It's The Ugly The Truth About Asbestos Litigation Defense

Asbestos Litigation Defense

Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The firm's lawyers are frequently invited to give presentations at national conferences. They are also knowledgeable on the numerous issues that arise in defending asbestos cases.

Arlington Heights asbestos attorney  has shown that exposure to asbestos can cause lung diseases and damage. This includes mesothelioma as well as lesser diseases like asbestosis and plaques in the pleural cavity.

Statute of limitations

In most personal injury cases, a statute of limitations establishes a time limit for how long after an accident or injury the victim is able to start an action. In asbestos cases, statutes of limitations vary by state. They also differ from other personal injury claims as asbestos-related illnesses can take years to manifest.

Due to the delayed nature mesothelioma and other asbestos-related diseases the statute of limitations begins at the time of diagnosis or death in wrongful death claims instead of the date of exposure. This discovery rule is why victims and their family members must consult an experienced New York mesothelioma lawyer as early as is possible.

When you file a asbestos lawsuit, there are a variety of aspects that must be considered. The statute of limitations is among the most important. This is the time limit which the victim must submit the lawsuit by, and failing to file a lawsuit by the deadline could cause the case to be barred. The statute of limitation differs from state to state, and the laws differ widely. However, most allow between one and six year after the time that the victim was diagnosed.

In asbestos cases, defendants often make use of the statute of limitations 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 were under a duty of notification to their employer. This is a common defense in mesothelioma lawsuits and can be difficult to prove for the victim.

Another defense that could be used in a case involving asbestos is that the defendants did not have the means or resources to warn of the dangers posed by the product. This is a complex case and depends largely on the evidence available. In California for instance it was argued that the defendants lacked "state-ofthe-art" information and were not able to give adequate warnings.

In general, it is best to file an asbestos lawsuit in the state in which the victim resides. In some cases it may be appropriate to bring a lawsuit in a different state than the victim's. This usually has to do with the location of the employer, or where the person was exposed to asbestos.

Bare Metal

The"bare metal" defense is a common strategy employed by manufacturers of equipment in asbestos litigation. It asserts that because their products left the factory as unfinished metal, they had no obligation to warn of the dangers of asbestos-containing products added by other parties later like thermal insulation and gaskets for flanges. This defense is accepted in some jurisdictions but not in all.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries has altered the law. The Court rejected the manufacturers' preferred bright line rule, and instead created the new standard under which manufacturers are required to inform consumers if they know that its integrated product will be dangerous for the purpose it was designed for and does not have any reason to believe that its end users will be aware of that risk.

While this change in law could 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 which are based on strict liability, or negligence and not brought under federal maritime law statutes, such as the Jones Act.

Plaintiffs will continue to pursue a wider understanding of the bare-metal defense. In the Asbestos Multi-District Litigation in Philadelphia, for example the 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 at a Texaco refinery that contained asbestos-containing components.

In a similar case, a judge in Tennessee has indicated that he is likely to adopt a third view of the bare-metal defense. The plaintiff in that case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma after working on equipment that was repaired or replaced by contractors from third parties including the Equipment Defendants. The judge in the case decided that the bare metal defense applies to cases like this. The Supreme Court's DeVries decision will affect the way judges apply the bare-metal defense in other situations.

Defendants' Experts

Asbestos litigation is complex and requires lawyers with vast knowledge of both law and medicine as well as access to top experts. EWH attorneys EWH have decades of experience helping clients in various asbestos litigation issues, including analyzing claims, developing strategic budgets and litigation management plans, finding and retaining experts, and defense of defendants and plaintiffs expert testimony during deposition and during trial.

In most cases, asbestos cases require the testimony of medical professionals such as a radiologist or pathologist. They can testify that X-rays and CT scans reveal the typical lung tissue scarring that is due to asbestos exposure. A pulmonologist can also testify on symptoms, like breathing difficulties, which are similar to mesothelioma and other asbestos-related illnesses. Experts can provide a detailed description of the plaintiff's employment history, including an investigation of their tax, social security, union and job records.

It could be necessary to consult a forensic engineer or an environmental scientist to determine the cause of exposure to asbestos. These experts can help defense attorneys argue that the alleged asbestos was not exposed at the workplace and instead was brought home through clothing worn by workers or from the outside air (a common defense in mesothelioma cases).

Many plaintiffs' lawyers will bring experts in economic loss to determine the financial loss suffered by the victims. These experts can calculate how much money a victim has lost due to their illness and the effect it had on his or her life. They can also testify to expenses like medical bills and the cost of hiring someone else to complete household chores a person is no longer able to do.

It is crucial that plaintiffs challenge defendants' expert witnesses, particularly when they have testified to hundreds or even hundreds of other asbestos claims. Experts may lose credibility with jurors when their testimony is repeated.

In asbestos cases, defendants can also request summary judgment if they can show that the evidence does not establish that the plaintiff was injured by exposure to the defendant's products. However, a judge will not give summary judgment merely because the defendant has pointed out holes in the plaintiff's proof.

Trial

Due to the latency issues that are prevalent in asbestos cases, it can be difficult to make an accurate discovery. The time between exposure and the onset of disease can be measured in decades. To determine the facts upon which to build an argument, it is necessary to look over an individual's job background. This requires a thorough examination of the individual's social security, tax and union records, as well as financial records, as well as interviews with family members and coworkers.

Asbestos-related victims are often diagnosed with less serious diseases like asbestosis before being diagnosed with mesothelioma. Because of this, a defendant's ability to demonstrate that plaintiff's symptoms stem from an illness other than mesothelioma may have a significant importance in settlement negotiations.

In the past, some attorneys have used this strategy to deny liability and obtain large sums. However, as the defense bar has evolved, this approach is generally rejected by the courts. This is particularly relevant in federal courts, where judges have routinely dismissed such claims based on lack of evidence.

As a result, a careful evaluation of every potential defendant is essential for an effective asbestos litigation defense. This includes assessing the length and the nature of the exposure as in addition to the degree of any diagnosed illness. For example, a woodworker who has mesothelioma will likely to receive higher damages than someone who only has asbestosis.

The Bowles Rice Asbestos Litigation Team regularly defends suppliers, manufacturers contractors, distributors, property owners, and employers in asbestos-related litigation. Our attorneys have served as National Trial and National Coordination Counsel and are regularly appointed as liaison counsel by courts to handle asbestos dockets.

Asbestos litigation can be complex and costly. We help our clients to understand the risks involved in this kind of litigation and we collaborate with them to develop internal programs that will proactively identify safety and liability concerns. Contact us today to learn more about how our firm can protect your company's interests.