Asbestos Litigation Defense
Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The attorneys of the Firm are regularly invited to speak at national conferences. They are also knowledgeable on the numerous issues that arise when defending asbestos cases.
Research has shown that asbestos exposure can cause lung damage and diseases. This includes mesothelioma, and lesser diseases such as asbestosis and plaques in the pleural cavity.
Statute of Limitations
In most personal injury cases, a statute of limitation sets a deadline for the length of time that follows an accident or injury the victim can file an action. In the case of asbestos, the statute of limitations is different by state and is different than in other personal injury lawsuits because the signs of asbestos-related diseases can take years to manifest.
Due to the delaying nature of mesothelioma and other asbestos-related diseases the statute of limitation clock starts at the date of diagnosis (or death, in wrongful death cases) instead of the date of exposure. This discovery rule is the reason that victims and their families must work as quickly as they can with a reputable New York asbestos lawyer.
There are a variety of aspects to consider when filing an asbestos lawsuit. The statute of limitations is one of the most crucial. The statute of limitations is the time limit at which the victim has to start a lawsuit. In the event of a delay, it will result in the case being thrown out. The time limit for filing a lawsuit varies in each state, and laws vary greatly in some states, but the majority allow between one and six years from when the victim was diagnosed with an asbestos-related illness.
In asbestos cases in which the defendants are involved, they will typically attempt to invoke the statute of limitations as a defense against liability. They might argue that, for instance, plaintiffs should have been aware or had knowledge of their exposure to asbestos and that they had the obligation of notifying their employer. This is a common argument in mesothelioma lawsuits, and it isn't easy for the victim to prove.
Another defense that could be used in a case involving asbestos is that the defendants didn't have the means or resources to warn of the dangers posed by the product. This is a difficult case that relies heavily 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 give adequate warnings.
In general, it's better to make an asbestos lawsuit in the state where the victim lives. In certain situations it might be beneficial to bring a lawsuit in a different state than the victim's. It usually has to do with be related to the location of the employer or the place where the employee was first exposed to asbestos.
Bare Metal
The bare-metal defense is a strategy that equipment manufacturers use in asbestos litigation. It asserts that because their products were manufactured as bare metal, they had no duty to warn of the dangers of asbestos-containing products that were added by other parties at a later time, such as thermal insulation and gaskets for flanges. This defense is accepted in some jurisdictions, but not all.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the rules. The Court has rejected the bright-line rule that manufacturers prefer and instead formulated the standard that requires manufacturers to inform consumers if they know that their integrated product is unsafe for its intended purpose. They have no reason to believe that the end users will be aware of this danger.
While this change in law may make it harder for plaintiffs to win claims against manufacturers of equipment, it's not the end of the story. The DeVries decision does not apply to state-law claims based on strict liability or negligence, and therefore not brought under federal maritime law statutes like the Jones Act.
Plaintiffs will continue pursuing a broader interpretation of the defense of bare-metal. For example in the Asbestos MDL case in Philadelphia the case has been remanded to an Illinois federal court to decide whether that state recognizes the defense. The deceased plaintiff in this claim was carpenter who was exposed to switchgear, turbines, and other asbestos-containing equipment at a Texaco refinery.
In a similar instance, a judge in Tennessee has indicated that he will take a different view of the defense of bare metal. In the case the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed with mesothelioma. He worked on equipment that was repaired or replaced by third party contractors, including Equipment Defendants. The judge in the case held that bare-metal defenses can be applied to cases like this. The Supreme Court's DeVries decision will influence how judges use the bare-metal defense in other contexts.
Defendants' Experts
Asbestos litigation is a complex affair and requires lawyers with extensive knowledge of law and medicine, as well as accessing top experts. EWH attorneys have years of experience in asbestos litigation, which includes 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.
Typically, asbestos cases will require the testimony of medical professionals like a radiologist or pathologist. They can testify that X-rays and CT scans reveal the typical scarring of lung tissue caused by asbestos exposure. A pulmonologist may also testify about symptoms such as difficulty breathing, which are similar to those experienced by mesothelioma, as well as other asbestos-related diseases. Experts can also provide an extensive history of the work done by the plaintiff, including a review of job, union tax, social security documents.
A forensic engineer or environmental science expert could be required to explain the cause of the asbestos exposure. These experts can help defendants to argue that asbestos exposure did not occur at the workplace, but brought home by workers' clothing or by airborne particles.
Many plaintiffs' attorneys will employ economic loss experts to assess the financial loss suffered by victims. These experts can calculate the amount of money that a victim suffered due to their illness and its impact on his or her lifestyle. They can also testify on expenses like the cost of medical bills and the cost of hiring a person to take care of household chores that one can no longer perform.
It is important that defendants challenge the plaintiffs' expert witnesses, particularly in the event that they have testified on hundreds or even hundreds of asbestos claims. If they repeat their testimony, the experts could lose credibility with jurors.
In asbestos cases, defendants can also apply for summary judgment if they prove that the evidence does not show that the plaintiff suffered injuries caused by their exposure to the defendant's product. However San Jose asbestos lawsuits won't grant summary judgment just because the defendant cites gaps in the plaintiff's proof.
Trial
The issues of latency in asbestos cases means that an accurate diagnosis can be nearly impossible. The time between exposure and the onset of disease can be measured in years. As such, establishing the facts that will build a case requires a thorough review of an individual's entire work history. This requires a thorough examination of the individual's tax, social security, union and financial documents, in addition to interviews with family members and co-workers.
Asbestos patients often develop less serious illnesses such as asbestosis prior to diagnosis of mesothelioma. Because of this, the ability of a defendant to demonstrate that plaintiff's symptoms stem from an illness other than mesothelioma can have significant importance in settlement negotiations.
In the past, certain attorneys have used this approach to deny responsibility and obtain large sums. As the defense bar grew and the courts have generally rejected this strategy. This has been particularly relevant in federal courts, where judges have often dismissed claims due to the absence of evidence.
An in-depth analysis of each potential defendant is therefore essential to ensure a successful defense in asbestos litigation. This includes assessing the length and nature of the exposure as in addition to the degree of any diagnosed illness. For example a carpenter with mesothelioma is likely to be awarded higher damages than a person who has only suffered from asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation for product manufacturers distributors and suppliers contractors, employers, and property owners. Our attorneys have been appointed as National Trial and National Coordination Counsel and are frequently 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 associated with this type of litigation. We work with them to formulate internal programs that will identify potential liability and safety issues. Contact us to find out how we can safeguard your business's interests.