Asbestos Litigation Defense
Cetrulo LLP is widely recognized as a leading expert in asbestos litigation defense. Fayetteville asbestos attorney of the Firm regularly participate in national conferences and are proficient in the myriad of issues that arise when defending asbestos cases that include jurisdictional Case Management Orders and expert selection.
Research has proved that asbestos exposure causes lung damage and disease. This includes mesothelioma, as well as lesser diseases like asbestosis and plaques in the pleural cavity.
Statute of Limitations
In the majority of personal injury cases the statute of limitations defines a time frame for the time after an accident or injury the victim can bring an action. In asbestos cases, statutes of limitations differ by state. They are also different from other personal injury claims since asbestos-related illnesses may take a long time to develop.
Due to the delayed nature mesothelioma as well as other asbestos-related illnesses the statute of limitations begins at the time of diagnosis, or death in wrongful death cases instead of the date of exposure. This discovery rule is that victims and their families need to work as soon as they can with a reputable New York asbestos lawyer.
When filing an asbestos lawsuit, there are many things that need to be taken into account. One of the most important is the statute of limitations. The statute of limitations is the time limit at which the victim has to make a claim. Failure to do so will result the case being thrown out. The statute of limitations differs according to state, and the laws differ widely, but most allow for between one and six years from the date the victim was diagnosed with an asbestos-related disease.
In an asbestos case, defendants often use the statute of limitation as a defense to liability. They may say that, for instance, plaintiffs should have been aware or were aware of their asbestos exposure and had a duty of notification to their employer. This is a common argument in mesothelioma lawsuits, and it can be difficult to prove for the victim.
Another possible defense in a asbestos case is that the defendants didn't have the resources or means to warn of the dangers associated with the product. This is a complicated argument that relies on the evidence that is available. In California for instance it was argument that defendants did not have "state-ofthe-art" information and were not able to provide adequate warnings.
In general, it's better to make an asbestos lawsuit in the state in which the victim resides. However, there are circumstances in which it might be beneficial to file the lawsuit in a different state. This is usually to relate to where the employer is located or the place where the employee was first exposed to asbestos.
Bare Metal
The bare-metal defense is a strategy used by equipment manufacturers in asbestos litigation. It asserts that because their products were manufactured as unfinished metal, they had no obligation to warn consumers about the dangers of asbestos-containing materials added by other parties at a later time, such as thermal insulation and gaskets for flanges. This defense is recognized in some jurisdictions, but not all.
The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries has altered the law. The Court rejected manufacturers' preferred bright-line rule and instead established a standard that requires a manufacturer to warn if they know that their integrated product is unsafe for its intended use and have no reason to think that the end users will be aware of this danger.
Although this change in law could make it harder for plaintiffs to bring claims against equipment manufacturers, it is not the end of the tale. First it is that the DeVries decision does not apply to state-law claims 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 a broader interpretation of the defense of bare-metal. For example in the Asbestos MDL in Philadelphia the case has been remanded to an Illinois federal court to decide whether the state of Illinois recognizes the defense. The plaintiff who died in the case was a carpenter, and was exposed to turbines and switchgear at a Texaco refinery that contained asbestos-containing parts.
In a similar case, a judge in Tennessee has indicated that he'll take a different approach to the bare metal defense. The plaintiff in that case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma following working on equipment that was repaired or replaced by contractors from third parties, including the Equipment Defendants. The judge in that case ruled that the bare-metal defense is applicable 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 cases for example, those involving tort claims under state law.
Defendants' Experts
Asbestos lawsuits are complicated and require experienced lawyers with a deep understanding of medical and legal issues and access to top expert witnesses. Attorneys at EWH have years of experience assisting clients in a variety of asbestos litigation matters including investigating claims, preparing strategic budgets and litigation management plans in hiring and retaining experts and defense of defendants and plaintiffs expert testimony during deposition and at trial.
Typically, asbestos cases require the testimony of medical professionals such as pathologists and radiologists who can testify regarding X-rays or CT scans that reveal scarring of lung tissue typical of asbestos exposure. A pulmonologist could also testify on 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, which includes a review of job, union and tax records as well as social security records.
A forensic engineer or environmental science expert may be required to clarify the cause of the asbestos exposure. These experts can help defense attorneys argue that the asbestos exposure was not in the workplace, but was brought into the home through the clothing of workers or by airborne particles.
A lot of plaintiffs' lawyers employ experts in economic loss to calculate the financial losses suffered by the victims. These experts can calculate how much money a victim has lost due to their illness and the impact it affected their life. They can also testify on expenses such as medical bills and the cost of hiring someone to perform household chores a person cannot complete.
It is crucial that plaintiffs challenge defendants experts, particularly in the event that they have testified on dozens or hundreds of asbestos claims. Experts can lose credibility with jurors when their testimony is repeated.
In asbestos cases, defendants may also seek 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. However, a judge will not accept summary judgment simply because the defendant points to gaps in the plaintiff's proof.
Going to Trial
The latency issues involved in asbestos cases mean that obtaining meaningful discovery can be nearly impossible. The time between exposure and the development of the disease can be measured in years. Thus, establishing the facts that will build a case requires a review of a person's entire employment history. This often involves a thorough analysis 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 before a mesothelioma diagnosis. Due to this the capacity of a defendant to show that a plaintiff's symptoms may be caused by a different disease other than mesothelioma can be beneficial in settlement negotiations.
In the past, certain attorneys employed this strategy to deny responsibility and obtain large awards. However as the defense bar has grown and diversified, this strategy is generally rejected by the courts. This is particularly true for federal courts, where judges often dismiss claims based on lack of evidence.
An in-depth analysis of each potential defendant is essential to ensure a successful defense in asbestos litigation. This includes assessing the length and extent of exposure, as in addition to the degree of any diagnosed illness. For example carpenters with mesothelioma will likely be awarded higher damages than a person who has only had 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 extensive experience serving as National Trial and National Coordinating Counsel. They are frequently appointed by courts as liaison counsel to oversee the prosecution of asbestos dockets.
Asbestos cases can be complicated and costly. We assist our clients in understanding the potential risks associated with this type of litigation and assist them in establishing internal programs that will detect potential safety and liability concerns. Contact us today to find out how we can help protect the interests of your company.