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 knowledgeable in the many issues that arise when asbestos litigation such as jurisdictional Case Management Orders and expert selection.
Research has shown that exposure to asbestos can cause lung disease and damage. This includes mesothelioma and less serious diseases like asbestosis and pleural plaques.
Statute of limitations
In most personal injury cases, a statute of limitation sets a deadline for the length of time that follows an injury or accident, the victim is allowed to bring an action. In asbestos cases, the statutes of limitations differ according to the state. They are also different from other personal injury claims as asbestos-related illnesses can take years to be apparent.
Due to the delay in the development of mesothelioma, and other asbestos-related illnesses, the statute of limitation clock starts on the date of diagnosis, or death in the case of wrongful death instead of the date of exposure. This discovery rule is why the families of victims should seek out as soon as they can with a reputable 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 deadline at which the victim has to make a claim. Failure to file a lawsuit could result in the case being barred. The statute of limitations differs according to state, and the laws vary greatly however, most states allow between one and six years from the date the victim was diagnosed with an asbestos-related illness.
During an asbestos case, the defendants will often try to use the statute of limitations as a defense against liability. They could argue that, for instance, plaintiffs should have been aware or were aware of their asbestos exposure and had an obligation to notify their employer. This is a common argument in mesothelioma lawsuits. It it can be difficult to prove for the victim.
Another potential defense in an asbestos case is that the defendants did not have the resources or the means to warn of the dangers posed by the product. This is a complex argument and largely depends on the evidence available. In California for instance, it was successfully claimed that defendants were not equipped with "state-ofthe-art" information and were not able to provide adequate warnings.
In general, it is recommended to start the asbestos lawsuit in the state where the victim's residence. In certain situations, it may make sense to bring a lawsuit in a different state than the victim's. This usually has to do with the place of the employer or where the person was exposed to asbestos.
Bare Metal
The defense of bare metal is a standard strategy used by manufacturers of equipment in asbestos litigation. The bare metal defense asserts that, because their products left the plant as bare steel, they did not have a duty to inform about the dangers of asbestos-containing materials later added by other parties, such as thermal insulating seals and flanges. Dallas asbestos attorneys is recognized in certain jurisdictions, but not all.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries has changed that. The Court rejected the manufacturers' preferred bright line rule and instead established a new standard under which a manufacturer has a duty to inform consumers if they know that its integrated product will be hazardous for its intended use and does not have any reason to believe that its final users will be aware of that risk.
While this change in law may make it more difficult for plaintiffs to bring claims against manufacturers of equipment, it's not the end of the story. The DeVries decision does not apply to state-law claims that are based on strict liability or negligence and not brought under federal maritime law statutes like the Jones Act.
Plaintiffs will continue to seek a more expansive 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 if the state recognizes this defense. The plaintiff who died in this instance was carpenter who was exposed to turbines, switchgear and other asbestos-containing parts at an Texaco refining facility.
In a similar case in Tennessee, the Tennessee judge has indicated that he is likely to adopt the third perspective of bare metal defense. The plaintiff in the 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 from third parties which included the Equipment Defendants. The judge in that case ruled that the bare metal defense applies to cases like this. The Supreme Court's DeVries decision will impact how judges apply the bare-metal defense in other cases.
Defendants' Experts
Asbestos lawsuits are complex and require skilled lawyers who have a thorough knowledge of both legal and medical issues as well as access to top expert witnesses. EWH attorneys have decades of experience in asbestos litigation, such as investigating claims, creating strategies for managing litigation, including budgets, identifying and bringing in experts, and defending plaintiffs and defendants with expert testimony in trials and depositions.
Typically asbestos cases require testimony of medical professionals such as a radiologist and pathologist who testify on X-rays or CT scans that reveal scarring of lung tissue that is typical of asbestos exposure. A pulmonologist can also testify regarding symptoms, like breathing problems, which are similar to mesothelioma as well as other asbestos-related illnesses. Experts can provide an in-depth description of the plaintiff's employment history, including an investigation of their tax social security, union and job records.
It is possible to consult an engineer from the forensic field or an environmental scientist to determine the source of asbestos exposure. These experts can aid the defendants argue that the asbestos exposure was not at the workplace, but was brought to the home through clothing worn by workers or air outside.
Many plaintiffs' attorneys will employ experts in economic loss to assess the financial losses incurred by victims. They can determine how much money a victim has lost due to their illness 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 a person cannot perform anymore.
It is essential that defendants challenge plaintiffs' expert witnesses, particularly in the event that they have testified on hundreds or dozens of other asbestos claims. Experts can lose credibility with the jury if their testimony is repeated.
In asbestos cases, defendants may also seek summary judgement if they can show that the evidence doesn't prove that the plaintiff was injured by exposure to the products of the defendant. A judge will not grant summary judgement just because a defendant points out weaknesses in the plaintiff's evidence.
Trial
Due to the latency issues involved in asbestos cases, it is difficult to make a significant discovery. The duration between exposure and illness can be measured in decades. Therefore, determining the facts upon which to make a case requires a thorough review of an individual's entire work history. This usually involves an exhaustive review of social security and tax records, union and financial records as in interviews with co-workers and family members.
Asbestos sufferers are more likely to develop less serious illnesses like asbestosis before a mesothelioma diagnosis. Because of this, a defendant's ability to show that the plaintiff's symptoms are caused by another disease than mesothelioma can have significant significance in settlement negotiations.
In the past, certain attorneys have used this strategy to deny liability and get large amounts of money. As the defense bar has evolved and the courts have generally rejected this approach. This has been particularly evident in federal courts where judges have routinely dismissed such claims due to the absence of evidence.
A careful evaluation of every potential defendant is crucial to be able to defend effectively in asbestos litigation. This includes assessing the duration and nature of the exposure, as well as the severity of any disease that is diagnosed. For instance carpenters with mesothelioma will likely be awarded a higher amount of damages than one who has only had asbestosis.
The Bowles Rice Asbestos Litigation Team regularly defends suppliers, manufacturers, distributors, contractors, 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 to handle asbestos dockets.
Asbestos litigation can be complicated and expensive. We assist our clients to recognize the risks involved in this kind of litigation and we work with them to create internal programs that are proactive and identify liability and safety concerns. Contact us today to find out more about how our firm can safeguard your company's interests.