Asbestos Litigation Defense 10 Things I'd Like To Have Known In The Past
Asbestos Litigation Defense
Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The attorneys of the Firm are regularly invited to speak at national conferences. They are also well-versed on the many issues that arise when trying to defend asbestos cases.
Research has proven that exposure to asbestos can lead to lung disease and damage. This includes mesothelioma as well as lesser diseases such as asbestosis and plaques in the pleural cavity.
Statute of limitations
In the majority of personal injury claims, a statute limits the time period after the date a victim is able to file a claim. In asbestos cases, the statutes of limitations vary by state. They are also different from other personal injury lawsuits because asbestos-related diseases can take a long time to develop.
Due to the delayed nature mesothelioma, and other asbestos-related diseases the statute of limitations begins at the time of diagnosis, or death in wrongful death claims, rather than the date 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.
When filing an asbestos lawsuit, there are a variety of things that need to be taken into account. O'Fallon asbestos lawsuit of the most important is the statute of limitations. This is the time limit that the victim has to file the lawsuit by, and failing to file the lawsuit could cause the case to be barred. The statute of limitations varies in each state, and laws differ greatly in some states, but the majority allow between one and six years from the date the victim was diagnosed with an asbestos-related illness.
In an asbestos case, defendants often use the statute of limitation as a defense against liability. For instance, they could claim that the plaintiffs knew or should have known about their exposure, and therefore had a duty to notify their employer. This is a common defense in mesothelioma lawsuits and can be difficult to prove for the victim.
A defendant in an asbestos case may be able to claim that they did not have the resources or means to warn people about the dangers of the product. This is a complicated argument and largely depends on the evidence that is available. For instance, it was successfully made in California that defendants didn't have "state-of-the-art" expertise and therefore could not be expected to give adequate warnings.
In general, it's best to file an asbestos lawsuit in the state where the victim resides. In certain circumstances it may be appropriate to make a claim in a state other than the victim's. This usually has to do with the place of the employer or the location where the employee was exposed to asbestos.
Bare Metal
The bare-metal defense is a strategy that equipment manufacturers employ in asbestos litigation. The bare metal defense asserts that, because their products left the plant as untreated steel, they didn't have a duty to warn about the dangers posed by asbestos-containing materials later added by other parties, such as thermal insulating and flange seals. This defense is accepted in certain jurisdictions, but not in all.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries has altered the law. The Court rejected the bright-line rule that manufacturers prefer and instead created the standard that requires manufacturers to inform consumers when they know that their product is hazardous for its intended purpose. They have no reason to believe that the end users will realize this danger.
This modification in law makes it more difficult for plaintiffs to file claims against equipment manufacturers. However, this is not the end of the story. The DeVries decision is not applicable to state-law claims which are 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 wider understanding of the bare-metal defense. For example, in the Asbestos MDL in Philadelphia, a case has been remanded back to an Illinois federal court to determine whether that state recognizes the defense. The deceased plaintiff in that claim was a carpenter, and was exposed to turbines and switchgear at a Texaco refinery that contained asbestos-containing parts.
In a similar case a judge in Tennessee has signaled that he will 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 contractors of third party, 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 will apply the bare-metal defense in other cases, such as those involving tort claims brought under state law.
Defendants' Experts
Asbestos litigation can be complex and requires attorneys with deep medical and legal knowledge as well as access to top experts. EWH attorneys have years of experience in asbestos litigation, including investigating claims, preparing litigation management plans and strategic budgets, identifying and bringing in experts, and defending plaintiffs and defendants in expert testimony at trials and depositions.
Typically asbestos cases require the testimony of medical professionals such as a radiologist and pathologist who can testify regarding X-rays or CT scans that show the lung tissue being damaged typical of asbestos exposure. A pulmonologist can be able to testify about symptoms, such as breathing problems, which are similar to mesothelioma as well as other asbestos-related illnesses. Experts can provide a thorough account of the plaintiff's work background, including an investigation of their tax social security documents, union and job information.
A forensic engineer or environmental science expert may be necessary to explain the cause of the asbestos exposure. Experts in these fields can assist defense attorneys argue that the alleged asbestos was not exposed in the workplace and was instead brought home on workers' clothing or from the air outside (a common defense in mesothelioma cases).
Many plaintiffs' attorneys will hire economic loss experts to determine the monetary loss suffered by victims. These experts can calculate the amount of money a person suffered due to their illness and its impact on their lifestyle. They can also testify about expenses such as medical bills as well as the cost of hiring someone to perform household chores that one is unable to do anymore.
It is essential for defendants to challenge experts of the plaintiff, particularly in cases where they have given evidence in dozens, or hundreds of asbestos-related cases. Experts may lose credibility before jurors if their testimony is repeated.
In asbestos cases, defendants can also request summary judgment when they can prove that the evidence doesn't establish that the plaintiff suffered injury due to exposure to the products of the defendant. However, a judge will not grant summary judgment just because the defendant points to gaps in the plaintiff's proof.
Going to Trial
Due to the latency issues involved in asbestos cases, it can be difficult to make an accurate discovery. The time between exposure and disease can be measured in years. Therefore, determining the facts that will make a case will require a thorough examination of an individual's entire work history. This often involves a thorough review of social security and tax records, union, and financial records, as along with interviews with coworkers and family members.
Asbestos sufferers are often diagnosed with less serious ailments like asbestosis prior to diagnosis of mesothelioma. Due to this the ability of a defendant to demonstrate that the plaintiff's symptoms could be due to another disease 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. However, as the defense bar has grown and diversified, this strategy is generally rejected by the courts. This is particularly true for federal courts, where judges regularly reject such claims due to lack of evidence.
This is why an accurate assessment of every potential defendant is essential to a successful asbestos litigation defense. This involves evaluating both the severity and length of the illness as well as the nature of the exposure. For example, a carpenter who has mesothelioma may be awarded a higher amount of damages than a person who has only suffered from asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation for product manufacturers suppliers and distributors, contractors, employers, and property owners. Our attorneys have extensive experience as National Trial and National Coordinating Counsel, and are frequently appointed by the courts as liaison counsel to oversee the prosecution of asbestos dockets.
Asbestos litigation can be a bit complicated and expensive. We assist our clients to understand the risks involved in this type of litigation and we assist them to create internal programs that can detect liability and safety issues. Contact us today to find out how we can protect your business's interests.