Asbestos Litigation Defense: The Good, The Bad, And The Ugly

Asbestos Litigation Defense

Protecting companies from asbestos litigation requires a thorough examination of the plaintiff's employment history as well as medical records and evidence. We often employ the bare metal defense which is focused on proving that your company was not able to manufacture, sell or distribute the asbestos-containing products at issue in the case of a claimant.

Asbestos cases are distinct and require a tenacious approach to achieving successful results. We are local counsel, regional and national.

Statute of limitations

Most lawsuits must be filed within a specific time frame, also known as the statute of limitations. In asbestos cases, the deadline for filing an action is between one and 6 years after a victim is diagnosed with an asbestos-related condition. For the defense it is essential to prove that the claimed accident or death did not occur prior to the deadline. Often, this requires reviewing the entirety of the plaintiff's work background, including interviews with former colleagues and the careful examination of Social Security, union, tax and other documents.

In defending asbestos cases, there are various complex issues. Asbestos-related victims can develop a less severe disease, such as asbestosis, before they are diagnosed with a fatal illness such as mesothelioma. In these cases, the defense attorney will argue that the limitation period should start when the victim realized or should have reasonably known that asbestos exposure caused their illness.

These cases are made more complex because the statute of limitations can differ from state to state. In these instances, a seasoned mesothelioma lawyer may try to file the case in a state where the majority of the exposure is believed to have taken place. This is a difficult task, as asbestos victims often move around the country to find work, and the exposure could have occurred in several states.

In addition, the process of discovery is difficult in asbestos litigation. Unlike other personal injury cases, which usually have only a handful of defendants, asbestos-related litigation usually includes dozens or more defendants. It can be difficult to get significant discovery when there are many defendants and the plaintiff's claim extends over a long period of time.

The McGivney, Kluger, Clark & Intoccia team has extensive experience serving as National Coordinating Counsel in multi-district and multi-jurisdictional asbestos litigation. We collaborate closely with regional and local counsel to develop a strategy for litigation, manage local counsel and get consistent, cost-effective results in line with the goals of the client. We regularly appear before coordinating and trial judge, as also litigation masters across the country.

Bare Metal Defense

In the past, producers of turbines, boilers, valves and pumps have protected themselves against asbestos lawsuits by asserting the "bare metal" doctrine or component part doctrine. This defense states that a manufacturer can't be held responsible for asbestos-related injuries caused by replacement components that the company did not design or install.

In the case Devries v. Tennessee Eastman Chemical, an Tennessee Eastman Chemical plant employee was suing several equipment manufacturers for his mesothelioma. Plaintiff's job entailed the removal and replacement of insulation, steam traps and gaskets on equipment such as pumps, valves and steam traps (Equipment defendants). He claimed he was exposed to asbestos while working at the plant, and was diagnosed with mesothelioma several years later.

The Supreme Court's decision in Devries has altered the face of asbestos litigation. It could impact the way courts in other jurisdictions deal with the issue of liability for third-party components added to equipment by manufacturers. The Court declared that the application of the bare metal defense is "cabined" in maritime law but left open the possibility that other federal circuits to apply this doctrine to cases that aren't maritime.

This was the first time that a federal appellate court ruled on the bare-metal defense in a case involving asbestos and it's a significant departure for traditional law regarding product liability. The majority of courts have understood "bare metal" as a denial of the responsibility of a manufacturer to warn about the potential harms caused by replacement parts it did't manufacture or sale.

The McGivney, Kluger, Clark & Intoccia Team is regularly serving as National Coordinating Counsel in multi-jurisdictional asbestos lawsuits that impact the entire industry. We assist our clients to develop litigation strategies, manage local and regional counsel and provide a consistent, cost-effective defence in accordance with their goals. Our attorneys also present at industry conferences on important issues that influence asbestos litigation. Our firm has experience in defending clients across the 50 states and working closely with trial courts, coordinating judges and special masters of litigation. Our unique strategy has proven effective in decreasing our clients' risk and legal costs.

Expert Witnesses

An expert witness is someone who has specific skills, experience or knowledge and offers independent assistance to the court in the form of an objective opinion regarding matters within his field of expertise. He should be able to clearly express his opinions and the facts or assumptions he's basing it on. He should not ignore any factors that could influence his conclusions.

In cases where asbestos exposure is claimed medical experts could be required to help evaluate the claimant's condition and to determine any causal link between the condition and the source of exposure. Many of the diseases that are caused by asbestos are complicated and require the expertise of experts. This can include nurses and doctors, pharmacists, toxicologists or occupational health specialists, epidemiologists and pharmacists.

Experts are there to offer unbiased technical assistance, regardless of whether they are representing the defense or the prosecution. He should not assume the position as an advocate or seek to influence or convince a jury to support his client. He should not attempt to convince jurors or promote an argument.

The expert should cooperate with the other experts in trying to narrow any technical issues at an early stage and eliminate any irrelevant matters. The expert should also collaborate with the people who instruct him to determine areas of agreement and disagreement in the joint statement of the expert as ordered by the court.

The expert must at the conclusion of his examination, present his conclusions as well as the reasons behind them in a manner that is easy to understand and clear. He should be prepared to answer questions posed by the judge or the prosecution, and be able to address all points raised during cross-examination.

Cetrulo LLP is well versed in protecting clients in multi-jurisdictional, multi-party asbestos litigation. Our attorneys can assist and advise regional and national defense counsel, as in addition to local regional, expert witnesses and experts. Our team is regularly in front of coordinating judges in asbestos litigation across the country as well as trial judges and special Masters.

Medical Experts

Expert witnesses are crucial in cases which involve asbestos-related injuries due the time lag between exposure to asbestos and the beginning symptoms. Asbestos cases usually involve complicated theories of injuries that stretch for decades and involve hundreds or dozens of defendants. This is why it is nearly impossible for a plaintiff to prove their case without the help of experts.

Medical and other experts in the field are required to determine the extent of a person's exposure, assess their medical conditions and provide information about the possibility of future health issues. Experts like these are essential in any case and should be thoroughly vetted and knowledgeable about the field of study. The more experience the medical or scientific expert has the more convincing they will be.

In a majority of asbestos cases, an expert in medicine or a scientist is required to examine the records of the claimant and conduct a physical exam. Experts can verify whether asbestos defense litigation exposure caused a specific medical condition, like mesothelioma or lung cancer.

It could be necessary to seek out other experts, asbestos litigation defense such as industrial hygienists to determine if there is asbestos exposure levels. They can use sophisticated analytical and sampling techniques to compare airborne asbestos levels in a home or workplace with the standards for exposure that are legally required.

These experts can be extremely useful in defending companies that produced or distributed asbestos litigation meaning-related products as they can often be able of proving that the exposure levels of plaintiffs were below legal limits and that there was no evidence of negligence by the employer or manufacturer responsibility.

Other experts that could be involved in these instances are environmental and occupational specialists. They can provide insights into the safety protocols that are in place at a specific work site or company, and how they relate to the liability of asbestos manufacturers. For example, these experts can determine that materials used in renovation that are disturbed during a remodel are more likely to contain asbestos, or that shaking out contaminated clothing can cause latest asbestos litigation fibers to release and become inhaled.