What's The Ugly Real Truth Of Asbestos Litigation Defense

Asbestos Litigation Defense

Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The attorneys of the Firm are regularly invited to give presentations at national conferences. They are also well-versed on the numerous issues that arise in defending asbestos cases.

Research has shown 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 cavity.

Statute of Limitations

In most personal injury claims there is a statute that limits the time limit within which a victim can file an action. For asbestos the statute of limitations is different by state and is different than in other personal injury lawsuits because the symptoms of asbestos-related diseases can take a long time to manifest.

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 cases rather than the date of exposure. This discovery rule is the reason that victims and their families need to work as soon as they can with an experienced New York asbestos lawyer.

When filing an asbestos lawsuit, there are a variety of factors that must be considered. One of the most important is the statute of limitations. This is the time limit that the victim must submit the lawsuit by, and failure to file the lawsuit could cause the case to be barred. The time limit for filing a lawsuit varies from state to state and laws differ greatly. However, most allow between one and six years after the victim was diagnosed.

In asbestos cases, defendants often use the statute of limitation as a defense against liability. For instance, they might argue that the plaintiffs were aware or should have known about their exposure and therefore had a duty to notify their employer. This is a common argument in mesothelioma lawsuits, 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 the means to warn about the dangers of the product. This is a difficult case and depends largely on the evidence available. For instance, it has been successfully argued in California that defendants didn't have "state-of-the-art" knowledge and could not be expected to provide adequate warnings.

Generally, it is best to file the asbestos lawsuit in the state where the victim's residence. However, there are some situations in which it might make sense to file the lawsuit in another state. This is usually connected with the location of the employer or the location where the employee was exposed to asbestos.

Bare Metal

The"bare-metal" defense is a method used by equipment manufacturers in asbestos litigation. The bare metal defense argues that because their products left the factory as untreated steel, they didn't have a duty to inform about the dangers posed by asbestos containing materials added later by other parties, such as thermal insulating flange seals and flange seals. This defense is accepted in a few jurisdictions, but it is not available under federal law in all states.

The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries changed the law. The Court did not accept the manufacturers' preferred bright line rule, and instead, a new standard under which manufacturers have a responsibility to inform consumers if they know that its product is likely to be harmful for its intended use and does not have any reason to believe that the end users will realize that risk.

This change in law will make it more difficult for plaintiffs to file claims against manufacturers of equipment. However this isn't the end. The DeVries decision is not applicable to state law claims based on strict liability or negligence, and therefore not brought under federal maritime law statutes, such as the Jones Act.

Plaintiffs will continue to pursue a wider interpretation of the bare metal defense. For example in the asbestos MDL case in Philadelphia, a case was remanded to an Illinois federal court to decide whether the state of Illinois recognizes the defense. The deceased plaintiff in that claim worked as a carpenter and was exposed to turbines and switchgear at an Texaco refinery that contained asbestos-containing components.

In the same case in Tennessee, a Tennessee judge has stated that he would adopt the third perspective of the defense of bare metal. The plaintiff in that case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma while working on equipment that was repaired or replaced by contractors from third parties, including the Equipment Defendants. The judge in that case held that the bare metal defense applies to cases like this. The Supreme Court's DeVries decision will impact how judges apply the bare metal defense in other cases.

Defendants' Experts

Asbestos litigation is complex and requires attorneys with extensive knowledge of law and medicine and access to experts of the highest caliber. EWH attorneys have decades of experience in asbestos litigation, including investigating claims, developing 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 will require the testimony from medical professionals like a radioologist or pathologist. They can confirm that X-rays as well as CT scans show the typical lung tissue scarring that is due to asbestos exposure. A pulmonologist may also testify regarding symptoms, like difficulty in breathing, that are similar to mesothelioma and other asbestos-related diseases. Experts can provide a thorough account of the plaintiff's work background, which includes an investigation of their tax social security documents, union and job information.

An forensic engineering or environmental science expert could be necessary to explain the cause of the asbestos exposure. Experts from these fields can assist defendants to argue that asbestos lawsuit exposure was not at the workplace, but was brought to the home through clothing worn by workers or by airborne particles.

Many of the plaintiffs lawyers will bring in economic loss experts to determine the financial losses suffered by the victims. These experts can calculate the amount of money that a victim lost as a result of their illness and its impact on their lifestyle. They can also testify about expenses like medical bills and the cost of hiring someone to do household chores that a person is unable to complete.

It is important for defendants to challenge expert witnesses of the plaintiff, especially in cases where they've been called to testify in dozens or hundreds of other asbestos-related claims. If they repeat their testimony, these experts may lose credibility among jurors.

In asbestos cases, defendants can also seek summary judgement in cases where they can demonstrate that the evidence doesn't prove that the plaintiff suffered injury due to exposure to the products of the defendant. However the judge will not grant summary judgment just because the defendant cites weaknesses in the plaintiff's evidence.

Going to Trial

The delays involved in asbestos cases mean that obtaining an accurate diagnosis can be nearly impossible. The time between exposure and the appearance of the disease can be measured in years. To determine the facts upon which to base an argument it is essential to review an individual's work background. This involves a thorough review of the individual's tax, social security and union records, as well as financial documents, in addition to interviews with family members and co-workers.

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 caused by an illness other than mesothelioma could be of significant value in settlement negotiations.

In the past, certain attorneys have employed this method to avoid responsibility and receive large sums. However, as the defense bar has developed the strategy has been generally rejected by the courts. This has been particularly evident in federal courts, where judges have routinely dismissed such claims due to the absence of evidence.

A careful evaluation of every potential defendant is therefore essential for a successful defense in asbestos litigation. This includes assessing the duration and nature of the exposure, as in addition to the severity of any diagnosed disease. For instance, a carpenter who has mesothelioma may be awarded higher damages than a person 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 been National Trial and National Coordination Counsel and are regularly appointed as liaison counsel by courts in order to manage asbestos dockets.

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