What's The Ugly Reality About Asbestos Litigation Defense

Asbestos Litigation Defense

Cetrulo LLP is widely recognized as an industry leader in asbestos litigation defense. The attorneys of the Firm are regularly invited to give presentations at national conferences. They are also knowledgeable on the numerous issues that arise in defending asbestos cases.

Research has proved that exposure to asbestos litigation online causes lung damage and disease. This includes mesothelioma, and less serious diseases like asbestosis and pleural plaques.

Statute of limitations

In most personal injury cases there is a statute that limits the time frame within which a victim may file a claim. In asbestos cases, statutes of limitations differ by state. They are also different from other personal injury claims since asbestos-related illnesses may take years to manifest.

Due to the delaying nature of mesothelioma and other asbestos-related diseases the statute of limitation clock begins at the date of diagnosis (or death, in the case of wrongful deaths) instead of the time of exposure. This discovery rule is the reason that victims and their families should seek out as soon as they can with an experienced New York asbestos lawyer.

There are a myriad of factors to consider when filing an asbestos lawsuit. One of the most important is the statute of limitations. This is the deadline that the victim must submit the lawsuit by, and failing to do so could result in the case being closed. The statute of limitations varies by 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 illness.

In asbestos cases, the defendants will often try to use the statute of limitations to defend against liability. They could argue, for example, that the plaintiffs should have known or had knowledge of their asbestos exposure and had the obligation of notifying their employer. This is a common argument in mesothelioma cases and it can be difficult for Asbestos litigation defense the plaintiff to prove.

A defendant in an asbestos case may be able to claim that they did not have the resources or the means to warn people about the dangers of the product. This is a complex argument and largely depends on the evidence available. For instance, it has been successfully presented in California that defendants did not possess "state-of-the-art" knowledge and thus could not be expected to give adequate warnings.

Generally speaking, it is preferential to start the asbestos lawsuit in the state where the victim's home. However, there are situations in which it might be appropriate to file the lawsuit in a different state. It usually has to do with the location of the employer, or the location where the employee was exposed to asbestos class action litigation.

Bare Metal

The bare-metal defense is a strategy that equipment manufacturers employ in asbestos litigation. It argues that since their products were manufactured as bare metal, they had no obligation to warn about the dangers of asbestos-containing products that were added by other parties at a later time, Asbestos Litigation Defense such as thermal insulation and flange gaskets. This defense has been accepted in some jurisdictions, but it is not a federally-approved option in all states.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries has reshaped the law. The Court has ruled against the manufacturers' preferred bright line rule and instead, an entirely new standard that states that manufacturers are required to inform consumers if they know that its product will be hazardous for the purpose it was designed for and has no reason to believe that its final customers will be aware of the risk.

While this change in law may make it harder for plaintiffs to win claims against equipment manufacturers, it is not the end of the story. The DeVries decision is not applicable to state-law claims that are based on strict liability or negligence and not brought under federal maritime law statutes like the Jones Act.

Plaintiffs will continue to pursue a wider understanding 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 if the state recognizes this defense. The plaintiff who died in the case worked as a carpenter and was exposed to switchgear and turbines at the Texaco refinery that contained asbestos-containing components.

In the same case in Tennessee, an Tennessee judge has indicated that he will adopt the third perspective of the defense of bare metal. In that case, the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed with mesothelioma. He had worked on equipment that was repaired or replaced by third-party contractors, which included Equipment Defendants. The judge in the case decided that bare-metal defenses can be applied to cases similar to this. The Supreme Court's DeVries decision will affect the way judges apply the bare metal defense in other situations.

Defendants' Experts

Asbestos litigation is a complex affair and requires lawyers with deep medical and legal knowledge and access to top experts. EWH attorneys have decades of experience in asbestos litigation, which includes investigating claims, preparing strategies for managing litigation, including budgets, Asbestos Litigation Defense identifying and bringing in experts and defending plaintiffs as well as defendants in expert testimony at depositions and trials.

Typically asbestos litigation paralegal cases require the testimony of medical professionals like a radiologist and pathologist who can testify regarding X-rays or CT scans that reveal scarring of lung tissue typical of asbestos exposure. A pulmonologist may also provide evidence of symptoms, such as difficulty breathing and coughing, which are similar to those experienced by mesothelioma or other asbestos-related diseases. Experts can also provide an extensive history of the work done by the plaintiff, which includes a review of employment, union, tax, and social security documents.

A forensic engineering or environmental scientist may be required to explain the cause of the asbestos exposure. These experts can help the defendants argue that the asbestos exposure was not in the workplace, but brought into the home through the clothing of workers or air outside.

Many plaintiffs' lawyers will bring in economic loss experts to assess the financial loss suffered by the victims. These experts can calculate how much money a victim has lost due to illness and the effect it has had on their life. They can also testify on expenses such as medical bills and the cost of hiring someone else to complete household chores a person is no longer able to 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 other asbestos claims. If they repeat their testimony, these experts may lose credibility with jurors.

Defendants in asbestos cases can also request summary judgment if they demonstrate that the evidence does not establish that the plaintiff was injured caused by their exposure to the defendant's product. A judge will not grant summary judgement just because a defendant has pointed out holes in the plaintiff's proof.

Trial

The issues of latency in asbestos cases means that significant information can be almost impossible. The time between exposure and the onset of disease can be measured in years. To establish the facts on which to base an argument, it is necessary to examine an individual's employment history. This includes a thorough analysis of the individual's tax, social security, union and financial documents, in addition to interviews with family members and colleagues.

Asbestos patients often develop less serious diseases like asbestosis prior to a mesothelioma diagnose. Due to this the capacity of a defendant to show that the plaintiff's symptoms could be due to another disease that is not mesothelioma-related is crucial in settlement negotiations.

In the past, certain lawyers employed this strategy to deny responsibility and get large awards. As the defense bar grew, courts have generally resisted this method. This is especially true in the federal courts where judges have often dismissed claims based on lack of evidence.

This is why an accurate assessment of every potential defendant is crucial to an effective asbestos defense. This includes assessing the length and the nature of the exposure as well as the degree of any diagnosed illness. For instance, a woodworker who has mesothelioma is likely to receive higher damages than someone who only has asbestosis.

The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation for product manufacturers distributors and suppliers, contractors, employers, and property owners. Our lawyers have extensive experience as National Trial and National Coordinating Counsel. They are frequently appointed by the courts as liaison counsel to manage the prosecution of asbestos dockets.

Asbestos litigation can be a bit complicated and costly. We help our clients understand the risks involved in this type of litigation. We collaborate with them to develop internal programs that will identify potential liability and safety concerns. Contact us today to learn more about how our firm can protect your company's interests.