Asbestos Litigation Defense: The Ugly The Truth About Asbestos Litigat…
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Asbestos Litigation Defense
Cetrulo LLP has been widely recognized as a leader in asbestos litigation. The Firm's attorneys are regularly invited to give presentations at national conferences. They are also knowledgeable on the numerous issues that arise in trying to defend asbestos attorney cases.
Research has proven that exposure to asbestos can lead to lung damage and cause lung disease. This includes mesothelioma as well as lesser illnesses like asbestosis and pleural plaques.
Statute of Limitations
In the majority of personal injury cases the statute of limitations establishes a time limit for the length of time that follows an accident or injury the victim is able to start a lawsuit. For asbestos-related cases, the statutes of limitations vary by state. They are also different from other personal injury lawsuits as asbestos-related illnesses can take a long time to be apparent.
Due to the delayed nature mesothelioma and other asbestos lawsuits-related diseases 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 victims and their families need to work as soon as they can with an experienced New York asbestos lawyer.
When you file a asbestos lawsuit, there are a variety of things that need to be considered. 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. Failure to file a lawsuit will result in the lawsuit being barred. The statute of limitations is different from state to state and laws vary greatly. However, most states allow between one and six year after the date of diagnosis.
In asbestos cases, the defendants will often attempt to use the statute of limitations to defend against liability. For instance, they might claim that the plaintiffs knew or should have been aware of their exposure and therefore were required to inform their employer. This is a common argument in mesothelioma lawsuits and is difficult to prove for the victim.
Another defense that could be used in a asbestos case is that the defendants did not have the means or resources to warn people of the dangers associated with the product. This is a complicated argument and largely depends on the evidence that is available. For example it was successfully presented in California that defendants didn't have "state-of-the-art" knowledge and could not be expected to provide adequate warnings.
Generally speaking, it is preferential to file the asbestos lawsuit in the state where the victim's home. However, there are situations in which it might be appropriate to file the lawsuit in an alternative state. This is usually connected with the place of the employer, or the place where the worker 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 bare metal, they had no obligation to warn about the dangers of asbestos-containing substances added by other parties later like thermal insulation and flange gaskets. This defense is a common one in certain jurisdictions, but not everywhere.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the rules. The Court has ruled against the preferred rule of manufacturers' bright line rule, and instead created a new standard under which manufacturers are required to warn consumers if it is aware that its product is likely to be dangerous for its intended purposes and does not have any reason to believe that its final users will realize that risk.
This modification in law will make it more difficult for plaintiffs to bring claims against equipment manufacturers. 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 pursue a broader reading of the bare metal defense. In the Asbestos Multi-District Litigation of Philadelphia for instance the case was remanded to an Illinois federal judge to determine whether that state recognizes this defense. The plaintiff who died in this case was carpenter who was exposed to switchgear, turbines and other asbestos-containing components at an Texaco refinery.
In a similar case, a judge in Tennessee has indicated that he is likely to adopt a third view of the bare metal defense. In the case, the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed with mesothelioma. He had worked 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 can be applied to cases like this. The Supreme Court's decision in DeVries will affect the way judges will apply the bare-metal defense in other situations, such as those involving state law tort claims.
Defendants' Experts
Asbestos lawsuits are complex and require skilled lawyers with a thorough understanding of medical and legal issues, as well as access to top expert witnesses. The attorneys at EWH have decades of experience helping clients in a variety of asbestos litigation issues, including analyzing claims, preparing strategic budgets and litigation management strategies, hiring and retaining experts and defending defendants' and plaintiffs expert testimony during depositions and in court.
Typically, asbestos cases will require the testimony from medical professionals like a radiologist or pathologist. They can testify that X-rays and CT scans reveal the typical lung tissue scarring that is caused by asbestos exposure. A pulmonologist could also testify regarding symptoms, such as difficulty in breathing, that are similar to mesothelioma and other asbestos-related illnesses. Experts can also provide full details of the work performed by the plaintiff, which includes a review of employment, union, tax, and social security records.
A forensic engineer or environmental science expert may 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 the workplace and was instead brought home on workers' clothing or from the outside air (a common defense in mesothelioma cases).
Many attorneys representing plaintiffs employ economic loss experts to calculate the financial losses suffered by the victims. They can estimate the amount of money a person suffered due to their illness and its impact on their daily life. They can also testify about expenses such as medical bills and the cost of hiring someone to perform household chores a person is no longer able to do.
It is crucial for defendants to challenge plaintiff's expert witnesses, especially in cases where they've given evidence in dozens, or hundreds of asbestos-related claims. Experts can lose credibility with the jury if their testimony is repeated.
In asbestos cases, defendants may also request summary judgment if they can show that the evidence does not prove that the plaintiff suffered injury due to exposure to the defendant's products. However the judge will not accept summary judgment simply because the defendant cites weaknesses in the plaintiff's evidence.
Trial
The latency issues involved in asbestos cases means that an accurate diagnosis can be nearly impossible. The time between exposure and the onset of the disease can be measured in decades. To determine the facts on which to build a claim it is essential to examine an individual's employment history. This typically involves a thorough analysis of social security, union, tax, and financial records, as well as interviews with co-workers and family members.
Asbestos-related victims are often diagnosed with less serious illnesses like asbestosis before a mesothelioma diagnosis. Due to this the capacity of a defendant to demonstrate that a plaintiff's symptoms might be caused by a different disease other than mesothelioma can be beneficial in settlement negotiations.
In the past, some attorneys have used this strategy to deny liability and get large sums. As the defense bar evolved, courts have largely rejected this approach. This has been particularly true in the federal courts, where judges have often dismissed claims due to the absence of evidence.
An in-depth analysis of each potential defendant is therefore essential to ensure a successful defense in asbestos litigation. This involves evaluating the severity and length of the illness as well as the type of the exposure. For instance, a carpenter who has mesothelioma may be awarded more damages than someone who has only suffered from asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation for product manufacturers suppliers and distributors contractors, employers, and property owners. Our lawyers have years of experience in the role of National Trial and National Coordinating Counsel, and are regularly appointed by courts as liaison counsel to manage the prosecution of asbestos dockets.
Asbestos litigation can be complicated and costly. We help our clients to understand the risks involved in this type of litigation, and we assist them to create internal programs that will proactively identify liability and safety concerns. Contact us today to learn more about how our company can protect your business's interests.
Cetrulo LLP has been widely recognized as a leader in asbestos litigation. The Firm's attorneys are regularly invited to give presentations at national conferences. They are also knowledgeable on the numerous issues that arise in trying to defend asbestos attorney cases.
Research has proven that exposure to asbestos can lead to lung damage and cause lung disease. This includes mesothelioma as well as lesser illnesses like asbestosis and pleural plaques.
Statute of Limitations
In the majority of personal injury cases the statute of limitations establishes a time limit for the length of time that follows an accident or injury the victim is able to start a lawsuit. For asbestos-related cases, the statutes of limitations vary by state. They are also different from other personal injury lawsuits as asbestos-related illnesses can take a long time to be apparent.
Due to the delayed nature mesothelioma and other asbestos lawsuits-related diseases 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 victims and their families need to work as soon as they can with an experienced New York asbestos lawyer.
When you file a asbestos lawsuit, there are a variety of things that need to be considered. 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. Failure to file a lawsuit will result in the lawsuit being barred. The statute of limitations is different from state to state and laws vary greatly. However, most states allow between one and six year after the date of diagnosis.
In asbestos cases, the defendants will often attempt to use the statute of limitations to defend against liability. For instance, they might claim that the plaintiffs knew or should have been aware of their exposure and therefore were required to inform their employer. This is a common argument in mesothelioma lawsuits and is difficult to prove for the victim.
Another defense that could be used in a asbestos case is that the defendants did not have the means or resources to warn people of the dangers associated with the product. This is a complicated argument and largely depends on the evidence that is available. For example it was successfully presented in California that defendants didn't have "state-of-the-art" knowledge and could not be expected to provide adequate warnings.
Generally speaking, it is preferential to file the asbestos lawsuit in the state where the victim's home. However, there are situations in which it might be appropriate to file the lawsuit in an alternative state. This is usually connected with the place of the employer, or the place where the worker 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 bare metal, they had no obligation to warn about the dangers of asbestos-containing substances added by other parties later like thermal insulation and flange gaskets. This defense is a common one in certain jurisdictions, but not everywhere.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the rules. The Court has ruled against the preferred rule of manufacturers' bright line rule, and instead created a new standard under which manufacturers are required to warn consumers if it is aware that its product is likely to be dangerous for its intended purposes and does not have any reason to believe that its final users will realize that risk.
This modification in law will make it more difficult for plaintiffs to bring claims against equipment manufacturers. 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 pursue a broader reading of the bare metal defense. In the Asbestos Multi-District Litigation of Philadelphia for instance the case was remanded to an Illinois federal judge to determine whether that state recognizes this defense. The plaintiff who died in this case was carpenter who was exposed to switchgear, turbines and other asbestos-containing components at an Texaco refinery.
In a similar case, a judge in Tennessee has indicated that he is likely to adopt a third view of the bare metal defense. In the case, the plaintiff was a Tennessee Eastman Chemical Plant mechanic who was diagnosed with mesothelioma. He had worked 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 can be applied to cases like this. The Supreme Court's decision in DeVries will affect the way judges will apply the bare-metal defense in other situations, such as those involving state law tort claims.
Defendants' Experts
Asbestos lawsuits are complex and require skilled lawyers with a thorough understanding of medical and legal issues, as well as access to top expert witnesses. The attorneys at EWH have decades of experience helping clients in a variety of asbestos litigation issues, including analyzing claims, preparing strategic budgets and litigation management strategies, hiring and retaining experts and defending defendants' and plaintiffs expert testimony during depositions and in court.
Typically, asbestos cases will require the testimony from medical professionals like a radiologist or pathologist. They can testify that X-rays and CT scans reveal the typical lung tissue scarring that is caused by asbestos exposure. A pulmonologist could also testify regarding symptoms, such as difficulty in breathing, that are similar to mesothelioma and other asbestos-related illnesses. Experts can also provide full details of the work performed by the plaintiff, which includes a review of employment, union, tax, and social security records.
A forensic engineer or environmental science expert may 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 the workplace and was instead brought home on workers' clothing or from the outside air (a common defense in mesothelioma cases).
Many attorneys representing plaintiffs employ economic loss experts to calculate the financial losses suffered by the victims. They can estimate the amount of money a person suffered due to their illness and its impact on their daily life. They can also testify about expenses such as medical bills and the cost of hiring someone to perform household chores a person is no longer able to do.
It is crucial for defendants to challenge plaintiff's expert witnesses, especially in cases where they've given evidence in dozens, or hundreds of asbestos-related claims. Experts can lose credibility with the jury if their testimony is repeated.
In asbestos cases, defendants may also request summary judgment if they can show that the evidence does not prove that the plaintiff suffered injury due to exposure to the defendant's products. However the judge will not accept summary judgment simply because the defendant cites weaknesses in the plaintiff's evidence.
Trial
The latency issues involved in asbestos cases means that an accurate diagnosis can be nearly impossible. The time between exposure and the onset of the disease can be measured in decades. To determine the facts on which to build a claim it is essential to examine an individual's employment history. This typically involves a thorough analysis of social security, union, tax, and financial records, as well as interviews with co-workers and family members.
Asbestos-related victims are often diagnosed with less serious illnesses like asbestosis before a mesothelioma diagnosis. Due to this the capacity of a defendant to demonstrate that a plaintiff's symptoms might be caused by a different disease other than mesothelioma can be beneficial in settlement negotiations.
In the past, some attorneys have used this strategy to deny liability and get large sums. As the defense bar evolved, courts have largely rejected this approach. This has been particularly true in the federal courts, where judges have often dismissed claims due to the absence of evidence.
An in-depth analysis of each potential defendant is therefore essential to ensure a successful defense in asbestos litigation. This involves evaluating the severity and length of the illness as well as the type of the exposure. For instance, a carpenter who has mesothelioma may be awarded more damages than someone who has only suffered from asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation for product manufacturers suppliers and distributors contractors, employers, and property owners. Our lawyers have years of experience in the role of National Trial and National Coordinating Counsel, and are regularly appointed by courts as liaison counsel to manage the prosecution of asbestos dockets.
Asbestos litigation can be complicated and costly. We help our clients to understand the risks involved in this type of litigation, and we assist them to create internal programs that will proactively identify liability and safety concerns. Contact us today to learn more about how our company can protect your business's interests.
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