Asbestos Litigation Defense
Cetrulo LLP is widely recognized as an industry leader in asbestos litigation defense. The firm's lawyers regularly speak at national conferences and are well-versed in the many issues that arise when the defense of asbestos cases such as jurisdictional Case Management Orders and expert selection.
Research has proven that exposure to asbestos can cause lung damage and cause lung disease. This includes mesothelioma, and lesser illnesses like asbestosis and pleural plaques.
Statute of limitations
In the majority of personal injury claims statutes limit the time frame within the date a victim is able to make an action. In asbestos cases, statute of limitations differs by state. They also differ from other personal injury claims as asbestos-related illnesses can take a long time to be apparent.
Due to the delaying nature of mesothelioma as well as other asbestos-related diseases the statute of limitations clock begins at the date of diagnosis (or death in cases of wrongful death) instead of the time of exposure. This discovery rule is why victims and their families need to work with an experienced New York mesothelioma lawyer as early as is possible.
There are a variety of factors 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 by which the victim must file a lawsuit. Failure to file a lawsuit will result in the case being barred. The time limit for filing a lawsuit varies by state, and the laws differ greatly however, most states allow between one and six years from when the victim was diagnosed with an asbestos-related disease.
In asbestos cases when the defendants often try to use the statute of limitations to defend against liability. They might argue that, for instance, plaintiffs should have been aware or had knowledge of their exposure to asbestos and were under a duty of notification to their employer. This is an argument that is common in mesothelioma lawsuits and can be difficult for the victim to prove.
A defendant in an asbestos case could be able to claim that they didn't have the resources or means to inform people about the dangers of the product. Fullerton asbestos lawyers is a complex case and relies on the evidence available. In California for instance it was argued that the defendants lacked "state-ofthe-art" information and could not be expected give adequate warnings.
In general, it's better to file an asbestos lawsuit in the state where the victim resides. In certain situations, it may make sense to bring a lawsuit in a state other than the victim's. This usually has something to relate to the location of the employer or where the worker was first exposed to asbestos.
Bare Metal
The"bare-metal" defense is a method that equipment manufacturers use in asbestos litigation. It states that since their products were manufactured as bare metal, they had no obligation to warn of the dangers of asbestos-containing products that were added by other parties at a later date, such as thermal insulation and flange gaskets. This defense is recognized in certain jurisdictions, but not all.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the rules. The Court rejected manufacturers' preferred bright-line rule and instead formulated an obligation for the manufacturer to notify customers when they know that their product is dangerous for its intended use and there is no reason to believe that the end users will be aware of this danger.
This change in law will make it more difficult for plaintiffs to bring claims against equipment manufacturers. However this isn't the end. The DeVries decision is not applicable to state-law claims based on strict liability or negligence, and is not applicable to claims brought under federal maritime law statutes such as the Jones Act.
Plaintiffs will continue to pursue an expanded interpretation of the defense of bare metal. For instance in the asbestos MDL case in Philadelphia the case was remanded to an Illinois federal court to decide whether the state is able to recognize the defense. The plaintiff who died in this instance was carpenter who was exposed to switchgear, turbines, and other asbestos-containing equipment at the Texaco refinery.
In a similar case, a judge in Tennessee has stated that he'll take a different view of the bare-metal defense. In that case, the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed as having mesothelioma. He worked on equipment that was repaired or replaced by third-party contractors, which included Equipment Defendants. The judge in the case decided that the bare metal defense is applicable to cases like this. The Supreme Court's DeVries decision will affect the way judges apply the bare-metal defense in other cases.
Defendants' Experts
Asbestos litigation can be complex and requires lawyers with deep medical and legal knowledge as well as 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 bringing in experts as well as defending plaintiffs and defendants in expert testimony at depositions and trials.
Typically asbestos cases require testimony of medical professionals, such as a radiologist and pathologist who can testify about X-rays or CT scans that show scarring of lung tissue typical of asbestos exposure. A pulmonologist may also testify on symptoms, like breathing difficulties, which are similar to mesothelioma as well as other asbestos-related illnesses. Experts can also provide a full details of the work performed by the plaintiff, which includes a review of job, union tax, social security records.
It may be necessary to consult an engineer from the forensic field or an environmental scientist to determine the source of exposure to asbestos. Experts in these fields can assist defendants 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).
A lot of plaintiffs lawyers will bring in economic loss experts to assess the financial loss suffered by the victims. They will be able to calculate the amount of money that a victim suffered due to their illness and its effect on his or her lifestyle. They can also testify about expenses such as medical bills and the cost of hiring a person to take care of household chores that one cannot perform anymore.
It is crucial that plaintiffs challenge defendants' expert witnesses, particularly in the event that they have testified on dozens or hundreds of asbestos claims. Experts can lose credibility with jurors when their testimony is repeated.
In asbestos cases, defendants can also apply for summary judgment if they demonstrate that the evidence doesn't prove that the plaintiff was injured from exposure to the defendant's product. A judge is not likely to grant summary judgement just because a defendant points out weaknesses in the plaintiff's evidence.
Trial
The delays involved in asbestos cases mean that getting an accurate diagnosis can be nearly impossible. The duration between exposure and illness can be measured in decades. Thus, establishing the facts on which to make a case requires a thorough review of an individual's entire work history. This typically involves a thorough examination of social security, union, tax and financial records as along with interviews with coworkers and family members.
Asbestos-related victims are often diagnosed with less serious diseases such as asbestosis prior to a mesothelioma diagnosis. Because of this, a defendant's ability to demonstrate that plaintiff's symptoms are due to another disease than mesothelioma can have significant significance in settlement negotiations.
In the past, certain attorneys have employed this strategy to avoid liability and receive large awards. As the defense bar has evolved, courts have generally resisted this approach. This is particularly true in federal courts, where judges regularly dismiss claims based on lack of evidence.
This is why an accurate assessment of each potential defendant is essential for a successful asbestos litigation defense. This includes assessing the duration and nature of the exposure as well as the severity of any diagnosed disease. 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 defends asbestos-related litigation for product manufacturers suppliers and distributors contractors, employers and property owners. Our lawyers have been National Trial and National Coordination Counsel and are frequently appointed as liaison counsel by courts to manage asbestos dockets.
Asbestos litigation can be complex and expensive. We assist our clients to understand the risks associated with this type of litigation. We assist them in establishing internal programs to detect potential safety and liability issues. Contact us today to learn more about how our firm can safeguard your company's interests.