The Most Pervasive Problems In Asbestos Litigation Defense
Toledo asbestos lawsuit has been widely recognized as a leader in asbestos litigation. The firm's lawyers regularly participate in national conferences and are well-versed in the myriad issues that arise in defending asbestos cases, including jurisdictional Case Management Orders and expert selection.
Research has proved that asbestos exposure can cause lung damage and diseases. This includes mesothelioma, other lesser illnesses like 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 make a claim. In the case of asbestos, the statute of limitations differs by state and differs from in other personal injury lawsuits because the symptoms of asbestos-related diseases can take years to show up.
Due to the delaying nature of mesothelioma and asbestos-related diseases the statute of limitation begins at the time of diagnosis (or death in wrongful death cases) rather than at the time 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 consider when filing an asbestos lawsuit. The statute of limitations is among the most crucial. The statute of limitations is the date by which the victim must start a lawsuit. In the event of a delay, it will result in the case being barred. The statute of limitations differs 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 illness.
In asbestos cases, the defendants will often attempt to invoke the statute of limitations as a defense against liability. For example, they may argue that the plaintiffs were aware or should have known about their exposure, and therefore had a duty to notify their employer. This is an often used argument in mesothelioma cases, and it can be difficult for the plaintiff to prove.
A defendant in an asbestos case could also claim that they didn't have the resources or the means to inform people about the dangers of the product. This is a complicated argument that relies on the evidence that is available. For example it has been successfully made in California that defendants didn't possess "state-of-the-art" knowledge and could not be expected to give adequate warnings.
In general, it is recommended to start the asbestos lawsuit in the state of the victim's residence. However, there are certain circumstances where it may be beneficial to file the lawsuit in another state. This usually has to do with the place of the employer or the place where the worker was exposed to asbestos.
Bare Metal
The defense of bare metal is a typical strategy used by manufacturers of equipment in asbestos litigation. It states that since their products were manufactured as bare metal, they had no duty to warn of the risks of asbestos-containing substances that were added by other parties later, such as thermal insulation and flange gaskets. This defense has been accepted in some areas, but it is not a federally-approved option in all states.
The Supreme Court's ruling 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 established the new standard under which manufacturers have a responsibility 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 its end customers will be aware of the risk.
This change in law makes it more difficult for plaintiffs to file claims against equipment manufacturers. However it's not the end. The DeVries decision is not applicable to state-law claims that are based on strict liability or negligence, and is not applicable to claims brought under federal maritime law statutes such as the Jones Act.
Plaintiffs will continue to seek a more expansive reading 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 whether that state recognizes this defense. The plaintiff who died in this instance was a carpenter who was exposed to turbines, switchgear and other asbestos-containing parts at a Texaco refinery.
In the same case in Tennessee, an Tennessee judge has stated that he would adopt the third view of 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 held 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 cases like those that involve state law tort claims.
Defendants' Experts
Asbestos litigation is a complex affair and requires attorneys with extensive knowledge of law and medicine, as well as accessing experts of the highest caliber. EWH attorneys EWH have decades of experience in assisting clients with a variety of asbestos litigation matters including investigating claims, preparing strategic budgets and plans for managing litigation as well as identifying and retaining experts, and defending defendants' and plaintiffs' expert testimony during deposition and at trial.
Typically asbestos cases require testimony of medical professionals, such as pathologists and radiologists who can testify regarding X-rays or CT scans that reveal scarring of the lung tissue that is typical of asbestos exposure. A pulmonologist is also able to provide evidence of symptoms, such as breathing difficulties and coughing, which are similar to symptoms of mesothelioma, as well as other asbestos-related diseases. Experts can provide an in-depth description of the plaintiff's employment background, which includes an examination of his or her tax and social security, union and job records.
It may be necessary to consult an engineer from the forensic field or an environmental scientist to determine the source of asbestos exposure. These experts can help the defendants argue that the asbestos exposure did not occur at the workplace, but brought to the home through clothing worn by workers or air outside.
Many of the plaintiffs' lawyers will bring experts in economic loss to establish the monetary loss suffered by the victims. These experts can calculate the amount of money a person lost as a result of their illness and its impact on their lifestyle. They can also testify on expenses like the cost of medical bills and the price of hiring someone to do household chores that one is unable to do anymore.
It is essential for defendants to challenge the plaintiff's expert witnesses, especially when they have testified in dozens or even hundreds of asbestos-related claims. Experts can lose credibility before jurors if their testimony is repeated.
Plaintiffs in asbestos cases may also apply for summary judgment if they can prove that the evidence does not prove that the plaintiff suffered injuries from exposure to the defendant's product. However a judge won't accept summary judgment simply because the defendant points to gaps in the plaintiff's proof.
Trial
The delays involved in asbestos cases means that meaningful discovery can be nearly impossible. The time between exposure and disease can be measured in years. Therefore, determining the facts that will build a case requires a review of the entire work history. This involves a thorough review of the individual's tax, social security and union financial documents, as well as interviews with family members and colleagues.
Asbestos sufferers are often diagnosed with less serious illnesses such as asbestosis prior to the diagnosis of mesothelioma. Because of this, the ability of a defendant to show that the plaintiff's symptoms stem from an illness other than mesothelioma may have a significant importance in settlement negotiations.
In the past, certain attorneys employed this strategy to deny responsibility and obtain large sums. However, as the defense bar has grown and diversified, this strategy has been generally rejected by the courts. This is particularly true for federal courts, where judges routinely dismiss such claims due to the absence of evidence.
As a result, an in-depth analysis of each potential defendant is essential for a successful asbestos litigation defense. This includes assessing the duration and nature of the exposure, as and the severity of any disease that is diagnosed. For example, a carpenter who has mesothelioma is likely to be awarded more damages than a person who has only suffered from asbestosis.
The Bowles Rice Asbestos Litigation Team regularly defends product manufacturers, suppliers contractors, distributors as well as property owners and employers in asbestos-related litigation. Our lawyers have been National Trial and National Coordination Counsel and are regularly appointed as liaison counsel by courts in order to manage asbestos dockets.
Asbestos litigation can be complicated and costly. We assist our clients to be aware of the risks associated with this kind of litigation and we assist them to create internal programs that are proactive and identify safety and liability concerns. Contact us to find out how we can safeguard the interests of your business.