10 Things You Learned From Kindergarden That'll Help You With 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 knowledgeable in the myriad issues that arise when asbestos litigation such as jurisdictional Case Management Orders and expert selection.

Research has demonstrated that asbestos exposure can cause lung damage and cause lung disease. This includes mesothelioma, and lesser illnesses like asbestosis and plaques in the pleural cavity.

Statute of Limitations

In most personal injury cases statutes limit the time period after which a victim may file an action. For asbestos, the statute of limitations is different by state and is different from in other personal injury claims because the symptoms of asbestos-related diseases can take years to manifest.

Due to the delayed nature mesothelioma as well as other asbestos-related diseases the statute of limitations begins on the date of diagnosis or death in wrongful death cases instead of the date of exposure. This discovery rule is why the families of victims must work as quickly as they can with an experienced New York asbestos lawyer.

There are a variety of factors to consider when making an asbestos lawsuit. The statute of limitations is among the most crucial. The statute of limitations is the deadline by which the victim must start a lawsuit. Failure to file a lawsuit could result in the case being barred. The statute of limitations varies from state to state, and the laws vary greatly. However, most allow between one and six years after the time that the victim was diagnosed.

In asbestos cases, the defendants will often try to use the statute of limitations as a defense against liability. For example, they may claim that the plaintiffs knew or should have been aware of their exposure and thus had a duty to notify their employer. This is an argument that is common in mesothelioma cases and isn't easy for the plaintiff to prove.

Another possible defense in a case involving asbestos is that the defendants did not have the means or resources to warn of the dangers of the product. This is a complex case and depends largely on the evidence available. In California, for example, it was successfully argued that the defendants lacked "state-ofthe-art" information and could not be expected to provide sufficient warnings.

In general, it is recommended to file the asbestos lawsuit within the state of the victim's residence. In some cases it might be beneficial to bring a lawsuit in a different state from the victim's. It 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 strategy used by equipment manufacturers in asbestos litigation. The bare metal defense argues that since their products left the plant in bare steel, they didn't have a responsibility to warn about the dangers posed by asbestos containing materials added later by other parties, like thermal insulating seals and flanges. This defense is accepted in a few states, but it's not a federally-approved option in all states.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the law. The Court rejected the manufacturers' preferred bright line rule, and instead created a new standard under which manufacturers are required to warn if it knows that its integrated product will be harmful for the purpose it was designed for and does not have any reason to believe that the end users will realize that risk.

Although this change in law could make it harder for plaintiffs to win claims against equipment manufacturers, it is not the end of the tale. 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 reading of the bare metal defense. In the Asbestos Multi-District Litigation of Philadelphia for instance the case was remanded back to an Illinois federal judge to determine if the state recognizes this defense. The plaintiff who died in that case was a carpenter who was exposed to switchgear and turbines at an Texaco refinery which contained asbestos-containing components.

In a similar case in Tennessee, a Tennessee judge has indicated that he is likely to take the third approach to the defense of bare metal. In the 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 the case held that bare metal defenses apply to cases like this. The Supreme Court's DeVries decision will influence how judges apply the bare-metal defense in other cases.

Defendants' Experts

Asbestos lawsuits are complex and require skilled attorneys with a thorough understanding of medical and legal issues, as well as access to top expert witnesses. EWH attorneys have decades of experience in asbestos litigation, which includes investigating claims, creating litigation management plans and strategic budgets, identifying and bringing in experts as well as defending plaintiffs and defendants with expert testimony in trials and depositions.

Typically asbestos cases require testimony of medical professionals like a radiologist and pathologist who can testify about X-rays or CT scans that reveal the lung tissue being damaged typical of asbestos exposure. A pulmonologist could also testify regarding symptoms, such as breathing difficulties, which are similar to mesothelioma and other asbestos-related diseases. Experts can also provide detailed history of work performed by the plaintiff, which includes a review of job, union, tax, and social security documents.

A forensic engineering or environmental scientist may be required to explain 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 workers' clothing or from the outside air (a common defense in mesothelioma cases).

how asbestos litigation take  will bring experts in economic loss to assess 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 impact it affected their life. They can also testify on expenses such as medical bills as well as the cost of hiring a person to take care of household chores that one can no longer perform.

It is important for defendants to challenge experts of the plaintiff, particularly in cases where they have been called to testify in dozens or hundreds of other asbestos-related claims. Experts can lose credibility with jurors when their testimony is repeated.

Defendants in asbestos cases can also seek summary judgment if they can demonstrate that the evidence doesn't prove that the plaintiff suffered any injuries caused by their exposure to the defendant's product. A judge is not likely to issue a summary judgment merely because a defendant has pointed out weaknesses in the plaintiff's evidence.

Going to Trial

The issues of latency in asbestos cases mean that obtaining an accurate diagnosis can be nearly impossible. The lag between exposure and the appearance of the disease could be measured in decades. To determine the facts upon which to build a case it is important to examine an individual's employment history. This usually involves an exhaustive analysis of social security, union, tax, and financial records as along with interviews with coworkers and family members.

Asbestos sufferers are often diagnosed with less serious illnesses such as asbestosis prior to a mesothelioma diagnose. Because of this, the ability of a defendant to show that a plaintiff's symptoms may be caused by a different disease than mesothelioma is valuable in settlement negotiations.

In the past, certain attorneys have used this strategy to deny liability and get large awards. As the defense bar evolved, courts have largely rejected this strategy. This has been particularly relevant in federal courts where judges have frequently dismissed claims based on the lack of evidence.

An in-depth analysis of each potential defendant is therefore essential to be able to defend effectively in asbestos litigation. This includes evaluating both the severity and length of the disease and the extent of the exposure. For example, a woodworker who has mesothelioma is likely to suffer more damage than someone who has asbestosis.

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

Asbestos litigation can be complicated and expensive. We assist our clients to understand the potential risks associated with this type of litigation. We work with them to formulate internal programs that will identify potential safety and liability concerns. Contact us today to learn more about how our firm can safeguard your company's interests.