A Look At The Ugly The Truth About Asbestos Litigation Defense

Asbestos Litigation Defense

Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The attorneys of the Firm regularly speak at national conferences and are knowledgeable in the myriad of issues that arise when the defense of asbestos cases, including jurisdictional Case Management Orders and expert selection.

Research has shown that exposure to asbestos can cause lung damage and cause lung disease. This includes mesothelioma, as and lesser diseases such as asbestosis and plaques in the pleural region.

Statute of Limitations

In most personal injury cases, a statute of limitations sets a deadline for the time after an accident or injury the victim can start an action. In the case of asbestos, the statute of limitations varies by state and is different than in other personal injury lawsuits due to the fact that asbestos attorneys-related diseases can take a long time to show up.

Due to the delay in the development of mesothelioma as well as other asbestos-related diseases the statute of limitations clock starts at the date of diagnosis (or death in the case of wrongful deaths) rather than at the time 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.

When you file a asbestos lawsuit, there are a variety of things that need to be considered. One of the most important is the statute of limitations. This is the deadline which the victim must submit the lawsuit by, and failure to file the lawsuit will cause the case to be barred. The time limit for filing a lawsuit varies according to state, and the laws differ widely, but most allow for between one and six years from when the victim was diagnosed with an asbestos-related disease.

In asbestos cases defendants frequently make use of the statute of limitations as a defense against liability. They may say that, for instance, the plaintiffs should have known or knew about their exposure to asbestos and that they had the obligation of notifying their employer. This is a common argument in mesothelioma cases and isn't easy for the victim to prove.

A defendant in a case involving asbestos could also argue that they did not have the resources or the means to warn about the dangers of the product. This is a complicated case that relies heavily on the evidence available. For example, it was successfully argued in California that the defendants did not have "state-of-the-art" knowledge and could not be expected to give adequate warnings.

In general, it is recommended to file the asbestos lawsuit (written by sciencewiki.science) in the state where the victim's residence. In some cases, it may make sense to make a claim in a different state than the victim's. This is usually connected 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 claims that since their products left the plant as bare steel, they did not have a responsibility to warn about the dangers posed by asbestos-containing products later added by other parties, such as thermal insulating seals and flanges. This defense has been accepted in some states, but it's not available under federal law in all states.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the law. The Court did not accept the preferred rule of manufacturers' bright line rule and instead created the new standard under which a manufacturer has a duty to warn consumers if it is aware that its integrated product will be hazardous for its intended use and does not have any reason to believe that its end users will realize 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 based on negligence or strict liability and are not covered under federal maritime law statutes, like the Jones Act or the Maritime Claims Act.

Plaintiffs will continue to pursue a broader interpretation of the bare-metal defense. In the Asbestos Multi District Litigation in Philadelphia for instance, a case was remanded to an Illinois federal judge to determine whether that state recognizes this defense. The deceased plaintiff in this claim was a carpenter who had been exposed to turbines, switchgear and other asbestos-containing components at the Texaco refinery.

In the same case in Tennessee, the Tennessee judge has indicated that he is likely to take the third approach to the defense of bare metal. The plaintiff in the case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma following working on equipment that had been repaired or replaced by contractors from third parties including the Equipment Defendants. The judge in the case ruled that bare metal defenses are applicable to cases similar to this. The Supreme Court's DeVries decision will impact how judges apply the bare metal defense in other contexts.

Defendants' Experts

Asbestos lawsuits are complicated and require skilled lawyers with a thorough understanding of medical and legal issues as well as access to top experts. EWH attorneys have decades of experience in asbestos litigation, which includes investigating claims, preparing strategies for managing litigation and budgets, identifying and hiring experts and defending plaintiffs as well as defendants with expert testimony in depositions and trials.

In most cases, asbestos cases require the testimony of medical professionals like a radioologist or pathologist. They will testify that X-rays and CT scans show the typical lung tissue scarring 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 diseases. Experts can provide a detailed account of the plaintiff's work background, which includes an examination of his or her tax social security documents, union and job information.

It is possible to consult an engineer from the forensic field or an environmental scientist to determine the cause of asbestos exposure. These experts can help defendants to argue that asbestos exposure was not at the workplace, but brought to the home through clothing worn by workers or the outside air.

A lot of plaintiffs' lawyers hire economic loss experts to assess the financial losses incurred by victims. They can estimate the amount of money that a victim has lost due to their illness and the impact it had on his or her 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 one cannot perform anymore.

It is important that plaintiffs challenge defendants experts, particularly in the event that they have testified on hundreds or dozens of other asbestos claims. These experts can lose credibility with the jury when their testimony is repeated.

In asbestos cases, defendants can also seek summary judgment in cases where they can demonstrate that the evidence does not show that the plaintiff was injured by exposure to the products of the defendant. A judge won't grant summary judgement just because a defendant has pointed out holes in the plaintiff's proof.

Going to Trial

The delays involved in asbestos cases means that meaningful discovery can be nearly impossible. The time between exposure and the onset of disease can be measured by decades. Therefore, determining the facts upon which to build a case requires a review of an individual's entire work history. This requires a thorough examination of the individual's tax, social security and union records, as well as financial documents, in addition to interviews with family members and co-workers.

Asbestos patients often develop less serious ailments like asbestosis prior to the diagnosis of mesothelioma. Because of this, a defendant's ability to demonstrate that plaintiff's symptoms stem from another disease than mesothelioma could be of significant value 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 and diversified, this strategy has been generally rejected by the courts. This is particularly true in the federal courts, where judges have routinely dismissed such claims based on lack of evidence.

A thorough evaluation of each potential defendant is crucial for a successful defense in asbestos litigation. This includes assessing the length and nature of the exposure as and the severity of any diagnosed disease. For example, a carpenter who has mesothelioma is likely to be awarded higher damages than one who has only suffered from asbestosis.

The Bowles Rice Asbestos Litigation Team defends asbestos-related lawsuits for manufacturers, distributors and suppliers contractors, employers and property owners. Our lawyers have extensive experience serving as National Trial and National Coordinating Counsel, and are frequently 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 recognize the risks involved in this kind of litigation and we collaborate with them to develop internal programs that will proactively identify liability and safety concerns. Contact us to find out how we can protect the interests of your company.