Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The firm’s lawyers regularly participate in national conferences and are proficient in the myriad of issues that arise when the defense of asbestos cases, including jurisdictional Case Management Orders and expert selection.
Research has proven that asbestos exposure can cause 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 claims there is a statute that limits the time frame within the date a victim is able to file an action. In asbestos cases, the statute of limitations differs according to the state. They also differ from other personal injury claims as asbestos-related illnesses can take a long time to develop.
Due to the delaying nature of mesothelioma, and other asbestos-related illnesses, the statute of limitation begins at the time of diagnosis, or death in wrongful death cases, rather than the date exposure. This discovery rule is the reason why victims and their families need to work as soon as they can with an experienced New York asbestos lawyer.
When making an asbestos lawsuit, there are a variety of factors that must be taken into account. One of the most important is the statute of limitations. This is the deadline that the victim must file the lawsuit by, and failure to do so could result in the case being closed. The statute of limitation is different from state to state and the laws differ widely. However, most states allow between one and six year after the victim was diagnosed.
In an asbestos case defendants frequently use the statute of limitation as a defense to liability. They may say, for example, that the plaintiffs should have known or were aware of their exposure to asbestos and that they had a duty of notification to their employer. This is a common argument used in mesothelioma lawsuits. It it can be difficult to prove for the victim.
Another defense that could be used in an asbestos case is that the defendants did not have the resources or means to inform the public about the dangers associated with the product. This is a complicated argument that relies on the evidence available. In California, for example it was claimed that defendants were not equipped with “state-ofthe-art” information and were not able to to provide sufficient warnings.
Generally speaking, it is preferential to file the asbestos lawsuit in the state of the victim’s home. However, there are certain situations in which it might be beneficial to file the lawsuit in a different state. It usually has to do with relate to where the employer is located or where the person was first exposed to asbestos.
Bare Metal
The bare metal defense is a typical strategy used by manufacturers of equipment in asbestos litigation. It states that since their products left the factory as bare metal, they had no obligation to warn about the dangers of asbestos-containing materials that were added by other parties at a later date for example, thermal insulation and gaskets for flanges. This defense is a common one in certain jurisdictions, but not everywhere.
The Supreme Court’s ruling in Air & Liquid Sys. Corp. v. DeVries has altered the law. The Court did not accept the bright-line rule that manufacturers prefer and instead established an obligation for manufacturers to inform consumers when they know that their integrated product is unsafe for its intended purpose and have no reason to think that the end users will be aware of this danger.
Although this change in law may make it harder for plaintiffs to prevail in claims against equipment manufacturers, it is not the end of the story. The DeVries decision is not applicable to state law claims based on strict liability or asbestos Litigation defense negligence, and therefore not brought under federal maritime law statutes like the Jones Act.
Plaintiffs will continue to pursue a wider reading of the bare metal defense. For example in the asbestos MDL in Philadelphia, a case has been remanded to an Illinois federal court to determine whether that state recognizes the defense. The plaintiff who died in that case was a carpenter, and was exposed to turbines and switchgear at an Texaco refinery that contained asbestos-containing parts.
In a similar case a judge in Tennessee has indicated 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 with mesothelioma. He was employed 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 is applicable to cases similar to this. The Supreme Court’s DeVries decision will influence how judges apply the bare metal defense in other contexts.
Defendants’ Experts
Asbestos lawsuits are complex and require skilled lawyers with a thorough understanding of medical and legal issues as well as access to expert witnesses of the highest caliber. EWH attorneys have years of experience in asbestos litigation, such as investigating claims, creating litigation management plans and strategic budgets, identifying and bringing in experts and defending plaintiffs as well as defendants with expert testimony in depositions and trials.
In most cases, asbestos litigation online cases require the testimony from medical professionals like a radiologist or pathologist. They can testify that X-rays and CT scans reveal the typical scarring of lung tissue due to asbestos exposure. A pulmonologist can be able to testify about symptoms, like difficulty in breathing, that are similar to mesothelioma and other asbestos-related illnesses. Experts can also provide full details of the work performed by the plaintiff, which includes a review of employment, union, tax, and social security records.
It could be necessary to consult an engineer who is forensic or an environmental scientist in order to determine the cause of exposure to asbestos law and litigation. These experts can help the defendants argue that the asbestos exposure did not occur at the workplace, but was brought to the home through clothing worn by workers or air outside.
A lot of plaintiffs lawyers will bring experts in economic loss to determine the financial losses incurred by the victims. They can determine the amount of money a person has lost due to their illness and the impact it has had on their life. They can also testify on expenses like the cost of medical bills and the price of hiring someone to do household chores that a person cannot perform anymore.
It is crucial that defendants challenge plaintiffs’ expert witnesses, particularly if they have testified on dozens or hundreds of asbestos claims. If they repeat their testimony, these experts may lose credibility among jurors.
In asbestos cases, defendants can also apply for summary judgment if they demonstrate that the evidence doesn’t prove that the plaintiff was injured due to their exposure to the defendant’s product. A judge will not grant summary judgement just because a defendant points out holes in the plaintiff’s proof.
Trial
The issues of latency in asbestos class action litigation cases mean that getting significant information can be almost impossible. The time between exposure and the appearance of the disease can be measured in decades. Therefore, determining the facts upon which to create a case, will require a thorough examination of the entire work history. This includes a thorough analysis of the individual’s tax, social security and union financial records, as well as interviews with family members and co-workers.
Asbestos victims often develop less serious diseases such as asbestosis before a mesothelioma diagnosis. Because of this, a defendant’s ability to demonstrate that plaintiff’s symptoms are due to another disease than mesothelioma can have significant significance in settlement negotiations.
In the past, certain attorneys have employed this strategy to deny liability and obtain large amounts of money. As the defense bar grew, courts have largely rejected this method. This is especially true in federal courts, where judges routinely dismiss claims based on lack of evidence.
An in-depth analysis of each potential defendant is crucial to be able to defend effectively in asbestos litigation. This includes assessing the severity and duration of the disease as well as the nature of the exposure. For instance carpenters with mesothelioma is likely to be awarded more damages than a person who has only had asbestosis.
The Bowles Rice Asbestos Litigation Team regularly defends suppliers, manufacturers contractors, distributors 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 regularly appointed as liaison counsel by courts to manage asbestos dockets.
Asbestos litigation can be complex and expensive. We assist our clients to be aware of the risks associated with this kind of litigation and we collaborate with them to develop internal programs that will proactively identify liability and safety concerns. Contact us today to learn more about how we can protect your company’s interests.