7 Little Changes That'll Make An Enormous Difference To Your Asbestos Litigation Defense

Asbestos Litigation Defense

Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The attorneys of the Firm regularly speak at national conferences and are proficient in the myriad issues that arise in the defense of asbestos cases, including jurisdictional Case Management Orders and expert selection.

Research has shown that asbestos exposure can cause lung damage and diseases. This includes mesothelioma and lesser diseases such as asbestosis and plaques in the pleural cavity.

Statute of limitations

In most personal injury cases statutes limit the time frame within the date a victim is able to file an action. For asbestos the statute of limitations varies by state and is different from in other personal injury claims due to the fact that asbestos-related diseases can take years 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 the case of wrongful deaths) instead of the date of exposure. This discovery rule is why victims and their families must work as quickly as they can with a reputable New York asbestos lawyer.

There are a variety of aspects to consider when filing an asbestos lawsuit. The statute of limitations is one of the most important.  Champaign asbestos lawyer  of limitations is the deadline that the victim has to start a lawsuit. Failure to file a lawsuit will result the case being thrown out. The statute of limitations differs in each state, and laws differ greatly in some states, but the majority allow between one and six years from when the victim was diagnosed with an asbestos-related illness.

In asbestos cases defendants typically use the statute of limitation as a defense against liability. They may say, for example, that plaintiffs should have been aware 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 is difficult to prove for the victim.

A defendant in an asbestos case may also argue that they didn't have the resources or means to inform people about the dangers of the product. This is a complicated argument and largely depends on the evidence available. For instance it was successfully made in California that defendants did not have "state-of-the-art" knowledge and thus could not be expected to provide adequate warnings.

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

Bare Metal

The"bare metal" defense is a standard strategy used by manufacturers of equipment in asbestos litigation. The bare metal defense asserts that because their products left the plant as bare steel, they didn't have a duty to inform about the dangers of asbestos containing materials added later by other parties, like thermal insulating and flange seals. This defense is a common one in some jurisdictions but not all.

The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the law. The Court did not accept the bright-line rule of manufacturers and instead created a standard that requires manufacturers to inform consumers when they are aware that their product is hazardous for its intended purpose. They have no reason to think that the users who purchase the product will be aware of this danger.

While this change in law may make it more difficult for plaintiffs to win claims against equipment manufacturers, it is not the end of the story. First, the DeVries decision does not apply to state-law claims that are made on the basis of negligence or strict liability and are not brought under the 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 instance, a case was remanded back to an Illinois federal judge to determine if that state recognizes this defense. The plaintiff who died in that case was a carpenter, and was exposed to switchgear and turbines at a Texaco refinery that contained asbestos-containing parts.

In a similar case in Tennessee, a Tennessee judge has indicated that he is likely to adopt the third view of bare metal defense. The plaintiff in that case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma while working on equipment that had been repaired or replaced by contractors of third party, including the Equipment Defendants. The judge in the case ruled that bare metal defenses apply to cases similar to this. The Supreme Court's decision in DeVries will affect the way judges will apply the bare-metal defense in other cases like those that involve tort claims under state law.

Defendants' Experts

Asbestos litigation is complex and requires attorneys with vast knowledge of both law and medicine as well as access to top experts. EWH attorneys have years of experience in asbestos litigation, including investigating claims, preparing strategies for managing litigation, including budgets, as well as identifying and hiring experts as well as defending plaintiffs and defendants with expert testimony in depositions and trials.

Typically asbestos cases require testimony of medical professionals like pathologists and radiologists who can testify regarding X-rays or CT scans that reveal scarring of the lung tissue typical of asbestos exposure. A pulmonologist may also testify on symptoms, like difficulty in breathing, that are similar to mesothelioma as well as other asbestos-related illnesses. Experts can provide an in-depth account of the plaintiff's work background, which includes an investigation of their tax social security and union records as well as job and employment details.

A forensic engineer or environmental science expert could be necessary to explain the reason for the asbestos exposure. These experts can help defense attorneys argue that the alleged asbestos was not exposed at work and instead was brought home on workers' clothing or from the outside air (a common defense in mesothelioma cases).

A lot of plaintiffs' lawyers will bring in economic loss experts to establish the monetary loss suffered by the victims. These experts can calculate the amount of money a person has lost due to their illness and the impact it has had on their life. They can also testify about 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 crucial for defendants to challenge the plaintiff's expert witnesses, especially in cases where they have testified in dozens or even hundreds of asbestos-related cases. Experts may lose credibility with jurors when their testimony is repeated.

In asbestos cases, defendants may also seek summary judgment when they can prove that the evidence does not prove that the plaintiff was injured by exposure to the defendant's products. However, a judge will not grant summary judgment just because the defendant points to gaps in the plaintiff's proof.

Trial

The delays involved in asbestos cases means that significant information can be almost impossible. The time between exposure and disease can be measured by decades. Therefore, determining the facts upon which to make a case requires a thorough review of a person's entire employment history. This requires a thorough examination of the individual's social security, tax, union and financial documents, as well as interviews with family members and coworkers.

Asbestos patients are more likely to develop less serious ailments like asbestosis prior to diagnosis of mesothelioma. Because of this, the ability of a defendant to show that the plaintiff's symptoms stem from an illness other than mesothelioma could be of significant value in settlement negotiations.

In the past, a few lawyers have employed this tactic to deny liability and obtain large amounts of money. However as the defense bar has grown the strategy has been generally rejected by the courts. This is particularly true for federal courts, where judges regularly dismiss claims based on the absence of evidence.

A thorough evaluation of each potential defendant is crucial to ensure a successful defense in asbestos litigation. This includes assessing the length and the nature of the exposure as well as the degree of any diagnosed illness. For instance, a worker who has mesothelioma will likely to receive higher damages than a person who only has asbestosis.

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

Asbestos cases can be complicated and expensive. We assist our clients to be aware of the risks associated with this type of litigation, and we work with them to develop internal programs that are proactive and detect liability and safety issues. Contact us to find out how we can help protect your business's interests.