Notes

Why Asbestos Litigation Defense Doesn't Matter To Anyone
Asbestos Litigation Defense

Cetrulo LLP is widely recognized as an industry leader in asbestos litigation defense. The firm's lawyers regularly participate in national conferences and are well-versed in the myriad issues that arise when defending asbestos cases such as jurisdictional Case Management Orders and expert selection.

Research has demonstrated that asbestos exposure can cause lung diseases and damage. This includes mesothelioma, and lesser illnesses like asbestosis and plaques in the pleural cavity.

Statute of limitations

In most personal injury cases, a statute of limitation sets a deadline for the length of time that follows an accident or injury, the victim can bring an action. For asbestos-related cases, the statutes of limitations differ by state. They also differ from other personal injury lawsuits since asbestos-related illnesses may take years to develop.

Due to the delayed nature of mesothelioma and asbestos-related diseases, the statute of limitations clock begins at the date of diagnosis (or death in cases of wrongful death) rather than at the date of exposure. This discovery rule is the reason the victims and their families should consult an experienced New York mesothelioma lawyer as soon as possible.

There are a variety of aspects to consider when making an asbestos lawsuit. The statute of limitations is one of the most crucial. The statute of limitations is the time limit by which the victim must file a lawsuit. Failure to file a lawsuit could result in the lawsuit being barred. The statute of limitations differs according to state, and the laws vary greatly however, most states allow between one and six years from the time the victim was diagnosed with an asbestos-related disease.

In asbestos cases, defendants often use the statute of limitation as a defense to liability. They might argue for instance that plaintiffs should have been aware or were aware of their exposure to asbestos and were under a duty of notification to their employer. This is an often used argument in mesothelioma cases and it can be difficult for the victim to prove.

A defendant in a case involving asbestos could also argue that they didn't have the resources or means to warn about the dangers of the product. This is a difficult case that relies heavily on the evidence available. In California for instance it was argument that defendants did not have "state-ofthe-art" information and therefore could not give adequate warnings.

Generally speaking, it is preferential to file the asbestos lawsuit in the state where the victim's residence. However, there are situations in which it might make sense to file the lawsuit in another state. This usually has something to relate to the location of the employer or where the person was first exposed to asbestos.

Bare Metal

The"bare metal" defense is a common strategy employed by equipment manufacturers in asbestos litigation. Skokie asbestos lawyer You Tube argues that because their products left the plant as untreated steel, they didn't have a responsibility to warn about the dangers posed by asbestos-containing materials later added by other parties, for instance thermal insulating and flange seals. This defense is accepted in some jurisdictions but not everywhere.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed that. The Court did not accept the bright-line rule that manufacturers prefer and instead formulated a standard that requires a manufacturer to warn if they know that their integrated product is dangerous for its intended purpose. They there is no reason to believe that the end users will realize this danger.

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

Plaintiffs will continue to pursue a broader reading of the bare metal defense. In the Asbestos Multi-District Litigation of Philadelphia for instance the case was remanded to an Illinois federal judge to determine if that state recognizes this defense. The plaintiff who died in that case was a carpenter who was exposed to turbines and switchgear at an Texaco refinery which contained asbestos-containing components.

In a similar case a judge in Tennessee has indicated that he is likely to take a different view of the bare metal defense. 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 ruled that the bare metal defense is applicable to cases like this. The Supreme Court's decision in DeVries will influence the way judges apply the bare metal defense in other situations for example, those involving tort claims under state law.

Defendants' Experts

Asbestos lawsuits are complicated and require skilled attorneys who have a thorough understanding of medical and legal issues and access to top expert witnesses. EWH attorneys have decades of experience in asbestos litigation, including investigating claims, preparing strategies for managing litigation and budgets, identifying and bringing in experts and defending plaintiffs as well as defendants expert testimony at trials and depositions.

In most cases, asbestos cases require the testimony from medical professionals such as a radiologist or pathologist. They can confirm that X-rays as well as CT scans reveal the typical lung tissue scarring that is due to asbestos exposure. A pulmonologist can be able to testify about symptoms, like breathing problems, which are similar to mesothelioma and other asbestos-related illnesses. Experts can also provide a detailed history of work performed by the plaintiff, such as a review of employment, union tax, social security documents.

A forensic engineer or environmental scientist may be necessary to explain the cause of the asbestos exposure. Experts from these fields can assist defendants to argue that asbestos exposure was not in the workplace, but brought to the home through clothing worn by workers or by airborne particles.

A lot of plaintiffs' lawyers employ experts in economic loss to assess the financial losses suffered by the victims. These experts can calculate the amount of money a person has lost due to illness and the impact it had on his or her life. They can also testify about expenses like the cost of medical bills as well as the cost of hiring a person to take care of household chores that a person can no longer perform.

It is crucial that plaintiffs challenge defendants experts, particularly in the event that they have testified on dozens or hundreds of asbestos claims. If they repeat their testimony, these experts could lose credibility with jurors.

In asbestos cases, defendants can also request summary judgment if they can demonstrate that the evidence doesn't establish that the plaintiff was injured from exposure to the defendant's product. A judge won't issue a summary judgment merely because a defendant identifies holes in the plaintiff's proof.

Trial

Due to the latency issues in asbestos cases, it can be difficult to make an accurate discovery. The time between exposure and the onset of disease can be measured in years. To establish the facts on which to build an argument, it is necessary to examine an individual's employment background. This usually involves an exhaustive examination of social security as well as tax, union and financial records as in interviews with co-workers and family members.

Asbestos sufferers are often diagnosed with less serious illnesses such as asbestosis prior to diagnosis of mesothelioma. Because of this, the ability of a defendant to show that the plaintiff's symptoms stem from a disease other than mesothelioma can have significant significance in settlement negotiations.

In the past, certain lawyers have employed this method to deny responsibility and obtain large amounts of money. As the defense bar evolved, courts have largely rejected this method. This is especially true in the federal courts, where judges have frequently dismissed claims due to the absence of evidence.

This is why an in-depth analysis of each potential defendant is essential to an effective asbestos litigation defense. This includes evaluating the severity and duration of the illness as well as the nature of the exposure. For instance, a worker who has mesothelioma is likely to suffer greater damages than someone who only has asbestosis.


The Bowles Rice Asbestos Litigation Team defends asbestos-related lawsuits for manufacturers, distributors and suppliers contractors, employers, and property owners. Our lawyers have been National Trial and National Coordination Counsel and are frequently appointed as liaison counsel by courts to handle asbestos dockets.

Asbestos cases can be complicated and costly. We assist our clients to understand the potential risks associated with this type of litigation and assist them in establishing internal programs to identify potential liability and safety concerns. Contact us today to find out more about how our firm can protect your company's interests.

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