Asbestos Litigation Defense
Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The firm's lawyers regularly participate in national conferences and are proficient in the many issues that arise in asbestos litigation that include jurisdictional Case Management Orders and expert selection.
Research has shown that asbestos exposure can cause lung damage and cause lung disease. This includes mesothelioma as well as lesser diseases like asbestosis and plaques in the pleural cavity.
Pharr asbestos lawyers of Limitations
In most personal injury cases, a statute of limitations sets a deadline for how long after an accident or injury the victim is allowed to bring an action. In asbestos cases, the statutes of limitations vary by state. They also differ from other personal injury claims since asbestos-related illnesses may take years to develop.
Due to the delay in the development of mesothelioma and asbestos-related diseases the statute of limitations begins at the time of diagnosis (or death, in the case of wrongful deaths) instead of the date of exposure. This discovery rule is the reason victims and their families should consult an experienced New York mesothelioma lawyer as soon as they can.
There are a variety of factors to consider when filing an asbestos lawsuit. One of the most important is the statute of limitations. This is the date that the victim must submit the lawsuit by, and failure to file a lawsuit by the deadline could cause the case to be dismissed. The statute of limitations differs according to state, and the laws vary greatly however, most states allow between one and six years from the time the victim was diagnosed with an asbestos-related disease.
During an asbestos case when the defendants often try to use the statute of limitations as a defense against liability. For example, they may claim that the plaintiffs knew or should have known about their exposure, and therefore were required to inform their employer. This is a common defense in mesothelioma lawsuits, and is difficult to prove for the victim.
Another defense that could be used in an asbestos case is that the defendants did not have the resources or means to warn of the dangers posed by the product. This is a difficult case and relies on the evidence available. In California, for example it was claimed that defendants were not equipped with "state-ofthe-art" information and could not be expected provide adequate warnings.
In general, it's better to file an asbestos lawsuit in the state in which the victim lives. However, there are some circumstances in which it might be beneficial to file the lawsuit in another state. It usually has to do with be related to the location of the employer or where the worker was first exposed to asbestos.
Bare Metal
The"bare metal" defense is a standard strategy used by manufacturers of equipment in asbestos litigation. It argues that since their products left the factory as raw metal, they were under no obligation to warn of the risks of asbestos-containing substances that were added by other parties at a later date like thermal insulation and gaskets for flanges. This defense has been accepted in some jurisdictions, but it is not a federally-approved option in all states.
The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries has altered the law. The Court rejected the bright-line rule that manufacturers prefer and instead formulated a standard that requires the manufacturer to notify customers if they know that their product is hazardous for its intended use and there is no reason to believe that the users who purchase the product will be aware of the risk.
This change in law will make it more difficult for plaintiffs to file claims against manufacturers of equipment. However, this is not the end of the road. The DeVries decision does not apply to state-law claims which are based on strict liability, or negligence, and therefore not brought under federal maritime law statutes like the Jones Act.
Plaintiffs will continue pursuing a broader interpretation of the defense of bare metal. For example, in the Asbestos MDL in Philadelphia, a case has been remanded to an Illinois federal court to decide whether the state of Illinois recognizes the defense. The plaintiff who died in this case was a carpenter who was exposed to turbines, switchgear and other asbestos-containing components at a Texaco refinery.
In a similar instance, a judge in Tennessee has signaled that he is likely to adopt a third 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 was employed 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 decision in DeVries will have an impact on how judges will apply the bare-metal defense in other situations like those that involve tort claims under state law.
Defendants' Experts
Asbestos litigation is complex and require experienced lawyers with a deep understanding of medical and legal issues and access to top experts. The attorneys at EWH have years of experience helping clients in a variety of asbestos litigation issues, including analyzing claims, preparing strategic budgets and plans for managing litigation, hiring and retaining experts and defending defendants' and plaintiffs expert testimony during depositions and in court.
Typically, asbestos cases require the testimony of medical professionals like a radiologist and pathologist who can testify about X-rays or CT scans that reveal the lung tissue being damaged that is typical of asbestos exposure. A pulmonologist can be able to testify about symptoms, like breathing difficulties, which are similar to mesothelioma and other asbestos-related illnesses. Experts can also provide an extensive history of the work done by the plaintiff, such as a review of employment, union, tax, and social security documents.
A forensic engineering or environmental science expert could be required to explain the cause of the asbestos exposure. These experts can help defense attorneys argue that the asbestos exposure did not occur at the workplace, but brought home by workers' clothing or the outside air.
Many attorneys representing plaintiffs hire economic loss experts to determine the monetary loss suffered by victims. They can estimate the amount of money that a victim lost as a result of their illness and its effect on their lifestyle. They can also testify about expenses such as medical bills and the cost of hiring someone to do household chores a person is no longer able to perform.
It is important that defendants challenge plaintiffs' expert witnesses, particularly if they have testified on hundreds or dozens of asbestos claims. If they repeat their testimony, the experts could lose credibility with jurors.
In asbestos cases, defendants can also request summary judgment in cases where they can demonstrate that the evidence does NOT prove that the plaintiff was injured by exposure to the products of the defendant. A judge will not grant summary judgement just because a defendant has pointed out gaps in the plaintiff’s proof.
Trial
The delays involved in asbestos cases mean that getting significant information can be almost impossible. The time between exposure and the development of disease can be measured in years. As such, establishing the facts on which to make a case will require a thorough examination of a person's entire employment history. This often involves a thorough review of social security, union, tax, and financial records as along with interviews with coworkers and family members.
Asbestos patients often develop less serious diseases like asbestosis prior to diagnosis of mesothelioma. Because of this, the ability of a defendant to prove that a plaintiff's symptoms are caused by another disease than mesothelioma could be of significant value in settlement negotiations.
In the past, some attorneys have used this strategy to deny liability and get large sums. However, as the defense bar has evolved and diversified, this strategy has been largely rejected by the courts. This is particularly true for federal courts, where judges regularly dismiss such claims due to the absence of evidence.
Because of this, a careful evaluation of every potential defendant is crucial to an effective asbestos litigation defense. This includes assessing the length and nature of the exposure as and the degree of any diagnosed illness. For instance carpenters with mesothelioma is likely to be awarded a higher amount of damages than a person who has only had asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related lawsuits for manufacturers, suppliers and distributors, contractors, employers, and property owners. Our attorneys have extensive experience serving as National Trial and National Coordinating Counsel, and are regularly appointed by the courts as liaison counsel to handle the prosecution of asbestos dockets.
Asbestos litigation can be complex and costly. We help our clients understand the risks involved in this type of litigation, and we assist them to develop internal programs that can identify safety and liability concerns. Contact us today to learn more about how our firm can safeguard your company's interests.