Asbestos Litigation Defense
Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. Yakima asbestos attorney are frequently invited to speak at national conferences. They are also knowledgeable in the myriad of issues that arise in litigating asbestos cases.
Research has proven that exposure to asbestos can lead to lung diseases and damage. This includes mesothelioma and lesser illnesses like asbestosis and plaques in the pleural cavity.
Statute of Limitations
In the majority of personal injury claims, a statute limits the time period after the date a victim is able to file a claim. In asbestos cases, the statutes of limitations differ according to the state. They are also different from other personal injury claims as asbestos-related illnesses can take years to develop.
Due to the delay in the development of mesothelioma and asbestos-related diseases, the statute of limitations begins at the time of diagnosis (or death, in cases of wrongful death) instead of the time of exposure. This discovery rule is that victims and their families need to work as soon as they can with a reputable New York asbestos lawyer.
There are a variety of factors to consider when making an asbestos lawsuit. One of the most important is the statute of limitations. This is the time limit that the victim must submit the lawsuit by, and failure to file the lawsuit could cause the case to be dismissed. The statute of limitations differs by state, and the laws vary greatly, but most allow for between one and six years from when the victim was diagnosed with an asbestos-related disease.
During an asbestos case, the defendants will often try to use the statute of limitations as a defense against liability. For instance, they might claim that the plaintiffs knew or ought to have known about their exposure, and therefore had a legal obligation to inform their employer. This is an argument that is common in mesothelioma litigation and it isn't easy for the plaintiff to prove.
A defendant in an asbestos case could be able to claim that they didn't have the resources or means to warn people about the dangers of the product. This is a complex argument that relies on the evidence available. In California for instance it was argument that defendants did not have "state-ofthe-art" information and could not be expected give adequate warnings.
In general, it's better to make an asbestos lawsuit in the state in which the victim lives. In certain circumstances, it may make sense to file a lawsuit in a different state from the victim's. This is usually connected with the location of the employer or the place where the worker was exposed to asbestos.
Bare Metal
The bare-metal defense is a strategy that equipment manufacturers use in asbestos litigation. The bare metal defense argues that since their products left the plant as bare steel, they didn't have a duty to warn about the dangers posed by asbestos containing materials added later by other parties, such as thermal insulating seals and flanges. This defense has been embraced in certain jurisdictions, but it is not available under federal law in all states.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed that. The Court did not accept the manufacturers' preferred bright line rule, and instead created the new standard under which a manufacturer has a duty to inform consumers if they know that its product will be dangerous for its intended purposes and does not have any reason to believe that the end users will be aware of that risk.
This modification in law will make it more difficult plaintiffs to bring claims against manufacturers of equipment. However this isn't the end of the road. 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 seek a more expansive understanding of the bare-metal defense. For instance, in the Asbestos MDL in Philadelphia, a case has been remanded back to an Illinois federal court to determine whether the state is able to recognize the defense. The plaintiff who died in this case was a carpenter who had been exposed to switchgear, turbines, and other asbestos-containing parts at an Texaco refining facility.
In a similar case in Tennessee, an Tennessee judge has indicated that he is likely to adopt the third perspective of the defense of bare-metal. 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 which included the Equipment Defendants. The judge in that case ruled that the bare metal defense applies to cases similar to this. The Supreme Court's DeVries decision will affect the way judges apply the bare metal defense in other situations.
Defendants' Experts
Asbestos litigation is complex and require experienced lawyers who have a thorough understanding of medical and legal issues, as well as access to top experts. The attorneys at EWH have decades of experience in assisting clients with various asbestos litigation cases, such as investigating claims, developing strategic budgets and litigation management strategies as well as finding and retaining experts, and defending plaintiffs' and defendants' expert testimony during deposition and during trial.
Typically, asbestos cases require the testimony of medical professionals, such as a radiologist and pathologist who can testify about X-rays or CT scans that show scarring of the lung tissue typical of asbestos exposure. A pulmonologist could be able to testify about symptoms, such as breathing problems, which are similar to mesothelioma and other asbestos-related illnesses. Experts can provide a detailed description of the plaintiff's employment history, including an analysis of their tax, social security, union and job records.
A forensic engineering or environmental science expert could be required to explain the cause of the asbestos exposure. Experts in these fields can assist defense attorneys argue that the alleged asbestos was not exposed at work and was instead brought home on the clothing of workers or from the outside air (a common defense in mesothelioma cases).
A lot of plaintiffs lawyers will call experts from the field to establish the monetary losses suffered by the victims. They can determine how much money a victim has lost due to their illness and the effect it had on his or her life. They can also testify on expenses such as medical bills and the cost of hiring someone else to complete household chores that an individual is unable to do.
It is essential for defendants to challenge plaintiff's expert witnesses, especially in cases where they've given evidence in dozens, or hundreds of other asbestos-related claims. If they repeat their testimony, these experts could lose credibility with jurors.
In asbestos cases, defendants can also apply for summary judgment if they can prove that the evidence doesn't prove that the plaintiff suffered any injuries due to their exposure to the defendant's product. A judge will not grant summary judgement just because a defendant has pointed out gaps in the plaintiff’s proof.
Going to Trial
The issues of latency in asbestos cases mean that obtaining meaningful discovery can be nearly impossible. The duration between exposure and illness can be measured by decades. To establish the facts on which to build a claim it is important to examine an individual's employment background. This requires a thorough examination of the individual's tax, social security and union records, as well as financial documents, as well as interviews with family members and coworkers.
Asbestos-related victims are often diagnosed with less serious illnesses like asbestosis before a mesothelioma diagnosis. Because of this, a defendant's ability to prove that a plaintiff's symptoms stem from another disease than mesothelioma can have significant importance in settlement negotiations.
In the past, some lawyers have employed this tactic to deny liability and get large sums. As the defense bar grew, courts have generally resisted this method. This is particularly true for federal courts, where judges regularly dismiss such claims due to the absence of evidence.
An in-depth analysis of each potential defendant is crucial for a successful defense in asbestos litigation. This includes evaluating the severity and duration of the illness as well as the type of the exposure. For instance, a worker who has mesothelioma will likely to suffer more damages than a person who only has 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 extensive experience serving as National Trial and National Coordinating Counsel. They are frequently appointed by courts as liaison counsel to handle the prosecution of asbestos dockets.
Asbestos cases can be complicated and costly. We help our clients recognize the risks involved in this type of litigation, and we assist them to develop internal programs that can identify safety and liability concerns. Contact us today to find out more about how our firm can safeguard your company's interests.