Asbestos Litigation Defense
Cetrulo LLP has been widely recognized as a leader in asbestos litigation. The Firm's attorneys are regularly invited to give presentations at national conferences. They are also knowledgeable on the many issues that arise when defending asbestos cases.
Research has shown that exposure to asbestos can cause lung diseases and damage. This includes mesothelioma as other lesser illnesses like asbestosis and plaques in the pleural cavity.
Statute of limitations
In most personal injury cases, a statute of limitations defines a time frame for the time after an injury or accident, the victim is able to start a lawsuit. For asbestos the statute of limitations differs by state and is different than in other personal injury claims due to the fact that asbestos-related diseases can take a long time to manifest.
Due to the delay in the development of mesothelioma as well as other asbestos-related diseases, the statute of limitations clock begins at the date of diagnosis (or death in wrongful death cases) instead of the time of exposure. This discovery rule is why the victims and their families should consult an experienced New York mesothelioma lawyer as soon as possible.
There are many factors to consider when making an asbestos lawsuit. The statute of limitations is one of the most crucial. The statute of limitations is the time limit that the victim has to file a lawsuit. Failure to do so will result in the lawsuit being barred. The statute of limitation varies from state to state and laws differ widely. However, most states allow between one and six year after the time that the victim was diagnosed.
In an asbestos-related case when the defendants often attempt to invoke the statute of limitations as a defense against liability. They could argue that, for instance, the plaintiffs should have known or knew about their exposure to asbestos and that they had an obligation to notify their employer. This is a common argument in mesothelioma lawsuits, and is difficult to prove for the victim.
A defendant in an asbestos case could also argue that they didn't have the resources or the means to warn about the dangers of the product. This is a complex argument that relies on the evidence available. For instance it has been successfully presented in California that the defendants did not have "state-of-the-art" knowledge and thus could not be expected to give adequate warnings.
In general, it is best to file an asbestos lawsuit in the state where the victim resides. However, there are some situations in which it might make sense to file the lawsuit in an alternative state. This usually has something to be related to where the employer is located 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 asserts that, because their products left the factory in bare steel, they didn't have a duty to warn about the dangers posed by asbestos-containing products later added by other parties, for instance thermal insulating and flange seals. This defense has been accepted in some areas, but it is not a federally-approved option in all states.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries has reshaped that. The Court did not accept the bright-line rule of manufacturers and instead created a standard that requires manufacturers to inform consumers when they know that their integrated product is dangerous for its intended purpose. They there is no reason to believe that the users who purchase the product will be aware of the risk.
Although this change in law could make it more difficult for plaintiffs to bring claims against equipment manufacturers, it is not the end of the story. The DeVries decision does not apply to state-law claims that are based on strict liability or negligence and not brought under federal maritime law statutes, such as the Jones Act.
Plaintiffs will continue pursuing an expanded interpretation of the defense of bare metal. For example, in the Asbestos MDL in Philadelphia, a case has been remanded to an Illinois federal court to decide whether the state is able to recognize the defense. The deceased plaintiff in this claim was carpenter who was exposed to switchgear, turbines and other asbestos-containing components at the Texaco refining facility.
In a similar instance, a judge in Tennessee has signaled that he will take a different approach to the defense of bare metal. 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 third-party contractors, including the Equipment Defendants. The judge in that case held that the bare metal defense applies to cases like this. The Supreme Court's decision in DeVries will affect 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 lawyers with a vast knowledge of both law and medicine and access to top experts. EWH attorneys have years of experience in asbestos litigation, such as investigating claims, preparing strategies for managing litigation, including budgets, identifying and hiring experts, and defending plaintiffs and defendants with expert testimony in trials and depositions.
Typically asbestos cases require the testimony of medical professionals, such as a radiologist and pathologist who testify on X-rays or CT scans that show scarring of the lung tissue typical of asbestos exposure. A pulmonologist may also testify about symptoms such as difficulty breathing, 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 investigation of their tax and social security and union records as well as job and employment details.
A forensic engineering or environmental science expert could be necessary to explain the source of the asbestos exposure. These experts can help defense attorneys argue that the asbestos exposure did not occur at the workplace, but was brought into the home through the clothing of workers or air outside.
A lot of plaintiffs' lawyers employ experts in economic loss to calculate the financial loss suffered by victims. These experts can calculate how much money a victim has lost due to their disease and the impact it has had on their life. They can also testify on expenses like medical bills and the cost of hiring someone to do household chores that a person is unable to perform.
It is essential that defendants challenge the plaintiffs' expert witnesses, particularly when they have testified to dozens or hundreds of other asbestos claims. These experts can lose credibility with the jury if their testimony is repeated.
In asbestos cases, defendants can also seek summary judgment if they prove that the evidence does not show that the plaintiff suffered any injuries caused by their exposure to the defendant's product. However a judge won't grant summary judgment just because the defendant has pointed out gaps in the plaintiff's proof.
Trial
Due to the latency issues involved in asbestos cases, it is difficult to make an accurate discovery. The time between exposure and the onset of disease can be measured in decades. To determine the facts on which to base an argument it is important to look over an individual's job background. This usually involves an exhaustive review of social security as well as tax, union and financial records as along with interviews with coworkers and family members.
Asbestos victims often develop less serious illnesses like asbestosis before a mesothelioma diagnosis. Because of this, a defendant's ability to demonstrate that plaintiff's symptoms stem from an illness other than mesothelioma can have significant significance in settlement negotiations.
In the past, certain attorneys employed this strategy to deny responsibility and obtain large amounts of money. However, as the defense bar has evolved and diversified, this strategy has been largely rejected by the courts. This has been particularly evident in federal courts where judges have often dismissed claims based on the lack of evidence.
Because of this, an in-depth analysis of each potential defendant is essential for a successful asbestos litigation defense. Youngstown asbestos lawyer includes assessing the duration and extent of exposure, as and the degree of any diagnosed illness. For instance, a woodworker who has mesothelioma will likely to receive higher damage than someone who has asbestosis.
The Bowles Rice Asbestos Litigation Team regularly defends suppliers, manufacturers contractors, distributors as well as property owners and employers in asbestos related litigation. Our lawyers have years of experience as National Trial and National Coordinating Counsel, and are regularly appointed by courts as liaison counsel to handle the prosecution of asbestos dockets.
Asbestos cases can be complex and costly. We help our clients understand the potential risks associated with this type of litigation. We collaborate with them to develop internal programs designed to proactively identify potential liability and safety issues. Contact us today to find out more about how our company can protect your business's interests.