Asbestos Litigation Defense
Cetrulo LLP has been widely recognized as a leader in asbestos litigation. The firm's lawyers are frequently invited to present at national conferences. They are also knowledgeable on the many issues that arise in defending asbestos cases.
Research has shown that exposure to asbestos causes lung damage and diseases. This includes mesothelioma, other lesser illnesses like asbestosis and plaques in the pleural region.
Statute of limitations
In the majority of personal injury cases, a statute of limitation sets a deadline for the time after an injury or accident, the victim can bring an action. In asbestos cases, the statute of limitations differs by state. They also differ from other personal injury claims as asbestos-related illnesses can take years to be apparent.
Due to the delayed nature mesothelioma and other asbestos-related diseases the statute of limitations begins at the time of diagnosis, or death in wrongful death cases, rather than the date exposure. This discovery rule is the reason victims and their families must consult an experienced New York mesothelioma lawyer as soon as possible.
There are a variety of factors to consider when filing an asbestos lawsuit. The statute of limitations is among the most crucial. The statute of limitations is the deadline that the victim has to make a claim. Failure to do so will result in the case being barred. The time limit for filing a lawsuit varies in each state, and laws differ greatly however, most states allow between one and six years from when the victim was diagnosed with an asbestos-related disease.
In an asbestos case, defendants often make use of the statute of limitations as a defense to liability. For example, they may argue that the plaintiffs knew or should have been aware of their exposure and thus had a duty to notify their employer. This is an argument that is common in mesothelioma litigation and it isn't easy for the victim to prove.
Another possible defense in a asbestos case is that the defendants didn't have the resources or the means to warn of the dangers associated with the product. This is a complicated argument that is largely based on the evidence that is available. In California for instance it was argued that the defendants lacked "state-ofthe-art" information and therefore could not to provide sufficient warnings.
Generally, it is best to file the asbestos lawsuit within the state where the victim's home. In certain circumstances it may be appropriate to make a claim in a different state from the victim's. It usually has to do with relate to the location of the employer or where the person was first exposed to asbestos.
Bare Metal
The defense of bare metal is a standard strategy used by equipment manufacturers in asbestos litigation. It asserts that because their products left the factory as unfinished metal, they had no duty to warn of the risks of asbestos-containing substances added by other parties at a later time, such as thermal insulation and flange gaskets. Birmingham asbestos attorneys 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 manufacturers' preferred bright-line rule and instead created a standard that requires a manufacturer to warn when they are aware that their product is dangerous for its intended purpose and have no reason to believe that users will be aware of this risk.
This change in law makes it more difficult for plaintiffs to bring claims against manufacturers of equipment. However, this is not the end. The DeVries decision does not apply to state-law claims based on strict liability or negligence and not brought under federal maritime law statutes, such as the Jones Act.
Plaintiffs will continue to seek a more expansive reading 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 plaintiff who died in this case was a carpenter who was exposed to turbines, switchgear and other asbestos-containing equipment at the Texaco refinery.
In the same case in Tennessee, a Tennessee judge has indicated that he is likely to adopt the third view of 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 that case ruled that the bare metal defense applies to cases such as this. The Supreme Court's decision in DeVries will have an impact on how judges use the bare metal defense in other contexts, such as those involving tort claims under state law.
Defendants' Experts
Asbestos lawsuits are complicated and require skilled attorneys who have a thorough knowledge of both legal and medical issues and access to top experts. The attorneys at EWH have years of experience in assisting clients with a variety of asbestos litigation cases, such as investigating claims, preparing strategic budgets and litigation management plans in hiring and retaining experts and defense of defendants and plaintiffs' expert testimony during deposition and at trial.
Typically, asbestos cases will require the testimony of medical professionals like a radiologist or pathologist. They can confirm that X-rays as well as CT scans show the typical lung tissue scarring caused by asbestos exposure. A pulmonologist may be able to testify about symptoms, like breathing difficulties, which are similar to mesothelioma as well as other asbestos-related diseases. Experts can also provide detailed history of work performed by the plaintiff, including an examination of the worker's union tax, social security records.
A forensic engineer or environmental scientist may be required to clarify the source of the asbestos exposure. Experts in these fields can assist defendants argue that the alleged asbestos was not exposed at the workplace and instead was ingested on the clothing of workers or from the outside air (a common defense in mesothelioma cases).
Many of the plaintiffs' lawyers will bring in economic loss experts to determine the financial loss suffered by the victims. They can determine the amount of money a person has lost due to their illness and the impact it has had on their life. They can also testify on expenses like medical bills and the price of hiring someone to perform household chores that the person is unable to do anymore.
It is crucial that defendants challenge the plaintiffs' expert witnesses, particularly if they have testified on hundreds or even hundreds of other asbestos claims. If they repeat their testimony, these experts may lose credibility with jurors.
In asbestos cases, defendants may also seek summary judgement in cases where they can demonstrate that the evidence doesn't show that the plaintiff was injured due to exposure to the defendant's products. However, a judge will not accept summary judgment simply because the defendant cites weaknesses in the plaintiff's evidence.
Trial
The delays involved in asbestos cases means that significant information can be almost impossible. The time between exposure and the onset of disease can be measured by decades. Thus, establishing the facts that will make a case requires a thorough review of a person's entire employment history. This usually involves an exhaustive review of social security, union, tax and financial records as in interviews with co-workers and family members.
Asbestos patients often develop less serious illnesses such as asbestosis prior to the diagnosis of mesothelioma. Due to this, the ability of a defendant to prove that the plaintiff's symptoms could be due to a different illness that is not mesothelioma-related is crucial in settlement negotiations.
In the past, certain attorneys have employed this strategy to deny liability and obtain large amounts of money. However as the defense bar has developed the strategy has been generally rejected by the courts. This is particularly true for federal courts, where judges routinely reject such claims due to the absence of evidence.
A thorough evaluation of each potential defendant is therefore essential for a successful defense in asbestos litigation. This includes assessing the length and extent of exposure, as and the severity of any diagnosed disease. For example carpenters with mesothelioma may be awarded higher damages than one who has only had asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation on behalf of manufacturers, distributors and suppliers, contractors, employers, and property owners. Our lawyers have been National Trial and National Coordination Counsel and are regularly appointed as liaison counsel by courts to handle asbestos dockets.
Asbestos litigation can be complex and expensive. We help our clients to be aware of the risks associated with this kind of litigation and we assist them to create internal programs that will proactively identify safety and liability concerns. Contact us today to find out more about how our firm can protect your business's interests.