Three Of The Biggest Catastrophes In Asbestos Litigation Defense The Asbestos Litigation Defense's 3 Biggest Disasters In History
Asbestos Litigation Defense
Cetrulo LLP is widely recognized as an industry leader in asbestos litigation defense. The attorneys of the Firm regularly speak at national conferences and are proficient in the myriad issues that arise in defending asbestos cases, including jurisdictional Case Management Orders and expert selection.
Research has proved that asbestos exposure causes lung damage and diseases. This includes mesothelioma as other lesser illnesses like asbestosis and plaques in the pleural cavity.
Statute of Limitations
In the majority of personal injury cases, a statute of limitations defines a time frame for the time after an accident or injury the victim is allowed to file an action. In asbestos cases, the statutes of limitations differ by state. They are also different from other personal injury claims as asbestos-related illnesses can take a long time to manifest.
Due to the delayed nature of mesothelioma and other asbestos-related diseases the statute of limitations begins at the time of diagnosis (or death, in the case of wrongful deaths) instead of the date of exposure. This discovery rule is the reason why the families of victims need to work as soon as they can with a reputable New York asbestos lawyer.
There are a variety of aspects to take into consideration when filing an asbestos lawsuit. The statute of limitations is among the most important. This is the time limit that the victim must file the lawsuit by, and failure to file the lawsuit will result in the case being barred. The time limit for filing a lawsuit varies in each state, and laws differ widely in some states, but the majority allow between one and six years from the time the victim was diagnosed with an asbestos-related disease.
In an asbestos case defendants frequently make use of the statute of limitations as a defense to liability. They may say that, for instance, the plaintiffs should have known or knew about their exposure to asbestos and that they had a duty of notification to their employer. This is an argument that is common in mesothelioma litigation, and it can be difficult for the victim to prove.
A defendant in a case involving asbestos could also claim that they did not have the resources or means to warn people about the dangers of the product. This is a complex case and depends largely on the available evidence. In California, for example, it was successfully claimed that defendants were not equipped with "state-ofthe-art" information and therefore could not give adequate warnings.
In general, it is best to file an asbestos lawsuit in the state where the victim resides. In certain situations it may be appropriate to bring a lawsuit in a different state from the victim's. This usually has something to relate to the location of the employer or where the worker was first exposed to asbestos.
Bare Metal
The defense of bare metal is a tactic that equipment manufacturers employ in asbestos litigation. The bare metal defense asserts that since their products left the factory as bare steel, they did not have a duty to inform about the dangers posed by asbestos-containing products later added by other parties, like thermal insulating flange seals and flange seals. This defense is a common one in certain jurisdictions, but not all.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries has changed the law. The Court has ruled against the preferred rule of manufacturers' bright line rule and instead created an entirely new standard that states that manufacturers have a responsibility to warn consumers if it is aware that its product will be dangerous for its intended purposes and has no reason to believe that its end users will realize that risk.
This modification in law makes it more difficult for plaintiffs to bring claims against equipment manufacturers. However this isn't the end of the story. For one reason, the DeVries decision is not applicable to state-law claims that are made on the basis of 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 a broader interpretation of the bare-metal defense. In the Asbestos Multi-District Litigation in Philadelphia for instance, a case was remanded back to an Illinois federal judge to determine if that state recognizes this defense. The plaintiff who died in that case worked as a carpenter and was exposed to switchgear and turbines in the Texaco refinery which contained asbestos-containing components.
In a similar case a judge in Tennessee has stated that he is likely to adopt a third view of the bare-metal defense. In the case the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed as having mesothelioma. He was employed on equipment that was repaired or replaced by third party contractors, including Equipment Defendants. The judge in the case decided that the bare-metal defense is applicable to cases like this. The Supreme Court's decision in DeVries will have an impact on how judges apply the bare metal defense in other contexts for example, those involving tort claims brought under state law.
Defendants' Experts
Asbestos litigation is a complex affair and requires lawyers with extensive knowledge of law and medicine as well as access to experts of the highest caliber. The attorneys at EWH have decades of experience assisting clients in various asbestos litigation cases, such as investigating claims, developing strategic budgets and plans for managing litigation as well as identifying and retaining experts, and defending plaintiffs' and defendants' expert testimony during deposition and at trial.
Most asbestos cases require the testimony from medical professionals like a radioologist or pathologist. They can testify that X-rays and CT scans reveal the typical lung tissue scarring caused by asbestos exposure. A pulmonologist is also able to be a witness to symptoms like difficulty breathing and coughing, which are similar to symptoms of mesothelioma or other asbestos-related diseases. Experts can provide an in-depth report of the plaintiff's job history, including an analysis of their tax social security, union and job records.
A forensic engineering or environmental science expert may be required to clarify the cause of the asbestos exposure. asbestos litigation paralegal can aid the defendants argue that the asbestos exposure was not at the workplace, but brought home by workers' clothing or air outside.
A lot of plaintiffs' lawyers will bring experts in economic loss to establish the monetary losses suffered by the victims. They can estimate the amount of money a person lost as a result of their illness and the impact it had on their lifestyle. They can also testify on expenses like medical bills and the cost of hiring someone to perform household chores that a person cannot complete.
It is crucial for defendants to challenge experts of the plaintiff, particularly in cases where they have testified in dozens or even hundreds of asbestos-related claims. Experts may lose credibility with jurors when their testimony is repeated.
In asbestos cases, defendants may also request summary judgment in cases where they can demonstrate that the evidence does NOT establish that the plaintiff was injured by exposure to the products of the defendant. However, a judge will not accept summary judgment simply because the defendant has pointed out holes in the plaintiff's proof.
Going to Trial
The latency issues involved in asbestos cases mean that getting significant information can be almost impossible. The time between exposure and the development of the disease could be measured in years. To determine the facts upon which to base an argument, it is necessary to examine an individual's employment history. This includes a thorough analysis of the individual's social security, tax, union and financial records, as well as interviews with family members and coworkers.
Asbestos victims often develop less serious diseases such as asbestosis before a mesothelioma diagnosis. Because of this, the ability of a defendant to demonstrate that the plaintiff's symptoms could be caused by a different disease than mesothelioma is valuable in settlement negotiations.
In the past, certain attorneys have employed this method to avoid responsibility and receive large sums. As the defense bar evolved, courts have generally resisted this approach. This is particularly evident in federal courts where judges have frequently dismissed claims based on the lack of evidence.
Because of this, an in-depth analysis of every potential defendant is crucial to a successful asbestos defense. This includes assessing the duration and nature of the exposure as in addition to the severity of any diagnosed disease. For instance, a woodworker who has mesothelioma will likely to receive higher damages than a person who only has asbestosis.
The Bowles Rice Asbestos Litigation Team regularly defends product manufacturers, suppliers, distributors, contractors and property owners as well as employers in asbestos related litigation. Our attorneys have been appointed as National Trial and National Coordination Counsel and are frequently appointed as liaison counsel by courts to handle asbestos dockets.
Asbestos cases can be complex and expensive. We help our clients understand the risks associated with this type of litigation. We work with them to formulate internal programs that will identify potential liability and safety concerns. Contact us to learn how we can help protect the interests of your company.