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Responsible For The Asbestos Litigation Defense Budget? 10 Ways To Waste Your Money
Asbestos Litigation Defense

Cetrulo LLP is widely recognized as an industry leader in asbestos litigation defense. The Firm's attorneys are regularly invited to present at national conferences. They are also well-versed on the many issues that arise when defending asbestos cases.

Research has demonstrated that exposure to asbestos can lead to lung disease and damage. This includes mesothelioma, as and lesser diseases such as asbestosis and plaques in the pleural region.

Statute of Limitations

In most personal injury cases statutes limit the time period after the date a victim is able to file an action. For asbestos, the statute of limitations is different by state and differs from in other personal injury claims due to the fact that asbestos-related illnesses can take decades to manifest.

Due to the delaying nature of mesothelioma and asbestos-related diseases the statute of limitations begins at the time of diagnosis (or death, in cases of wrongful death) instead of the time of exposure. This discovery rule is why the victims and their families should consult a reputable New York mesothelioma lawyer as soon as they can.

There are a myriad of factors to consider when filing an asbestos lawsuit. One of the most important is the statute of limitations. The statute of limitations is the deadline that the victim has to start a lawsuit. Failure to file a lawsuit could result in the case being barred. The time limit for filing a lawsuit varies by state, and the laws vary greatly, but most allow for between one and six years from the time the victim was diagnosed with an asbestos-related disease.

In an asbestos case defendants typically make use of the statute of limitations as a defense against liability. They may say that, for instance, the plaintiffs should have known 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 can be difficult to prove for the victim.

A defendant in an asbestos case could also claim that they did not have the resources or means to warn about the dangers of the product. This is a complicated argument that is largely based on the evidence available. For instance, it has been successfully presented in California that defendants didn't possess "state-of-the-art" knowledge and thus could not be expected to give adequate warnings.


Generally speaking, it is preferential to start the asbestos lawsuit in the state where the victim's residence. However, there are certain circumstances where it may be beneficial to file the lawsuit in a different state. This usually has to do with the place of the employer, or the location where the employee was exposed to asbestos.

Bare Metal

The defense of bare metal is a common strategy employed by equipment manufacturers in asbestos litigation. The bare-metal defense claims that because their products left the plant as untreated steel, they didn't have a responsibility to warn about the dangers of asbestos-containing products later added by other parties, such as thermal insulating flange seals and flange seals. This defense has been accepted in some jurisdictions, but it is not a federally-approved option in all states.

The Supreme Court's ruling in Air & Liquid Sys. Corp. v. DeVries changed that. The Court rejected the bright-line rule of manufacturers and instead established an obligation for a manufacturer to warn if they know that their product is hazardous for its intended use and there is no reason to believe that users 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. The DeVries decision is not applicable to state law claims that are based on strict liability or negligence, and therefore not brought under federal maritime law statutes like the Jones Act.

Plaintiffs will continue pursuing an expanded interpretation of the bare-metal defense. For Arvada asbestos lawyers in the asbestos MDL in Philadelphia the case has been remanded to an Illinois federal court to determine whether the state is able to recognize the defense. The deceased plaintiff in this claim was a carpenter who had been exposed to switchgear, turbines, and other asbestos-containing equipment at a Texaco refinery.

In a similar case a judge in Tennessee has indicated that he'll adopt a third 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 third-party contractors including the Equipment Defendants. The judge in the case decided that bare metal defenses apply to cases like this. The Supreme Court's DeVries decision will impact how judges apply the bare metal defense in other situations.

Defendants' Experts

Asbestos lawsuits are complicated and require skilled lawyers who have a thorough knowledge of both legal and medical issues and access to expert witnesses of the highest caliber. EWH attorneys EWH have years of experience helping clients in various asbestos litigation issues, including analyzing claims, developing strategic budgets and plans for managing litigation in identifying and retaining experts, and defending defendants' and plaintiffs expert testimony during deposition and during 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 the lung tissue being damaged that is typical of asbestos exposure. A pulmonologist can also testify about symptoms such as difficulty breathing, which are similar to those of mesothelioma and other asbestos-related illnesses. Experts can also provide a detailed history of work performed by the plaintiff, including a review of job, union, tax, and social security documents.

It is possible to consult an engineer who is forensic or an environmental scientist to determine the source of exposure to asbestos. These experts can help plaintiffs argue that the asbestos was not exposed at work and instead was ingested through clothing worn by workers or from the outside air (a common defense in mesothelioma cases).

Many of the plaintiffs lawyers will call experts in economic loss to assess the financial loss suffered by the victims. They will be able to calculate the amount of money a person suffered due to their illness and its effect on their lifestyle. They can also testify to expenses like medical bills and the cost of hiring someone to perform household chores a person is unable to perform.

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

In asbestos cases, defendants may also seek summary judgment in cases where they can demonstrate that the evidence does NOT establish that the plaintiff suffered injury due to exposure to the products of the defendant. A judge won't give summary judgment just because a defendant has pointed out gaps in the plaintiff’s proof.

Trial

The latency issues involved in asbestos cases means that meaningful discovery can be nearly impossible. The duration between exposure and illness can be measured by decades. To determine the facts upon which to base a claim it is important to review an individual's work history. This often involves a thorough review of social security as well as tax, union and financial records, as well as interviews with co-workers and family members.

Asbestos victims often develop less serious illnesses like asbestosis prior to a mesothelioma diagnosis. Due to this the ability of a defendant to prove that the plaintiff's symptoms could be due to a different illness other than mesothelioma can be beneficial in settlement negotiations.

In the past, certain attorneys have employed this method to avoid responsibility and receive large sums. As the defense bar grew and the courts have generally rejected this method. This is particularly relevant in federal courts, where judges have often dismissed claims due to the absence of evidence.

An in-depth analysis of each potential defendant is essential to ensure a successful defense in asbestos litigation. This involves evaluating both the severity and length of the illness as well as the type of the exposure. For example, a woodworker who has mesothelioma is likely to receive higher damages than someone who only has asbestosis.

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

Asbestos litigation can be complex and costly. We assist our clients to be aware of the risks associated with this type of litigation and we assist them to develop internal programs that are proactive and identify safety and liability concerns. Contact us to find out how we can safeguard the interests of your company.

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