5 Laws Anybody Working In Asbestos Litigation Defense Should Be Aware Of
Asbestos Litigation Defense
Cetrulo LLP has been widely recognized as a leader in asbestos litigation. The attorneys of the Firm regularly speak at national conferences and are well-versed in the myriad of issues that arise in asbestos litigation that include jurisdictional Case Management Orders and expert selection.
Research has proven that exposure to asbestos causes lung damage and diseases. This includes mesothelioma as well as lesser diseases such as asbestosis and pleural plaques.
Statute of limitations
In the majority of personal injury claims there is a statute that limits the time limit within which a victim may file an action. For asbestos-related cases, the statute of limitations differs according to the state. They are also different from other personal injury lawsuits because asbestos-related diseases can take a long time to manifest.
Due to the delaying nature of mesothelioma as well as other asbestos-related diseases and other asbestos-related illnesses, the statute of limitations begins on the date of diagnosis or death in wrongful death claims, rather than the date exposure. This discovery rule is the reason why the families of victims must work as quickly as they can with a reputable New York asbestos lawyer.
There are a variety of aspects to take into consideration when filing an asbestos lawsuit. One of the most important is the statute of limitations. This is the time limit which the victim must submit the lawsuit by, and failure to file a lawsuit by the deadline will cause the case to be dismissed. The time limit for filing a lawsuit differs from state to state, and the laws vary greatly. However, most allow between one and six year after the time that the victim was diagnosed.
In an asbestos case, defendants often use the statute of limitation as a defense to liability. They may say for instance that plaintiffs should have been aware or had knowledge of their asbestos exposure and had a duty of notification to their employer. This is a common argument in mesothelioma lawsuits and it can be difficult to prove for the victim.
A defendant in a case involving asbestos could also argue that they did not have the resources or the means to warn people about the dangers of the product. This is a complex argument that is largely based on the evidence that is available. In California, for example it was argued that the defendants lacked "state-ofthe-art" information and therefore could not give adequate warnings.
In general, it's better to make an asbestos lawsuit in the state in which the victim resides. However, there are situations in which it might make sense to file the lawsuit in an alternative state. This is usually to do with the location of the employer or the place where the employee was first exposed to asbestos.
Bare Metal
The"bare metal" defense is a standard strategy used by manufacturers of equipment in asbestos litigation. It argues that since their products were manufactured as bare metal, they had no obligation to warn of the dangers of asbestos-containing substances that were added by other parties later like thermal insulation and gaskets for flanges. This defense is recognized in some jurisdictions but not all.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the law. Hartford asbestos attorney has rejected manufacturers' preferred bright-line rule and instead formulated the standard that requires manufacturers to inform consumers if they know that their product is dangerous for its intended use and have no reason to believe that the end users will be aware of this risk.
This modification 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. For one reason, the DeVries decision is not applicable to state-law claims that are made on the basis of negligence or strict liability and are not covered under federal maritime law statutes, like the Jones Act or the Maritime Claims Act.
Plaintiffs will continue to pursue a wider interpretation of the bare metal defense. In the Asbestos Multi District Litigation in Philadelphia, for example the case was remanded back to an Illinois federal judge to determine if that state recognizes this defense. The plaintiff who died in the case was a carpenter, and was exposed to switchgear and turbines at an Texaco refinery which contained asbestos-containing components.
In the same case in Tennessee, an Tennessee judge has indicated that he will adopt the third view of the defense of bare-metal. In that case the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed as having mesothelioma. He had worked on equipment that was repaired or replaced by third-party contractors, which included Equipment Defendants. The judge in that case ruled that the bare-metal defense is applicable to cases such as this. The Supreme Court's decision in DeVries will have an impact on how judges will apply the bare-metal defense in other cases for example, those involving state law tort claims.
Defendants' Experts
Asbestos litigation is complex and require skilled lawyers with a deep knowledge of both legal and medical issues, as well as access to top experts. Attorneys at EWH have decades of experience helping clients in a variety of asbestos litigation matters including investigating claims, preparing strategic budgets and litigation management plans in hiring and retaining experts and defending defendants' and plaintiffs expert testimony during deposition and during trial.
Typically asbestos cases require the testimony of medical professionals such as pathologists and radiologists who testify on X-rays or CT scans that show scarring of the lung tissue that is typical of asbestos exposure. A pulmonologist may be able to testify about symptoms, like breathing problems, which are similar to mesothelioma as well as other asbestos-related illnesses. Experts can provide a thorough description of the plaintiff's employment history, including an investigation of their tax and social security and union records as well as job and employment details.
A forensic engineer or environmental scientist may be required to clarify the reason for the asbestos exposure. Experts from these fields can assist defendants to argue that asbestos exposure did not occur at the workplace, but brought into the home through the clothing of workers or by airborne particles.
Many of the plaintiffs lawyers will bring experts in economic loss to establish the monetary losses incurred by the victims. These experts can calculate how much money a victim has lost due to illness and the impact it has had on their life. They can also testify about costs like medical bills and the cost of hiring someone to perform household chores that a person is no longer able to complete.
It is important that defendants challenge plaintiffs experts, particularly if they have testified on hundreds or dozens of asbestos claims. If they repeat their testimony, these experts may lose credibility among jurors.
Plaintiffs in asbestos cases may also apply for summary judgment if they show that the evidence does not prove that the plaintiff was injured due to their exposure to the defendant's product. However a judge won't give summary judgment merely because the defendant has pointed out holes in the plaintiff's proof.
Trial
The issues of latency in asbestos cases mean that getting an accurate diagnosis can be nearly impossible. The duration between exposure and illness can be measured in decades. To establish the facts on which to build a claim, it is necessary to review an individual's work background. This involves a thorough review of the individual's social security, tax and union records, as well as financial records, as well as interviews with family members and colleagues.
Asbestos-related victims are often diagnosed with less serious diseases like asbestosis prior to a mesothelioma diagnosis. Because of this, the ability of a defendant to prove that the plaintiff's symptoms could be due to a different illness than mesothelioma is valuable in settlement negotiations.
In the past, certain attorneys have used this approach to deny responsibility and obtain large awards. However as the defense bar has evolved and diversified, this strategy has been largely rejected by the courts. This has been particularly true in the federal courts where judges have often dismissed claims based on the lack of evidence.
As a result, an in-depth analysis of each potential defendant is essential for an effective asbestos defense. This includes assessing the duration and nature of the exposure, as and the severity of any disease that is diagnosed. For example, a woodworker who has mesothelioma is likely to receive higher damage than someone who 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 been appointed as National Trial and National Coordination Counsel and are frequently appointed as liaison counsel by courts to manage asbestos dockets.
Asbestos litigation can be complex and expensive. We help our clients recognize the risks involved in this kind of litigation and we work with them to create internal programs that will proactively identify safety and liability concerns. Contact us to learn how we can help protect your business's interests.