25 Surprising Facts About Asbestos Litigation Defense

Asbestos Litigation Defense

Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The Firm's attorneys are regularly invited to speak at national conferences. They are also well-versed on the many issues that arise in trying to defend asbestos cases.

Research has demonstrated that asbestos exposure can cause lung disease and damage. This includes mesothelioma as and lesser diseases such as asbestosis and pleural plaques.

Statute of limitations

In most personal injury claims there is a statute that limits the time frame within the date a victim is able to make a claim. For asbestos-related cases, the statutes of limitations vary according to the state. They also differ from other personal injury lawsuits as asbestos-related illnesses can take a long time to manifest.

Due to the delay in the development of mesothelioma and other asbestos-related diseases the statute of limitations begins at the time of diagnosis (or death, in wrongful death cases) instead of the time of exposure. This discovery rule is the reason why the families of victims need to work as soon as they can with an experienced New York asbestos lawyer.

There are a myriad of aspects to consider when filing an asbestos lawsuit. One of the most important is the statute of limitations. The statute of limitations is the deadline by which the victim must file a lawsuit. In the event of a delay, it will result the lawsuit being barred. The statute of limitation differs from state to state and the laws differ greatly. However, the majority allow between one and six year after the time that the victim was diagnosed.

During an asbestos case in which the defendants are involved, they will typically attempt to invoke the statute of limitations to defend against liability. For example, they may claim that the plaintiffs knew or should have been aware of their exposure and therefore were required to inform their employer. This is an argument that is common in mesothelioma cases, and it can be difficult for the victim to prove.

A defendant in an asbestos case may also argue that they did not have the resources or the means to warn people about the dangers of the product. This is a complicated argument that relies on the evidence available. In California for instance, it was successfully claimed that defendants were not equipped with "state-ofthe-art" information and therefore could not provide adequate warnings.

Generally speaking, it is preferential to start the asbestos lawsuit in the state where the victim's home. In certain circumstances it may be appropriate to make a claim in a different state from the victim's. This usually has to do with the place of the employer or where the person was exposed to asbestos.

Bare Metal

The"bare metal" defense is a typical strategy used by equipment manufacturers in asbestos litigation. The bare-metal defense claims that, because their products left the plant as bare steel, they didn't have a duty to warn about the dangers posed by asbestos-containing materials later added by other parties, for instance thermal insulating flange seals and flange seals. This defense has been embraced in certain states, but it's not available under federal law in all states.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the law.  Sunrise asbestos lawsuit  has rejected the bright-line rule of manufacturers and instead established an obligation for manufacturers to inform consumers if they know that their product is hazardous for its intended purpose and have no reason to believe that the users who purchase the product will realize this risk.

This change in law will make it more difficult for plaintiffs to file claims against manufacturers of equipment. However, this is not the end of the road. The DeVries decision is not applicable 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 to seek a more expansive reading of the bare metal defense. In the Asbestos Multi-District Litigation of Philadelphia, for example the case was remanded back to an Illinois federal judge to determine if that state recognizes this defense. The deceased plaintiff in that claim was a carpenter, and was exposed to turbines and switchgear at a Texaco refinery that contained asbestos-containing components.

In the same case in Tennessee, a Tennessee judge has indicated that he is likely to take the third approach to the defense of bare metal. The plaintiff in the case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma after working on equipment that had been repaired or replaced by contractors of third party, including the Equipment Defendants. The judge in the case held that bare metal defenses are applicable to cases like this. The Supreme Court's decision in DeVries will influence the way judges will apply the bare-metal defense in other cases for example, those involving tort claims under state law.

Defendants' Experts

Asbestos lawsuits are complicated and require skilled attorneys with a thorough understanding of medical and legal issues as well as access to top expert witnesses. Attorneys at EWH have years of experience in assisting clients with various asbestos litigation issues, including analyzing claims, preparing strategic budgets and litigation management strategies, finding and retaining experts, and defense of defendants and plaintiffs expert testimony in deposition and at trial.

In most cases, asbestos cases require the testimony from medical professionals such as a radiologist or pathologist. They can confirm that X-rays as well as CT scans show the typical lung tissue scarring that is caused by asbestos exposure. A pulmonologist can also be a witness to symptoms like breathing difficulties, which are similar to those of mesothelioma and other asbestos-related illnesses. Experts can also provide an extensive history of the work done by the plaintiff, such as a review of job, union tax, social security records.

A forensic engineer or environmental scientist may be required to clarify the cause of the asbestos exposure. Experts in these fields can assist defendants argue that the alleged asbestos was not exposed at the workplace and instead was ingested on the clothing of workers or in the air outside (a common defense in mesothelioma cases).

Many attorneys representing plaintiffs employ experts in economic loss to determine the monetary losses suffered by the victims. These experts can calculate how much money a victim has lost due to illness and the impact it affected their life. They can also testify on expenses like the cost of medical bills and the price of hiring someone to perform household chores that a person cannot perform anymore.

It is important for defendants to challenge the expert witnesses of the plaintiff, especially in cases where they have testified in dozens or even hundreds of other asbestos-related claims. These experts can lose credibility with the jury if their testimony is repeated.

In asbestos cases, defendants can also seek summary judgement in cases where they can demonstrate that the evidence does not establish that the plaintiff suffered injury due to exposure to the defendant's products. However the judge will not give summary judgment merely because the defendant cites holes in the plaintiff's proof.

Trial

Due to the latency issues in asbestos cases, it can be difficult to make an accurate discovery. The lag between exposure and the appearance of the disease could be measured in decades. Thus, establishing the facts on which to create a case, requires a review of a person's entire employment history. This requires a thorough examination of the individual's social security, tax, union and financial records, as well as interviews with family members and coworkers.

Asbestos victims often develop less serious diseases such as asbestosis before a mesothelioma diagnosis. Because of this, the ability of a defendant to prove that the plaintiff's symptoms could be due to another 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 awards. As the defense bar evolved, courts have largely rejected this strategy. This is particularly relevant in federal courts, where judges have frequently dismissed claims based on the lack of evidence.

This is why an in-depth analysis of every potential defendant is essential to an effective asbestos defense. This includes assessing the length and extent of exposure as well as the severity of any diagnosed disease. For example a carpenter with mesothelioma is likely to be awarded more damages than someone who has only had asbestosis.

The Bowles Rice Asbestos Litigation Team regularly defends product manufacturers, suppliers contractors, distributors 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 the courts as liaison counsel to oversee the prosecution of asbestos dockets.

Asbestos cases can be complex and expensive. We assist our clients in understanding the risks involved in this type of litigation. We work with them to formulate internal programs that will detect potential safety and liability concerns. Contact us today to learn more about how our firm can protect your business's interests.