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Asbestos Litigation Defense

Cetrulo LLP has been widely recognized as a leader in asbestos attorneys litigation. The firm's lawyers regularly speak at national conferences and are knowledgeable in the myriad of issues that arise when the defense of asbestos cases that include jurisdictional Case Management Orders and expert selection.

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

Statute of Limitations

In the majority of personal injury cases, a statute of limitation establishes a time limit for how long after an injury or accident, the victim is allowed to bring a lawsuit. In asbestos cases, the statute of limitations differs by state. They also differ from other personal injury claims as asbestos-related illnesses can take a long time to develop.

Due to the delayed nature mesothelioma, and other asbestos-related diseases the statute of limitations begins on the date of diagnosis, or death in the case of wrongful death instead of the date of exposure. This discovery rule is the reason that victims and their families should seek out as soon as they can with a reputable New York asbestos lawyer.

When filing an asbestos lawsuit, there are many aspects that must be taken into account. The statute of limitations is among the most important. This is the time limit that the victim has to submit the lawsuit by, and failing to do so could result in the case being dismissed. The statute of limitations differs in each state, and laws differ greatly in some states, but the majority allow between one and six years from when the victim was diagnosed with an asbestos-related disease.

In an asbestos case, defendants often employ the statute of limitations as a defense to liability. They might argue, for example, that the plaintiffs should have known or knew about their asbestos exposure and had a duty of notification to their employer. This is a common argument used in mesothelioma lawsuits. It is difficult to prove for the victim.

Another defense that could be used in a case involving asbestos is that the defendants did not have the means or resources to warn people of the dangers posed by the product. This is a complicated argument and largely depends on the evidence that is available. For example, it has been successfully made in California that defendants didn't have "state-of-the-art" expertise and therefore could not be expected to give adequate warnings.

Generally, it is best to file the asbestos lawsuit in the state of the victim's home. In some cases it may be appropriate to file a lawsuit in a different state than the victim's. It usually has to do with the place of the employer or where the person was exposed to asbestos attorney.

Bare Metal

The bare metal defense is a common strategy employed by equipment manufacturers in asbestos litigation. The bare metal defense asserts that, because their products left the plant as bare steel, they didn't have a duty to warn 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 recognized in some jurisdictions but not everywhere.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed that. The Court rejected manufacturers' preferred bright-line rule and instead established the standard that requires a manufacturer to warn if they know that their integrated product is hazardous for its intended use and have no reason to believe that the end users will be aware of this danger.

Although this change in law could make it more difficult for plaintiffs to win claims against manufacturers of equipment, it's not the end of the tale. 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 like the Jones Act.

Plaintiffs will continue to seek a more expansive understanding of the bare-metal defense. In the Asbestos Multi-District Litigation in Philadelphia, for example, a case was remanded to an Illinois federal judge to determine if that state recognizes this defense. The deceased plaintiff in that claim was a carpenter, and was exposed to switchgear and turbines in a Texaco refinery that contained asbestos-containing components.

In a similar case in Tennessee, an Tennessee judge has indicated that he is likely to adopt the third view of bare metal defense. In that case the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed with mesothelioma. He had worked on equipment that was repaired or replaced by third party contractors, which included Equipment Defendants. The judge in the case ruled that bare-metal defenses can be applied to cases similar to this. The Supreme Court's decision in DeVries will affect the way judges use the bare metal defense in other contexts, such as those involving tort claims brought under state law.

Defendants' Experts

Asbestos litigation is a complex affair and requires attorneys with extensive knowledge of law and medicine and access to experts of the highest caliber. Attorneys at EWH have years of experience helping clients in a variety of asbestos litigation cases, such as investigating claims, developing strategic budgets and litigation management plans as well as identifying and retaining experts, and defending plaintiffs' and defendants expert testimony in deposition and at trial.

In most cases, asbestos cases require the testimony of medical professionals like a radioologist or pathologist. They will testify that X-rays and CT scans reveal the typical lung tissue scarring caused by asbestos exposure. A pulmonologist can also provide evidence of symptoms, such as breathing difficulties that are similar to symptoms of mesothelioma, as well as other asbestos-related diseases. Experts can provide a detailed description of the plaintiff's employment history, including an examination of his or her tax social security documents, union and job information.

It could be necessary to consult an engineer who is forensic or an environmental scientist to determine the cause of exposure to asbestos. Experts from these fields can assist defendants to argue that asbestos exposure did not occur at the workplace, but was brought into the home through the clothing of workers or the outside air.

Many of the plaintiffs' lawyers will bring in economic loss experts to determine the financial losses suffered by the victims. These experts will be able to determine 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 on expenses like medical bills as well as the cost of hiring someone to do household chores that a person can no longer perform.

It is important that defendants challenge plaintiffs expert witnesses, especially if they have testified on dozens or hundreds of asbestos claims. Experts can lose credibility with jurors if their testimony is repeated.

In asbestos cases, defendants can also request summary judgment when they demonstrate that the evidence does not show that the plaintiff suffered injuries due to their exposure to the defendant's product. A judge won't issue a summary judgment merely because a defendant points out gaps in the plaintiff’s proof.

Going to Trial

Due to the latency issues in asbestos cases, it is difficult to make a significant discovery. The duration between exposure and illness can be measured in decades. Thus, establishing the facts on which to build a case will require a thorough examination of a person's entire employment history. This requires a thorough examination of the individual's tax, social security, union and financial documents, as well as interviews with family members and colleagues.

Asbestos patients often develop less serious ailments 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 could be of significant importance in settlement negotiations.

In the past, certain lawyers have employed this method to deny responsibility and get large sums. However, as the defense bar has developed the strategy has been largely rejected by the courts. This is especially true in federal courts, where judges regularly dismiss claims based on lack of evidence.

An in-depth analysis of each potential defendant is essential to ensure a successful defense in asbestos litigation. This includes assessing the length and the nature of the exposure, as in addition to the degree of any diagnosed illness. For example, a carpenter who has mesothelioma will likely be awarded a higher amount of damages than a person who has only had asbestosis.

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

Asbestos cases can be complex and expensive. We assist our clients in understanding the risks associated with this type of litigation and assist them in establishing internal programs that will detect potential safety and liability issues. Contact us today to find out more about how we can protect your company's interests.