Asbestos Litigation Defense
Cetrulo LLP has been widely recognized as a leader in asbestos litigation. The firm's lawyers are frequently invited to present at national conferences. They are also knowledgeable on the numerous issues that arise in trying to defend asbestos cases.
Research has demonstrated that exposure to asbestos can lead to lung damage and cause lung disease. This includes mesothelioma, and lesser diseases such as asbestosis and plaques in the pleural region.
Statute of limitations
In the majority of personal injury claims statutes limit the time period after which a victim can file a claim. In the case of 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 a long time to manifest.
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 instead of the date of exposure. This discovery rule is why victims and their families should seek out as soon as they can with a reputable New York asbestos lawyer.
When filing an asbestos lawsuit, there are many aspects that must be taken into account. The statute of limitations is among the most crucial. The statute of limitations is the deadline by which the victim must make a claim. Failure to file a lawsuit could result in the lawsuit being barred. The statute of limitations varies by state, and the laws differ greatly, but most allow for between one and six years from the time the victim was diagnosed with an asbestos-related disease.
In an asbestos-related case, the defendants will often attempt to invoke the statute of limitations as a defense against liability. They may say, for example, that plaintiffs should have been aware or were aware of their asbestos exposure and had 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.
A defendant in a case involving asbestos could also argue that they didn't have the resources or means to inform people about the dangers of the product. This is a complicated case and depends largely on the evidence available. For instance it was successfully argued in California that the defendants did not possess "state-of-the-art" knowledge and could not be expected to give adequate warnings.
In general, it is best to file an asbestos lawsuit in the state where the victim resides. In some cases it might be beneficial to make a claim in a state other than the victim's. This is usually to be related to where the employer is located or where the person was first exposed to asbestos.
Bare Metal
The defense of bare metal is a common strategy employed by equipment manufacturers in asbestos litigation. The bare-metal defense claims that, because their products left the plant as bare steel, they did not have a duty to warn about the dangers of asbestos-containing products later added by other parties, such as thermal insulating and flange seals. This defense has been accepted in some jurisdictions, but it is not permitted under federal law in all states.
The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries has altered the law. The Court rejected the manufacturers' preferred bright line rule, and instead, a new standard under which manufacturers are required to warn if it knows that its product will be hazardous for the purpose it was designed for and does not have any reason to believe that its end users will be aware of that risk.
While this change in law may make it more difficult for plaintiffs to bring claims against equipment manufacturers, it is not the end of the tale. First reason, the DeVries decision does not apply to state-law claims that are 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 pursuing a broader interpretation of the bare-metal defense. For example in the asbestos MDL in Philadelphia the case has been remanded back to an Illinois federal court to decide whether that state recognizes the defense. The deceased plaintiff in that claim was a carpenter, and was exposed to switchgear and turbines at the Texaco refinery that contained asbestos-containing components.
In a similar case, a judge in Tennessee has stated that he will take a different view of the bare-metal defense. The plaintiff in that case was a Tennessee Eastman chemical plant asbestos litigation news mechanic who was diagnosed with mesothelioma after working on equipment that had been repaired or replaced by third-party contractors which included the Equipment Defendants. The judge in the case decided that bare metal defenses are applicable to cases similar to this. The Supreme Court's DeVries decision will influence how judges use the bare-metal defense in other situations.
Defendants' Experts
Asbestos litigation is 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 EWH have decades of experience helping clients in a variety of asbestos litigation cases, such as investigating claims, preparing strategic budgets and plans for managing litigation as well as hiring and retaining experts and defending plaintiffs' and defendants expert testimony in deposition and at trial.
Typically asbestos cases require testimony of medical professionals such as pathologists and radiologists who can testify regarding X-rays or CT scans that show scarring of the lung tissue typical of asbestos exposure. A pulmonologist can also be a witness to symptoms like difficulty breathing, which are similar to those of mesothelioma, as well as other asbestos-related diseases. Experts can provide a thorough account of the plaintiff's work background, including an examination of his or her tax, social security and union records as well as job and employment details.
A forensic engineer 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 the workplace and was instead brought home on workers' clothing or from the outside air (a common defense in mesothelioma cases).
Many plaintiffs' attorneys will employ economic loss experts to calculate the financial losses incurred by victims. These experts can calculate the amount of money a person has lost due to their illness and its impact on their lifestyle. They can also testify on expenses like medical bills as well as the cost of hiring a person to take care of household chores that a person can no longer perform.
It is essential that plaintiffs challenge defendants experts, particularly when they have testified to dozens or hundreds of asbestos claims. Experts can lose credibility with jurors when their testimony is repeated.
Plaintiffs in asbestos cases may also request summary judgment if they show that the evidence doesn't show that the plaintiff suffered any injuries due to their exposure to the defendant's product. A judge won't issue a summary judgment merely because a defendant points out holes in the plaintiff's proof.
Trial
The delays involved in asbestos cases means that significant information can be almost impossible. The time between exposure and disease can be measured in decades. Thus, establishing the facts on which to create a case, requires a review of the entire work history. This includes a thorough analysis of the individual's tax, social security and union financial documents, in addition to interviews with family members and co-workers.
Asbestos sufferers are often diagnosed with less serious diseases like asbestosis prior to a mesothelioma diagnose. Because of this, the ability of a defendant to show that a plaintiff's symptoms may be caused by a different disease than mesothelioma is valuable in settlement negotiations.
In the past, certain attorneys have used this strategy to deny liability and get large awards. However as the defense bar has developed the strategy is generally rejected by the courts. This is especially true in the federal courts where judges have frequently dismissed claims based on the lack of evidence.
A thorough evaluation of each potential defendant is therefore essential to ensure a successful defense in asbestos litigation. This includes assessing the severity and length of the illness as well as the type of the exposure. For instance, a worker who has mesothelioma will likely to suffer greater damage than someone who has asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related lawsuits for manufacturers, suppliers and distributors contractors, employers, and property owners. Our attorneys have extensive experience in the role of National Trial and National Coordinating Counsel. They are frequently appointed by the courts as liaison counsel to manage the prosecution of asbestos dockets.
Asbestos litigation can be complicated and expensive. We help our clients understand the risks associated with this type of litigation. We assist them in establishing internal programs that will identify potential liability and safety concerns. Contact us today to find out how we can help protect the interests of your company.