at the time of diagnosis, or death in wrongful death claims, rather than the date exposure. This discovery rule is why victims and their families must work as quickly as they can with an experienced New York asbestos lawyer.
There are a myriad of factors to consider when making an asbestos lawsuit. The statute of limitations is one of the most important. This is the time limit that the victim must submit the lawsuit by, and failure to file a lawsuit by the deadline could result in the case being closed. 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 years after the date of diagnosis.
During an asbestos case when the defendants often try to use the statute of limitations as a defense against liability. They might argue for instance that plaintiffs should have been aware or were aware of their exposure to asbestos and that they had the obligation of notifying their employer. This is a common defense in mesothelioma lawsuits, and can be difficult to prove for the victim.
Another possible defense in an asbestos case is that the defendants did not have the means or resources to warn of the dangers posed by the product. This is a complex argument that is largely based on the evidence that is available. In California, for example it was claimed that defendants were not equipped with "state-ofthe-art" information and therefore could not give adequate warnings.
In general, it's better to make an asbestos lawsuit in the state in which the victim lives. However, there are circumstances in which it might make sense to file the lawsuit in another state. It usually has to do with the place of the employer or the place where the worker was exposed to asbestos.
Bare Metal
The bare-metal defense is a strategy that equipment manufacturers use in asbestos litigation. It argues that since their products were manufactured as raw metal, they were under no duty to warn of the risks of asbestos-containing materials that were added by other parties later for example, thermal insulation and flange gaskets. This defense is accepted in certain jurisdictions, but not all.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the law. The Court has ruled against the manufacturers' preferred bright line rule and instead, the new standard under which manufacturers are required to inform consumers if they know that its product will be hazardous for its intended use and has no reason to believe that the end users will be aware of that risk.
Although this change in law could make it more difficult for plaintiffs to bring claims against manufacturers of equipment, it's not the end of the tale. The DeVries decision is not applicable to state-law claims which are based on strict liability, or negligence, and is not applicable to claims brought under federal maritime law statutes such as the Jones Act.
Plaintiffs will continue to seek a more expansive reading of the bare metal defense. In the Asbestos Multi-District Litigation in Philadelphia for instance the case was remanded 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 in a Texaco refinery that contained asbestos-containing components.
In a similar case in Tennessee, the Tennessee judge has stated that he would take the third approach to the defense of bare metal. In the case, the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed as having mesothelioma. Joliet asbestos lawsuit had worked on equipment that was repaired or replaced by third-party contractors, including Equipment Defendants. The judge in that case ruled that the bare-metal defense is applicable to cases such as this. The Supreme Court's DeVries decision will affect the way judges apply the bare metal defense in other contexts.
Defendants' Experts
Asbestos litigation is complex and require experienced lawyers with a thorough knowledge of legal and medical issues, as well as access to top experts. EWH attorneys have years of experience in asbestos litigation, which includes investigating claims, developing strategies for managing litigation and budgets, as well as identifying and hiring experts as well as defending plaintiffs and defendants expert testimony at trials and depositions.
Typically, asbestos cases require the testimony of medical professionals such as pathologists and radiologists who testify on X-rays or CT scans that show the lung tissue being damaged typical of asbestos exposure. A pulmonologist can also testify about symptoms such as breathing difficulties and coughing, which are similar to those of mesothelioma or other asbestos-related diseases. Experts can provide a thorough description of the plaintiff's employment background, including an investigation of their tax, social security, union and job records.
An forensic engineering or environmental scientist may be required to clarify the reason for the asbestos exposure. These experts can aid defendants to argue that asbestos exposure was not in the workplace, but was brought to the home through clothing worn by workers or by airborne particles.
Many attorneys representing plaintiffs employ economic loss experts to calculate the financial loss suffered by victims. They can estimate the amount of money that a victim has lost due to their illness and its impact on his or her lifestyle. They can also testify on expenses like medical bills and the cost of hiring someone to do household chores that a person is unable to do anymore.
It is important for defendants to challenge expert witnesses of the plaintiff, especially when they have given evidence in dozens, or hundreds of other asbestos-related claims. Experts can lose credibility before jurors if their testimony is repeated.
In asbestos cases, defendants can also apply for summary judgment if they can show that the evidence doesn't show that the plaintiff was injured from exposure to the defendant's product. However, a judge will not grant summary judgment just because the defendant cites holes in the plaintiff's proof.
Trial
Due to the latency issues involved in asbestos cases, it can be difficult to make a significant discovery. The time between exposure and the onset of disease can be measured in years. To establish the facts on which to build an argument, it is necessary to examine an individual's employment background. This involves a thorough review of the individual's social security, tax, union and financial documents, as well as interviews with family members and co-workers.
Asbestos sufferers are more likely to develop less serious illnesses like asbestosis before being diagnosed with mesothelioma. Because of this the capacity of a defendant to demonstrate that the plaintiff's symptoms could be due to another disease than mesothelioma is valuable in settlement negotiations.
In the past, certain attorneys have used this approach to avoid responsibility and receive large amounts of money. As the defense bar has evolved, courts have generally resisted this approach. This is particularly true for federal courts, where judges routinely reject such claims due to the absence of evidence.
A thorough evaluation of each potential defendant is crucial for a successful defense in asbestos litigation. This includes assessing the length and extent of exposure, as in addition to the severity of any diagnosed disease. For instance, a carpenter who has mesothelioma may be awarded higher damages than one who has only suffered from asbestosis.
The Bowles Rice Asbestos Litigation Team regularly defends suppliers, manufacturers contractors, distributors, 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 in order to manage asbestos dockets.
Asbestos litigation can be a bit complicated and costly. We help our clients understand the risks involved in this kind of litigation and we work with them to create internal programs that will proactively identify safety and liability concerns. Contact us today to find out more about how our firm can protect your business's interests.