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Asbestos Litigation Defense

Cetrulo LLP has been widely recognized as a leader in asbestos attorney litigation. The Firm's attorneys are regularly invited to give presentations at national conferences. They are also well-versed on the many issues that arise when trying to defend asbestos cases.

Research has demonstrated that exposure to asbestos can lead to lung diseases and damage. This includes mesothelioma as and lesser diseases such as asbestosis and plaques in the pleural region.

Statute of limitations

In the majority of personal injury claims, a statute limits the time period after which a victim can file an action. In the case of asbestos, the statute of limitations is different by state and is different from in other personal injury claims due to the fact that asbestos-related diseases can take years to show up.

Due to the delaying nature of mesothelioma as well as other asbestos-related illnesses and other asbestos-related illnesses, the statute of limitations begins on the date of diagnosis or death in wrongful death claims instead of the date of exposure. This discovery rule is the reason why victims and their families should seek out as soon as they can with an experienced New York asbestos lawyer.

When you file a asbestos lawsuit, there are many aspects that must be considered. The statute of limitations is among the most crucial. This is the date that the victim has to file the lawsuit by, and failure to file the lawsuit could result in the case being closed. The time limit for filing a lawsuit varies in each state, and laws vary greatly however, most states allow between one and six years from the date the victim was diagnosed with an asbestos-related disease.

In asbestos cases, the defendants will often try to use the statute of limitations as a defense against liability. They might argue for instance that plaintiffs should have been aware or knew about their exposure to asbestos and were under an obligation to notify their employer. This is an often used argument in mesothelioma litigation, and it can be difficult for the plaintiff to prove.

A defendant in an asbestos case could also argue that they did not have the resources or means to inform people about the dangers of the product. This is a complex argument and largely depends on the evidence available. In California, for example, it was successfully 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 start an asbestos lawsuit in the state where the victim lives. However, there are circumstances where it may make sense to file the lawsuit in an alternative state. This is usually to do with where the employer is located or where the person was first exposed to asbestos.

Bare Metal

The defense of bare metal is a tactic that equipment manufacturers employ 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 materials added by other parties at a later time for example, thermal insulation and flange gaskets. This defense has been accepted in some areas, but it is not permitted under federal law in all states.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries has altered the law. The Court has rejected the bright-line rule of manufacturers and instead formulated a standard that requires a manufacturer to warn when they are aware that their product is dangerous for its intended purpose and there is no reason to believe that the users who purchase the product will realize this danger.

While this change in law may make it harder for plaintiffs to win claims against manufacturers of equipment, it's not the end of the tale. First it is that the DeVries decision is not applicable to state-law claims that are made on the basis of negligence or strict liability and are not covered by federal maritime law statutes, like the Jones Act or the Maritime Claims Act.

Plaintiffs will continue to pursue an expanded interpretation of the defense of bare metal. In the Asbestos Multi-District Litigation in Philadelphia, for example, 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 carpenter who was exposed to switchgear, turbines and other asbestos-containing parts at the Texaco refining facility.

In a similar case, a judge in Tennessee has stated that he is likely to take a different view of the defense of bare metal. In the 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, including Equipment Defendants. The judge in that case held that the bare-metal defense is applicable 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 situations like those that involve state law tort claims.

Defendants' Experts

Asbestos lawsuits are complicated and require skilled attorneys with a deep understanding of medical and legal issues as well as access to top experts. Attorneys at EWH have years of experience assisting clients in a variety of asbestos litigation issues, including analyzing claims, preparing strategic budgets and litigation management strategies in hiring and retaining experts and defending defendants' and plaintiffs expert testimony during deposition and at trial.

Typically asbestos cases require testimony of medical professionals such as a radiologist and pathologist who testify on X-rays or CT scans that show scarring of the lung tissue typical of asbestos exposure. A pulmonologist may also testify regarding symptoms, such as breathing problems, which are similar to mesothelioma as well as other asbestos-related illnesses. Experts can also provide full details of the work performed by the plaintiff, such as an examination of the worker's union tax, social security documents.

An forensic engineering or environmental science expert could be required to explain the reason for the asbestos exposure. These experts can help defendants to argue that asbestos exposure was not at the workplace, but brought to the home through clothing worn by workers or the outside air.

Many of the plaintiffs lawyers will bring experts from the field to establish the monetary losses incurred by the victims. They will be able to calculate the amount of money that a victim has lost due to their illness and its impact on their daily life. They can also testify on expenses like medical bills as well as the cost of hiring a person to take care of household chores that one cannot perform anymore.

It is important that defendants challenge the plaintiffs expert witnesses, especially in the event that they have testified on dozens or hundreds of asbestos claims. Experts may lose credibility before jurors if their testimony is repeated.

In asbestos cases, defendants may also seek summary judgement if they can show that the evidence does NOT show that the plaintiff was injured by exposure to the defendant's products. However the judge will not give summary judgment merely because the defendant points to holes in the plaintiff's proof.

Going to Trial

Due to the latency issues that are prevalent in asbestos attorneys cases, it is difficult to make a meaningful discovery. The lag between exposure and the onset of the disease could be measured in years. As such, establishing the facts that will make a case requires a thorough review of a person's entire employment history. This typically involves a thorough review of social security and tax records, union, and financial records, as in interviews with co-workers and family members.

Asbestos sufferers are more likely to develop less serious illnesses like asbestosis prior to a mesothelioma diagnosis. Because of this, the ability of a defendant to prove that a plaintiff's symptoms are due to another disease than mesothelioma can have significant importance in settlement negotiations.

In the past, a few lawyers have employed this tactic to deny liability and obtain large awards. However, as the defense bar has developed the strategy has been generally rejected by the courts. This is especially relevant in federal courts, where judges have frequently dismissed claims due to the absence of evidence.

An in-depth analysis of each potential defendant is crucial to ensure a successful defense in asbestos litigation. This includes assessing the length and nature of the exposure as in addition to the degree of any diagnosed illness. For example, a woodworker who is diagnosed with mesothelioma is more likely to suffer more damages than a person who only has asbestosis.

The Bowles Rice Asbestos Litigation Team regularly defends product manufacturers, suppliers, distributors, contractors as well as property owners and employers in asbestos-related litigation. Our lawyers have years of experience 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 complicated and costly. We help our clients be aware of the risks associated with this type of litigation, and we work with them to develop internal programs that are proactive and identify liability and safety concerns. Contact us today to learn more about how our firm can safeguard your company's interests.