Notes

What The Heck What Is Asbestos Litigation Defense?
Asbestos Litigation Defense

Defending companies from asbestos litigation requires a thorough analysis of a plaintiff's work history as well as medical records and evidence. We often use a bare metal defense, which focuses on proving that your company didn't manufacture, sell, or distribute the products containing asbestos that are the subject of the claimant's lawsuit.

Asbestos cases require a unique approach and a determined strategy to achieve success. We are local, regional and national counsel.

Statute of Limitations

The majority of lawsuits have to be filed within a specified time period, known as the statute of limitations. In asbestos cases the deadline to file a lawsuit is anywhere between one and six years after the victim is diagnosed with an asbestos-related disease. It is crucial for the defense to prove that the alleged injury occurred after the deadline. In most cases, this involves conducting a thorough review of the plaintiff's employment history, which includes interviews with former coworkers as well as the careful review of Social Security, union, tax and other documents.

Defending asbestos cases involves a variety of complex issues. For example, asbestos victims often develop a less serious illness such as asbestosis before being diagnosed with a fatal disease such as mesothelioma. In these instances, the defense attorney will argue the time limit should be set when the victim realized or should have reasonably believed that exposure to asbestos caused the disease.

The complex nature of these cases is also complicated by the fact that the statute of limitations may differ from state to state. In these cases a mesothelioma lawyer who is experienced will attempt to bring the case in the state where most of the exposure alleged occurred. This can be a daunting task, as asbestos victims frequently travel across the country in search of work, and the exposure could have occurred in a variety of states.

In addition, the process of discovery is a challenge in asbestos litigation. Unlike other types of personal injury cases, which often contain only a few defendants, asbestos-related litigation usually includes dozens or more defendants. As a result, it is often difficult to obtain meaningful discovery in these cases, particularly when the plaintiff's argument for injuries spans decades and involves many defendants.

The McGivney, Kluger, Clark & Intoccia team has extensive experience serving as National Coordinating Counsel in multi-district and multi-jurisdictional asbestos litigation. We collaborate closely with local and regional counsel to develop a strategy for litigation, manage local counsel and achieve consistent, cost-effective results in line with client objectives. We regularly appear before coordination and trial judges as well as special masters of litigation, across the country.

Bare Metal Defense

In the past, manufacturers of turbine, boiler and pump equipment have sought to defend themselves in asbestos litigation by claiming a defense known as the "bare metal" or component part doctrine. This defense holds that a company cannot be held responsible for asbestos-related harms caused by replacement components that the company did not make or install.

In the case of Devries v. Devries, the Tennessee Eastman Chemical plant employee sued several equipment manufacturers over his mesothelioma. The plaintiff's job included the removal and replacement insulation, steam traps and gaskets from equipment, such as pumps, valves, and steam traps. He claimed that he was exposed to asbestos while working in the plant and was diagnosed with Mesothelioma many years afterward.

The Supreme Court's Devries decision has altered the nature of asbestos litigation and could affect the way that courts in other jurisdictions approach the issue of third-party components that manufacturers incorporate into their equipment. The Court stated that the application of the bare-metal defense in this case is "cabined" to maritime law, but left open the possibility that other federal circuits will apply this doctrine to non-maritime cases, as well.

This ruling was the first time that an appeals court of the federal level has used the defense of bare metal in a lawsuit involving asbestos, and represents a significant departure from traditional product liability law. The majority of courts have interpreted "bare metal" as a rejection of the obligation of a manufacturer to inform about the dangers posed by replacement parts it did not make or sell.

The McGivney, Kluger, Clark & Intoccia team regularly serves as National Coordinating Counsel for clients who are involved in multi-jurisdictional asbestos litigation. We assist our clients to develop litigation strategies, manage regional and local counsel, and ensure an effective, cost-effective and consistent defense in coordination with their objectives. Our lawyers present at industry conferences on major issues that affect asbestos litigation. Our firm has a long history of defending clients across the 50 states and working closely with trial courts, coordinating judges and special masters of litigation. Our unique approach has proven successful in reducing exposure and legal expenses for our clients.

Expert Witnesses

An expert witness is someone who has specific skills, experience or knowledge and provides independent assistance to the court in the form of an objective opinion regarding issues that fall within his expertise. He must be able to clearly articulate the facts or assumptions on the basis of his opinion and should not be oblivious to consider matters which might affect his conclusions.

In the event that asbestos exposure is suspected, medical experts may be required to assess the claimant's condition and identify any causal connections between the condition and the identified source of exposure. Many of the ailments caused by asbestos are extremely complex, and require the expertise of experts in the field. This includes nurses and doctors as well as toxicologists, pharmacists epidemiologists, occupational health specialists, and pharmacists.

Whether it is the prosecution or defence the expert's job is to provide objective technical assistance. He should not serve as an advocate or try to influence the jury to favor his client. The duty to the court overrides his obligations to his client and he should not try to push an argument or locate evidence to support it.

The expert should cooperate with other experts in attempting to reduce any technical issues at a very early stage and eliminate any irrelevant issues. the full report should also co-operate with the experts who instruct him in identifying areas that are in agreement and areas of disagreement for the purpose of the joint declaration of experts ordered by the court.

After completing his main examination, the expert should be able to explain his findings and the reasons for them in a clear and easy-to-understand way. He should be able to answer any questions from the judge or the prosecution, and be prepared to address all points that were raised during cross-examination.


Cetrulo LLP is well versed in the defense of clients in complex, multi-jurisdictional, multi-party asbestos litigation. Our lawyers are able to manage and counsel national and regional defense counsel as in addition to local, regional and expert witnesses and experts. Our team is regularly in front of coordinating judges, trial judges and special masters in asbestos litigation across the nation.

Medical Experts

Due to the latency issues that occur between asbestos exposure and appearance of symptoms experts are a crucial part in any case that involves an asbestos-related injury. Asbestos cases frequently involve complex theories of injury that span decades and involve hundreds or even dozens of defendants. It is nearly impossible for an individual to prove their case without the assistance of experts.

Experts in the fields of medicine and other sciences are needed to evaluate the extent of a person's exposure and their medical condition, and also to provide information on future health concerns. Experts like these are essential in any case and should be thoroughly vetted and knowledgeable about the relevant field. The more experience the medical or scientific expert has the more persuasive they will be.

Asbestos cases often require an expert from a medical or scientific field to review the medical records of the plaintiff and conduct a physical exam. These experts can testify as to whether the claimant's exposure to asbestos was sufficient to cause an illness that is specific to him, like mesothelioma or lung cancer, or other types of scarring that affects the lungs and respiratory tract (e.g. the pleural plaques).

Other experts such as industrial hygienists could be required to aid in determining the existence of asbestos-related exposure levels. They can use sophisticated analytical and sampling techniques to evaluate the asbestos concentrations in the air in a home or workplace with the standards for exposure that are legally required.

They can be useful in defending companies that manufacture or distribute asbestos-related products. They are usually in a position to prove that the levels of exposure for plaintiffs were lower than the limits set by law, and that there was not evidence of employer negligence or product manufacturer responsibility.

Other experts in these instances include environmental and occupational specialists who can provide insight on the safety protocols at a specific workplace or company, and how such protocols relate to asbestos manufacturers' liability. For example, these experts can establish that renovation materials disturbed during a remodel project are more likely to contain asbestos, or shaking out clothing contaminated with asbestos could cause asbestos fibers to release and be inhaled.

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