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New And Innovative Concepts Happening With Asbestos Litigation Defense
Asbestos Litigation Defense

Cetrulo LLP is widely recognized as an industry leader in asbestos litigation defense. The attorneys of the Firm are regularly invited to speak at national conferences. They are also knowledgeable in the myriad of issues that arise when litigating asbestos cases.

Research has proved that asbestos exposure can cause lung damage and diseases. This includes mesothelioma, other lesser illnesses like asbestosis and pleural plaques.

Statute of Limitations

In most personal injury cases statutes limit the time frame within which a victim can make a claim. For asbestos-related cases, the statute of limitations differs by state. They are also different from other personal injury claims because asbestos-related diseases can take years to develop.

Due to the delay in the development of mesothelioma as well as other asbestos-related diseases, the statute of limitations clock starts at the date of diagnosis (or death in the case of wrongful deaths) rather than at the time of exposure. This discovery rule is why victims and their families must work as quickly as they can with an experienced New York asbestos lawyer.

When filing an asbestos lawsuit, there are many factors that must be considered. One of the most important is the statute of limitations. The statute of limitations is the date that the victim has to start a lawsuit. Failure to do so will result the lawsuit being barred. The statute of limitations varies in each state, and laws differ widely, but most allow for between one and six years from the time the victim was diagnosed with an asbestos-related illness.

In asbestos cases, the defendants will often attempt to invoke the statute of limitations to defend against liability. They could argue, for example, that 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 defense that could be used in a asbestos case is that the defendants did not have the resources or means to inform the public about the dangers of the product. This is a complicated case and relies on the available evidence. In California for instance, it was successfully claimed that defendants were not equipped with "state-ofthe-art" information and could not be expected give adequate warnings.

In general, it is best to file an asbestos lawsuit in the state where the victim lives. However, there are circumstances where it may be appropriate to file the lawsuit in an alternative state. This is usually connected with the place of the employer or where the person was exposed to asbestos.

Bare Metal

The bare metal defense is a standard strategy used by manufacturers of equipment in asbestos litigation. The bare metal defense argues that since their products left the factory as untreated steel, they did not have a duty to warn about the dangers posed by asbestos containing materials added later by other parties, for instance thermal insulating flange seals and flange seals. This defense is recognized in certain jurisdictions, but not everywhere.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed that. The Court has ruled against the preferred rule of manufacturers' bright line rule, and instead established a new standard under which manufacturers have a responsibility to inform consumers if they know that its product is likely to be dangerous for its intended use and does not have any reason to believe that its end customers 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 story. For one reason, the DeVries decision is not applicable to state-law claims that are based on negligence or strict liability, and are not covered under federal maritime law statutes, such as the Jones Act or the Maritime Claims Act.

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

In asbestos defense litigation in Tennessee, a Tennessee judge has indicated that he will 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 third-party contractors, including the Equipment Defendants. The judge in that case ruled that the bare metal defense applies to cases like this. The Supreme Court's decision in DeVries will influence the way judges use 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 who have a thorough understanding of medical and legal issues as well as access to expert witnesses of the highest caliber. Attorneys at EWH have years of experience in assisting clients with a variety of asbestos litigation cases, such as investigating claims, developing strategic budgets and litigation management plans, hiring and retaining experts and defending 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 show scarring of the lung tissue typical of asbestos exposure. A pulmonologist could also testify regarding symptoms, such as breathing difficulties, which are similar to mesothelioma and other asbestos-related diseases. Experts can also provide a detailed history of work performed by the plaintiff, including a review of employment, union, tax, and social security documents.

It is possible to consult an engineer who is forensic or an environmental scientist to determine the cause of asbestos exposure. Experts in these fields can assist defense attorneys argue that the alleged asbestos was not exposed at the workplace and instead was brought home through clothing worn by workers or from the air outside (a common defense in mesothelioma cases).

Many attorneys representing plaintiffs employ economic loss experts to assess 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 about costs like medical bills and the cost of hiring someone to perform household chores that a person cannot complete.

It is essential that defendants challenge plaintiffs expert witnesses, especially if they have testified on hundreds or dozens of asbestos claims. If they repeat their testimony, the experts may lose credibility with jurors.

Defendants in asbestos cases can also seek summary judgment if they show that the evidence doesn't establish that the plaintiff was injured from exposure to the defendant's product. A judge will not give summary judgment just because a defendant identifies gaps in the plaintiff’s proof.

Going to Trial

Due to the latency issues in asbestos cases, it can be difficult to make an accurate discovery. The lag between exposure and the development of the disease can be measured in decades. Therefore, determining the facts on which to create a case, requires a thorough review of the entire work history. This requires a thorough examination of the individual's tax, social security and union financial documents, in addition to interviews with family members and colleagues.

Asbestos patients are more likely to develop less serious diseases like asbestosis prior to the diagnosis of mesothelioma. Because of this, the ability of a defendant to demonstrate that plaintiff's symptoms are caused by an illness other than mesothelioma may have a significant importance in settlement negotiations.

In the past, certain lawyers have employed this tactic to avoid liability and receive large amounts of money. However, as the defense bar has evolved, this approach has been generally rejected by the courts. This is particularly true for federal courts, where judges regularly reject such claims due to lack of evidence.


As a result, an in-depth analysis of each potential defendant is essential to an effective asbestos defense. This includes assessing the duration and extent of exposure, as in addition to the severity of any diagnosed disease. For example carpenters with mesothelioma may be awarded higher damages than someone who has only suffered from asbestosis.

The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation on behalf of manufacturers suppliers and distributors, contractors, employers, and property owners. Our attorneys have extensive experience serving as National Trial and National Coordinating Counsel, and are frequently appointed by courts as liaison counsel to oversee the prosecution of asbestos dockets.

Asbestos litigation can be complex and costly. We assist our clients in understanding the risks involved in this type of litigation. We assist them in establishing internal programs to detect potential safety and liability concerns. Contact us today to learn more about how our company can safeguard your company's interests.

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