New And Innovative Concepts Happening With Asbestos Litigation Defense
Asbestos Litigation Defense
Cetrulo LLP has been widely recognized as a leader in asbestos litigation. The firm's lawyers regularly speak at national conferences and are proficient in the myriad issues that arise in asbestos litigation that include jurisdictional Case Management Orders and expert selection.
Research has proved that exposure to asbestos causes lung damage and disease. This includes mesothelioma and less serious diseases like asbestosis and pleural plaques.
Statute of limitations
In most personal injury cases statutes limit the time period after which a victim may file an action. In the case of asbestos, the statute of limitations varies by state and differs from in other personal injury lawsuits due to the fact that asbestos-related illnesses can take decades to manifest.
Due to the delay in the development of mesothelioma and asbestos-related diseases the statute of limitation clock begins at the date of diagnosis (or death in cases of wrongful death) rather than at the time of exposure. This discovery rule is the reason the victims and their families must consult a reputable New York mesothelioma lawyer as soon as possible.
When filing an asbestos lawsuit, there are many aspects that must be taken into account. One of the most important is the statute of limitations. This is the time limit that the victim must file the lawsuit by, and failure to do so could cause the case to be closed. 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 when the victim was diagnosed with an asbestos-related disease.
In asbestos cases when the defendants often try to use the statute of limitations as a defense against liability. For instance, they might argue that the plaintiffs were aware or should have known about their exposure and thus had a legal obligation to inform their employer. This is an argument that is common in mesothelioma lawsuits and it can be difficult for the victim to prove.
Another possible defense in a asbestos case is that the defendants didn't have the means or resources to warn of the dangers associated with the product. This is a complicated case and depends largely on the available evidence. In Las Vegas asbestos lawsuit for instance, it was successfully argued that the defendants lacked "state-ofthe-art" information and could not be expected to provide sufficient warnings.
In general, it's best to start an asbestos lawsuit in the state in which the victim resides. In some cases, it may make sense to bring a lawsuit in a different state 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 method used by equipment manufacturers in asbestos litigation. The bare-metal defense claims that since their products left the plant as bare steel, they did not have a duty to inform about the dangers posed by asbestos containing materials added later by other parties, for instance thermal insulating flange seals and flange seals. This defense is recognized in some jurisdictions but not all.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the rules. The Court rejected the preferred rule of manufacturers' bright line rule, and instead, an entirely new standard that states that manufacturers are required to inform consumers if they know that its product will be dangerous for the purpose it was designed for and does not have any reason to believe that the end customers will be aware of the risk.
This change in law makes it more difficult plaintiffs to bring claims against manufacturers of equipment. However it's not the end of the story. The DeVries decision is not applicable to state-law claims based on strict liability or negligence, and is not applicable to claims brought under federal maritime law statutes like the Jones Act.
Plaintiffs will continue to pursue a broader interpretation of the bare metal defense. For example in the asbestos MDL in Philadelphia the case has been remanded 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 switchgear and turbines in the Texaco refinery that contained asbestos-containing components.
In a similar instance, a judge in Tennessee has signaled that he'll take a different approach to the bare-metal defense. In that case the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed as having mesothelioma. He had worked on equipment that was repaired or replaced by third-party contractors, which included Equipment Defendants. The judge in that case held that the bare metal defense applies to cases such as this. The Supreme Court's decision in DeVries will have an impact on how judges use the bare metal defense in other contexts, such as those involving tort claims under state law.
Defendants' Experts
Asbestos lawsuits are complex and require experienced lawyers with a deep knowledge of both legal and medical issues and access to expert witnesses of the highest caliber. EWH attorneys have decades of experience in asbestos litigation, such as investigating claims, preparing strategies for managing litigation, including budgets, identifying and hiring experts as well as defending plaintiffs and defendants with expert testimony in depositions and trials.
In most cases, asbestos cases require the testimony from medical professionals like a radioologist or pathologist. They can confirm that X-rays as well as CT scans show the typical scarring of lung tissue due to asbestos exposure. A pulmonologist may also provide evidence of symptoms, such as breathing difficulties that are similar to symptoms of mesothelioma or other asbestos-related diseases. Experts can provide an in-depth description of the plaintiff's employment background, including an examination of his or her tax social security documents, union and job information.
A forensic engineer or environmental science expert may be required to clarify the cause of the asbestos exposure. These experts can help defendants to argue that asbestos exposure did not occur at the workplace, but was brought into the home through the clothing of workers or air outside.
Many attorneys representing plaintiffs hire economic loss experts to calculate the financial losses incurred by victims. These experts can calculate the amount of money a person has lost due to their illness and the effect it affected their life. They can also testify about expenses such as the cost of medical bills and the price of hiring someone to perform household chores that one is unable to do anymore.
It is essential that defendants challenge the plaintiffs expert witnesses, especially in the event that they have testified on hundreds or dozens of other asbestos claims. Experts can lose credibility with the jury if their testimony is repeated.
Plaintiffs in asbestos cases may also seek summary judgment if they demonstrate that the evidence does not prove that the plaintiff suffered injuries caused by their exposure to the defendant's product. However, a judge will not grant summary judgment just because the defendant has pointed out weaknesses in the plaintiff's evidence.
Trial
Due to the latency issues that are prevalent in asbestos cases, it is difficult to make a significant discovery. The time between exposure and disease can be measured in decades. To establish the facts on which to base an argument it is essential to review an individual's work 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 victims often develop less serious diseases such as asbestosis before being diagnosed with mesothelioma. Because of this, a defendant's ability to show that the plaintiff's symptoms are due to another disease 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. However, as the defense bar has grown and diversified, this strategy has been generally rejected by the courts. This is especially true in federal courts, where judges often dismiss claims based on the absence of evidence.
As a result, an accurate assessment of each potential defendant is crucial to a successful asbestos litigation defense. This includes evaluating the severity and length of the illness and the extent of the exposure. For example, a woodworker who has mesothelioma is likely to receive higher damage than someone who has asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation for product manufacturers suppliers and distributors contractors, employers, and property owners. Our lawyers have extensive experience as National Trial and National Coordinating Counsel. They are frequently appointed by courts as liaison counsel to handle the prosecution of asbestos dockets.
Asbestos cases can be complex and expensive. We assist our clients to be aware of the risks associated with this type of litigation and we assist them to create internal programs that will proactively identify safety and liability concerns. Contact us today to find out more about how our company can protect your business's interests.