The Most Profound Problems In Asbestos Litigation Defense

Asbestos Litigation Defense

Cetrulo LLP is widely recognized as a leader in asbestos litigation defense. The attorneys of the Firm regularly participate in national conferences and are well-versed in the myriad issues that arise in defending asbestos cases, including jurisdictional Case Management Orders and expert selection.

Research has proved that asbestos exposure can cause lung damage and diseases. This includes mesothelioma as well as less serious diseases like asbestosis and pleural plaques.

Statute of limitations

In the majority of personal injury claims statutes limit the time period after which a victim may file an action. In asbestos cases, the statute of limitations differs by state. They are also different from other personal injury claims as asbestos-related illnesses can take a long time to manifest.

Due to the delayed nature mesothelioma as well as other asbestos-related diseases the statute of limitations clock starts on the date of diagnosis, or death in wrongful death cases 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 myriad of aspects to consider when making an asbestos lawsuit. One of the most important is the statute of limitations. This is the date which the victim must submit the lawsuit by, and failing to file a lawsuit by the deadline could result in the case being barred. The statute of limitations differs from state to state and the laws vary greatly. However, the majority allow between one and six year after the date of diagnosis.

In asbestos cases, the defendants will often try to use the statute of limitations as a defense against liability. For instance, they might argue that the plaintiffs were aware or should have been aware of their exposure and therefore had a duty to notify their employer. This is a common defense in mesothelioma lawsuits. It can be difficult to prove for the victim.

Another potential defense in an asbestos case is that the defendants did not have the resources or means to warn of the dangers associated with the product. This is a complex argument that is largely based on the evidence available. For example, it has been successfully made in California that defendants did not possess "state-of-the-art" knowledge and thus could not be expected to give adequate warnings.

Generally, it is best to file the asbestos lawsuit within the state where the victim's home. In certain circumstances, it may make sense to make a claim in a different state than the victim's. This usually has something to be related to where the employer is located or where the worker was first exposed to asbestos.

Bare Metal

The"bare-metal" defense is a method that equipment manufacturers employ in asbestos litigation. It states that since their products were manufactured as bare metal, they had no obligation to warn consumers about the dangers of asbestos-containing materials added by other parties at a later date, such as thermal insulation and flange gaskets. This defense is a common one in some jurisdictions but not all.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the law. The Court did not accept the preferred rule of manufacturers' bright line rule and instead, an entirely new standard that states that manufacturers have a responsibility to warn if it knows that its product will be harmful for its intended use and does not have any reason to believe that the end customers will be aware of the risk.

This modification in law makes it more difficult for plaintiffs to file claims against manufacturers of equipment. However this isn't the end of the road. The DeVries decision does not apply to state-law claims that are based on strict liability or negligence, and therefore not brought under federal maritime law statutes, such as the Jones Act.

Plaintiffs will continue pursuing an expanded interpretation of the defense of bare-metal. In the Asbestos Multi-District Litigation in Philadelphia for instance the case was remanded back to an Illinois federal judge to determine whether that state recognizes this defense. The plaintiff who died in this instance was a carpenter who had been exposed to switchgear, turbines and other asbestos-containing equipment at an Texaco refinery.

In a similar case in Tennessee, an Tennessee judge has indicated that he is likely to take the third approach to the defense of bare metal. The plaintiff in the case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma after working on equipment that was repaired or replaced by contractors of third party which included the Equipment Defendants. The judge in that case ruled that the bare metal defense is applicable to cases like this. The Supreme Court's DeVries decision will impact how judges use the bare-metal defense in other contexts.

Defendants' Experts

Asbestos lawsuits are complex and require skilled attorneys with a deep understanding of medical and legal issues and access to expert witnesses of the highest caliber. EWH attorneys have decades of experience in asbestos litigation, including investigating claims, creating litigation management plans and strategic budgets, identifying and bringing in experts, and defending plaintiffs and defendants expert testimony at trials and depositions.

Typically asbestos cases require testimony of medical professionals like pathologists and radiologists who can testify regarding X-rays or CT scans that show scarring of lung tissue 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 provide a detailed account of the plaintiff's work background, including an examination of his or her tax social security and union records as well as job and employment details.

It could be necessary to consult an engineer who is forensic or an environmental scientist to determine the source of exposure to asbestos. These experts can help defendants argue that the alleged asbestos was not exposed in the workplace and was instead brought home on workers' clothing or in the air outside (a common defense in mesothelioma cases).

A lot of plaintiffs' lawyers employ experts in economic loss to assess the financial losses suffered by the victims. These experts can calculate the amount of money that a victim suffered due to their illness and the impact it had on their daily life. They can also testify on expenses such as medical bills and the cost of hiring someone else to complete household chores a person cannot do.

It is crucial for defendants to challenge expert witnesses of the plaintiff, especially in cases where they have been called to testify in dozens or hundreds of asbestos-related cases. Experts may lose credibility before jurors when their testimony is repeated.

Plaintiffs in asbestos cases may also request summary judgment if they can demonstrate that the evidence does not show that the plaintiff suffered injuries from exposure to the defendant's product. A judge is not likely to give summary judgment just because a defendant has pointed out holes in the plaintiff's proof.

Going to Trial

The latency issues involved in asbestos cases mean that getting significant information can be almost impossible. The time between exposure and the onset of disease can be measured in years. To determine the facts upon which to build an argument, it is necessary to examine an individual's employment history. This often involves a thorough analysis of social security, union, tax, and financial records as in interviews with co-workers and family members.

Asbestos-related victims are often diagnosed with less serious diseases like asbestosis before a mesothelioma diagnosis. Due to this, the ability of a defendant to show that the plaintiff's symptoms could be caused by a different disease other than mesothelioma can be beneficial in settlement negotiations.

In the past, certain lawyers have employed this method to deny responsibility and get large amounts of money. As the defense bar evolved, courts have generally resisted this method. This is particularly true in the federal courts where judges have frequently dismissed claims based on lack of evidence.

An in-depth analysis of each potential defendant is therefore essential to ensure a successful defense in asbestos litigation. This includes assessing the length and extent of exposure, as and the degree of any diagnosed illness. For example carpenters with mesothelioma is likely to be awarded a higher amount of damages than one who has only suffered from asbestosis.

The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation on behalf of manufacturers, distributors and suppliers contractors, employers and property owners. Our attorneys have served as National Trial and National Coordination Counsel and are frequently appointed as liaison counsel by courts in order to manage asbestos dockets.

Asbestos litigation can be complicated and costly.  asbestos defense litigation  assist our clients in understanding the risks associated with this type of litigation and collaborate with them to develop internal programs that will identify potential safety and liability concerns. Contact us today to learn more about how we can safeguard your company's interests.