How To Beat Your Boss 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 when asbestos litigation, including jurisdictional Case Management Orders and expert selection.

Research has shown that asbestos exposure causes lung damage and disease. This includes mesothelioma, and lesser diseases such as asbestosis and pleural plaques.

Statute of Limitations

In the majority of personal injury cases, a statute of limitation establishes a time limit for the length of time that follows an accident or injury the victim is allowed to file an action. In asbestos cases, the statute of limitations differs according to the state. They are also different from other personal injury claims because asbestos-related diseases can take years to be apparent.

Due to the delaying nature of mesothelioma and other asbestos-related diseases, the statute of limitations clock begins at the date of diagnosis (or death, in wrongful death cases) rather than at the time of exposure. This discovery rule is the reason why victims and their families should seek out as soon as they can with an experienced New York asbestos lawyer.

There are a variety of aspects to consider when making an asbestos lawsuit. The statute of limitations is one of the most important. This is the time limit that the victim has to file the lawsuit by, and failing to do so could cause the case to be dismissed. 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 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 a common argument in mesothelioma lawsuits, and it can be difficult to prove for the victim.

Another defense that could be used in an asbestos case is that the defendants didn't have the means or resources to inform the public about the dangers of the product. This is a complicated case and depends largely on the available evidence. In California, for example it was argued that the defendants lacked "state-ofthe-art" information and therefore could not provide adequate warnings.

In general, it is best to start an asbestos lawsuit in the state in which the victim lives. However, there are circumstances in which it might make sense to file the lawsuit in another state. It usually has to do with be related to the location of the employer or the place where the employee 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 claims that, because their products left the plant as bare steel, they did not have a duty to inform about the dangers posed by asbestos-containing materials later added by other parties, such as thermal insulating seals and flanges. This defense is accepted in some jurisdictions, but not all.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries has reshaped that. The Court did not accept the manufacturers' preferred bright line rule, and instead, an entirely new standard that states that a manufacturer has a duty to warn consumers if it is aware that its integrated product will be harmful for its intended use and does not have any reason to believe that the end customers will be aware of the risk.

While this change in law may make it harder for plaintiffs to win claims against manufacturers of equipment, it's not the end of the story. First, the DeVries decision is not applicable to state-law claims that are based on negligence or strict liability and are not brought under the federal maritime law statutes, including the Jones Act or the Maritime Claims Act.

Plaintiffs will continue to pursue a broader reading of the bare metal defense. In the Asbestos Multi-District Litigation in Philadelphia for instance, a case was remanded to an Illinois federal judge to determine if that state recognizes this defense. The deceased plaintiff in that claim was a carpenter who was exposed to switchgear and turbines in a Texaco refinery that contained asbestos-containing components.

In the same case in Tennessee, the Tennessee judge has indicated that he is likely to take the third approach to the defense of bare metal. In that case, the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed with mesothelioma. He worked on equipment that was repaired or replaced by third-party contractors, including Equipment Defendants. The judge in the case ruled that bare-metal defenses can be applied to cases like this. The Supreme Court's decision in DeVries will influence the way judges apply the bare metal defense in other situations, such as those involving tort claims brought under state law.

Defendants' Experts

Asbestos litigation is complex and requires attorneys with deep medical and legal knowledge as well as access to top experts. Attorneys at EWH have years of experience in assisting clients with various asbestos litigation cases, such as investigating claims, preparing strategic budgets and plans for managing litigation as well as finding and retaining experts, and defending plaintiffs' and defendants expert testimony in deposition and during trial.

Typically asbestos cases require the testimony of medical professionals, such as pathologists and radiologists who can testify about X-rays or CT scans that reveal the lung tissue being damaged that is typical of asbestos exposure. A pulmonologist can also be a witness to symptoms like breathing difficulties, which are similar to symptoms of mesothelioma and other asbestos-related illnesses. Experts can provide a thorough report of the plaintiff's job background, which includes an analysis of their tax social security documents, union and job information.

A forensic engineering or environmental science expert could be required to clarify the reason for the asbestos exposure. These experts can help defendants 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 attorneys representing plaintiffs hire economic loss experts to calculate the financial losses suffered by the 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 on expenses like medical bills and the cost of hiring someone else to complete household chores a person cannot perform.

It is important that plaintiffs challenge defendants experts, particularly when they have testified to hundreds or dozens of asbestos claims. Experts can lose credibility with jurors when their testimony is repeated.

In asbestos cases, defendants can also request summary judgment if they show that the evidence doesn't establish that the plaintiff was injured caused by their exposure to the defendant's product. A judge won't give summary judgment just because a defendant points out weaknesses in the plaintiff's evidence.

Trial

The latency issues involved in asbestos cases mean that obtaining meaningful discovery can be nearly impossible. The time between exposure and the onset of disease can be measured in years. To establish the facts on which to build an argument it is essential to look over an individual's job history. This often involves a thorough review of social security and tax records, union and financial records, as well as interviews with co-workers and family members.

Tustin asbestos lawsuits  develop less serious ailments like asbestosis prior to the diagnosis of mesothelioma. Because of this the capacity of a defendant to prove that the plaintiff's symptoms could be caused by a different disease other than mesothelioma can be beneficial in settlement negotiations.

In the past, certain lawyers have employed this method to avoid responsibility and receive large sums. However, as the defense bar has evolved and diversified, this strategy has been largely rejected by the courts. This is especially true in federal courts, where judges routinely reject such claims due to lack of evidence.

A thorough evaluation of each potential defendant is essential to be able to defend effectively in asbestos litigation. This includes assessing the length and the nature of the exposure, as well as the severity of any diagnosed disease. For instance, a woodworker who has mesothelioma will likely to suffer greater 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 lawyers have extensive experience in the role of National Trial and National Coordinating Counsel, and are regularly appointed by courts as liaison counsel to handle the prosecution of asbestos dockets.

Asbestos litigation can be complicated and costly. We help our clients be aware of the risks associated with this type of litigation and we collaborate with them to create internal programs that are proactive and detect liability and safety issues. Contact us to learn how we can protect the interests of your business.