Asbestos Litigation Defense
Cetrulo LLP is widely recognized as a leader in asbestos litigation defense. The Firm's attorneys are regularly invited to give presentations at national conferences. They are also well-versed in the myriad of issues that arise when defending asbestos cases.
Research has shown that asbestos exposure can cause lung damage and diseases. This includes mesothelioma, and less serious diseases like asbestosis and plaques in the pleural cavity.
Statute of Limitations
In most personal injury cases there is a statute that limits the time frame within which a victim can make a claim. In asbestos cases, statutes of limitations vary by state. They are also different from other personal injury lawsuits since asbestos-related illnesses may take a long time to manifest.
Due to the delaying nature of mesothelioma, and other asbestos-related diseases, the statute of limitation begins at the time of diagnosis or death in the case of wrongful death, rather than the date exposure. This discovery rule is why victims and their family members must consult a reputable New York mesothelioma lawyer as early as is possible.
There are a myriad of aspects to take into consideration when making an asbestos lawsuit. The statute of limitations is one of the most crucial. The statute of limitations is the time limit that the victim has to make a claim. In the event of a delay, it will result the lawsuit being barred. The statute of limitations differs in each state, and laws differ widely in some states, but the majority allow between one and six years from when the victim was diagnosed with an asbestos-related illness.
In an asbestos case defendants frequently make use of the statute of limitations as a defense against liability. For instance, they could argue that the plaintiffs were aware or should have been aware of their exposure, and therefore were required to inform their employer. This is a common defense in mesothelioma lawsuits, and is difficult to prove for the victim.
A defendant in an asbestos case may be able to claim that they didn't have the resources or means to warn about the dangers of the product. This is a complicated argument that is largely based on the evidence available. For example it was successfully made in California that defendants did not have "state-of-the-art" expertise and therefore could not be expected to provide adequate warnings.
In general, it's best to make an asbestos lawsuit in the state where the victim resides. In certain circumstances it might be beneficial to file a lawsuit in a different state from the victim's. This is usually to be related to the location of the employer or where the worker was first exposed to asbestos.
Bare Metal
The defense of bare metal is a tactic that equipment manufacturers use in asbestos litigation. specializes in asbestos litigation asserts that because their products were manufactured as bare metal, they had no duty to warn of the risks of asbestos-containing products that were added by other parties later for example, thermal insulation and gaskets for flanges. This defense is a common one in some jurisdictions but not in all.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed that. The Court did not accept manufacturers' preferred bright-line rule and instead formulated the standard that requires manufacturers to inform consumers when they are aware that their integrated product is unsafe for its intended purpose. They there is no reason to believe that users will be aware of this risk.
This modification in law will make it more difficult for plaintiffs to file claims against equipment manufacturers. However it's not the end of the story. First reason, the DeVries decision is not applicable to state-law claims that are founded on negligence or strict liability and are not brought under the federal maritime law statutes, such as the Jones Act or the Maritime Claims Act.
Plaintiffs will continue pursuing an expanded interpretation of the bare-metal defense. In the Asbestos Multi-District Litigation of Philadelphia, for example the case was remanded back to an Illinois federal judge to determine whether that state recognizes this defense. The deceased plaintiff in this claim was a carpenter who was exposed to switchgear, turbines, and other asbestos-containing equipment at a Texaco refining facility.
In the same case in Tennessee, an Tennessee judge has stated that he would take the third approach to bare metal defense. The plaintiff in that case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma after working on equipment that had been repaired or replaced by contractors of third party which included the Equipment Defendants. The judge in the case held that bare metal defenses apply to cases similar to 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 tort claims brought under state law.
Defendants' Experts
Asbestos litigation is a complex affair and requires lawyers with a deep medical and legal knowledge and access to experts of the highest caliber. EWH attorneys have years of experience in asbestos litigation, which includes investigating claims, developing litigation management plans and strategic budgets, identifying and hiring experts as well as defending plaintiffs and defendants with expert testimony in trials and depositions.
Typically, asbestos cases will require the testimony of medical professionals like a radioologist or pathologist. They can confirm that X-rays as well as CT scans reveal the typical lung tissue scarring that is due to asbestos exposure. A pulmonologist may also testify on symptoms, like breathing problems, which are similar to mesothelioma and other asbestos-related illnesses. Experts can also provide a an extensive history of the work done by the plaintiff, including a review of job, union tax, social security documents.
It is possible to consult a forensic engineer or an environmental scientist in order to determine the cause of asbestos exposure. These experts can help defense attorneys argue that the alleged asbestos was not exposed at the workplace and was instead brought home on the clothing of workers or in the air outside (a common defense in mesothelioma cases).
Many attorneys representing plaintiffs hire 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 the effect it affected their life. They can also testify to costs like medical bills and the cost of hiring someone to do household chores a person is no longer able to do.
It is essential for defendants to challenge the experts of the plaintiff, particularly when they have been called to testify in dozens or hundreds of asbestos-related cases. Experts can lose credibility before jurors if their testimony is repeated.
Plaintiffs in asbestos cases may also seek summary judgment if they prove that the evidence does not establish that the plaintiff was injured from exposure to the defendant's product. A judge is not likely to give summary judgment just because a defendant identifies holes in the plaintiff's proof.
Going to Trial
The latency issues involved in asbestos cases mean that obtaining significant information can be almost impossible. The lag between exposure and the appearance of the disease could be measured in decades. To determine the facts on which to build a claim it is essential to examine an individual's employment background. This typically involves a thorough review of social security, union, tax and financial records as in interviews with co-workers and family members.
Asbestos sufferers are often diagnosed with less serious diseases like asbestosis prior to the diagnosis of mesothelioma. Because of this, the ability of a defendant to show that the plaintiff's symptoms stem from an illness other than mesothelioma could be of significant importance in settlement negotiations.
In the past, certain lawyers have used this approach to deny responsibility and get large amounts of money. However, as the defense bar has developed and diversified, this strategy has been largely rejected by the courts. This is especially evident in federal courts, where judges have routinely dismissed such claims based on lack of evidence.
As a result, a careful evaluation of every potential defendant is crucial to an effective asbestos litigation defense. This includes evaluating the severity and duration of the illness as well as the nature of the exposure. For instance, a woodworker who is diagnosed with mesothelioma is more likely to suffer greater damage than someone who has asbestosis.
The Bowles Rice Asbestos Litigation Team regularly defends suppliers, manufacturers contractors, distributors, property owners, and employers in asbestos-related litigation. Our attorneys have served as National Trial and National Coordination Counsel and are frequently appointed as liaison counsel by courts in order to manage asbestos dockets.
Asbestos cases can be complicated and expensive. We assist our clients to recognize the risks involved in this type of litigation and we work with them to create internal programs that are proactive and detect liability and safety issues. Contact us today to find out more about how our company can safeguard your company's interests.