Asbestos Litigation Defense
Cetrulo LLP is widely recognized as an industry leader in asbestos litigation defense. The attorneys of the Firm are regularly invited to speak at national conferences. They are also well-versed on the many issues that arise when defending asbestos cases.
Research has proven that exposure to asbestos causes lung damage and diseases. This includes mesothelioma as other lesser illnesses like asbestosis and plaques in the pleural region.
Statute of Limitations
In most personal injury cases, a statute limits the time limit within which a victim can file a claim. In asbestos cases, the statutes of limitations vary by state. They are also different from other personal injury claims because asbestos-related diseases can take years to develop.
Due to the delaying nature of mesothelioma as well as other asbestos-related diseases the statute of limitation clock begins at the date of diagnosis (or death, in cases of wrongful death) rather than at the time 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.
There are a myriad of factors to consider when making an asbestos lawsuit. One of the most important is the statute of limitations. The statute of limitations is the time limit by which the victim must file a lawsuit. In the event of a delay, it will result the lawsuit being barred. The statute of limitations differs in each state, and laws vary greatly in some states, but the majority allow between one and six years from the date the victim was diagnosed with an asbestos-related disease.
In asbestos cases when the defendants often attempt to use the statute of limitations to defend against liability. For instance, they might argue that the plaintiffs were aware or ought to have known about their exposure and thus had a duty to notify their employer. This is an argument that is common in mesothelioma cases, and it isn't easy for the plaintiff to prove.
A defendant in an asbestos case could be able to claim that they didn't have the resources or means to inform people about the dangers of the product. This is a complex argument that is largely based on the evidence available. In California, for example, it was successfully argument that defendants did not have "state-ofthe-art" information and could not be expected to provide sufficient warnings.
In general, it's best to file an asbestos lawsuit in the state in which the victim resides. In certain situations, it may make sense to file a lawsuit in a different state than the victim's. It usually has to do with do with the location of the employer or where the worker was first exposed to asbestos.
Bare Metal
The defense of bare metal is a typical strategy used by equipment manufacturers in asbestos litigation. The bare-metal defense claims that, because their products left the factory as bare steel, they did not have a responsibility to warn about the dangers of asbestos containing materials added later by other parties, for instance thermal insulating seals and flanges. This defense has been embraced in certain states, but it's not permitted under federal law in all states.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries has reshaped that. 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 integrated product will be dangerous for its intended use and does not have any reason to believe that the end users will realize that risk.
Although this change in law could make it more difficult for plaintiffs to bring claims against equipment manufacturers, it is 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, such as the Jones Act or the Maritime Claims Act.
Plaintiffs will continue pursuing an expanded interpretation of the defense of bare metal. For instance in the asbestos MDL case in Philadelphia, a case has been remanded to an Illinois federal court to determine whether that state recognizes the defense. The plaintiff who died in this case was carpenter who was exposed to switchgear, turbines, and other asbestos-containing parts at the Texaco refining facility.
In the same case in Tennessee, the Tennessee judge has stated that he would adopt the third view of the defense of bare metal. The plaintiff in that case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma following working on equipment that was repaired or replaced by contractors of third party which included the Equipment Defendants. Honolulu asbestos lawyer in the case ruled that bare-metal defenses can be applied to cases similar to this. The Supreme Court's decision in DeVries will affect the way judges apply the bare metal defense in other cases for example, those involving tort claims under state law.
Defendants' Experts
Asbestos litigation is complex and require skilled attorneys who have a thorough knowledge of legal and medical issues as well as access to top experts. EWH attorneys have years of experience in asbestos litigation, such as investigating claims, creating litigation management plans and strategic budgets, identifying and bringing in experts as well as defending plaintiffs and defendants with expert testimony in trials and depositions.
In most cases, asbestos cases require the testimony from medical professionals like a radiologist or pathologist. They can confirm that X-rays as well as CT scans reveal the typical scarring of lung tissue due to asbestos exposure. A pulmonologist may also testify regarding symptoms, like breathing difficulties, which are similar to mesothelioma as well as other asbestos-related illnesses. Experts can also provide a an extensive history of the work done by the plaintiff, including an examination of the worker's union tax, social security records.
It may be necessary to consult a forensic engineer or an environmental scientist to determine the cause of asbestos exposure. Experts in these fields can assist defense attorneys argue that the alleged asbestos was not exposed in the workplace and was instead brought home on the clothing of workers or from the air outside (a common defense in mesothelioma cases).
Many of the plaintiffs lawyers will call in economic loss experts to determine the financial losses incurred by the victims. They will be able to calculate the amount of money a victim has lost due to their illness and its effect on his or her lifestyle. They can also testify about expenses such as medical bills and the cost of hiring someone else to complete household chores that an individual is no longer able to do.
It is essential for defendants to challenge the experts of the plaintiff, particularly in cases where they've been called to testify in dozens or hundreds of other asbestos-related claims. These experts can lose credibility with the jury when their testimony is repeated.
In asbestos cases, defendants may also seek summary judgment in cases where they can demonstrate that the evidence doesn't prove that the plaintiff suffered injury due to exposure to the products of the defendant. A judge will not grant summary judgement just because a defendant points out holes in the plaintiff's proof.
Going to Trial
The latency issues involved in asbestos cases mean that obtaining meaningful discovery can be nearly impossible. The time between exposure and disease can be measured in decades. To determine the facts upon which to build a claim, it is necessary to examine an individual's employment history. This includes a thorough analysis of the individual's social security, tax and union financial documents, in addition to interviews with family members and coworkers.
Asbestos sufferers are often diagnosed with less serious diseases like asbestosis prior to a mesothelioma diagnose. Because of this, a defendant's ability to demonstrate that plaintiff's symptoms are due to a disease other than mesothelioma can have significant value in settlement negotiations.
In the past, some lawyers have employed this tactic to deny liability and obtain large sums. As the defense bar evolved, courts have largely rejected this method. This is especially true in federal courts, where judges routinely dismiss claims based on lack of evidence.
Because of this, an in-depth analysis of every potential defendant is crucial to a successful asbestos defense. This includes assessing the length and the nature of the exposure, as well as the severity of any disease that is diagnosed. For instance, a woodworker 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 lawyers have extensive experience serving as National Trial and National Coordinating Counsel, and are regularly appointed by courts as liaison counsel to oversee the prosecution of asbestos dockets.
Asbestos litigation can be complex and costly. We assist our clients to understand the risks involved in this type of litigation and we work with them to develop internal programs that are proactive and detect liability and safety issues. Contact us today to find out how we can protect your business's interests.