The 10 Most Infuriating Asbestos Litigation Defense FAILS Of All Time …
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Asbestos Litigation Defense
Cetrulo LLP is widely recognized as a leading expert in asbestos litigation defense. The attorneys of the Firm regularly speak at national conferences and are knowledgeable in the myriad issues that arise when defending asbestos cases such as jurisdictional Case Management Orders and expert selection.
Research has proven that exposure to asbestos lawyers causes lung damage and disease. This includes mesothelioma, and lesser diseases such as asbestosis and plaques in the pleural cavity.
Statute of Limitations
In the majority of personal injury claims there is a statute that limits the time limit within the date a victim is able to make an action. For asbestos the statute of limitations is different by state and is different from in other personal injury lawsuits due to the fact that asbestos-related illnesses can take decades to manifest.
Due to the delaying nature of mesothelioma and other asbestos attorney-related diseases and other asbestos-related illnesses, the statute of limitations begins at the time of diagnosis, or death in wrongful death cases rather than the date of exposure. This discovery rule is the reason victims and their family members should consult an experienced New York mesothelioma lawyer as early as is possible.
When you file a asbestos lawsuit, there are many things that need to be taken into account. The statute of limitations is one of the most important. This is the time limit that the victim must make a claim by, and failure to do so could result in the case being closed. The statute of limitation differs from state to state and the laws differ widely. However, most states allow between one and six years after the victim was diagnosed.
During an asbestos case when the defendants often attempt to use the statute of limitations to defend against liability. They may say that, for instance, plaintiffs should have been aware or knew about their exposure to asbestos and were under the obligation of notifying their employer. This is an argument that is common in mesothelioma lawsuits and it isn't easy for the victim to prove.
Another possible defense in a case involving asbestos is that the defendants did not have the resources or means to inform the public about the dangers of the product. This is a complicated case and relies on the evidence available. In California, for example it was argued that the defendants lacked "state-ofthe-art" information and were not able to provide adequate warnings.
Generally, it is best to file the asbestos lawsuit in the state where the victim's residence. However, there are some situations in which it might make sense to file the lawsuit in a different state. This usually has something to do with the location of the employer or the place where the employee was first exposed to asbestos.
Bare Metal
The defense of bare metal is a tactic used by equipment manufacturers in asbestos litigation. The bare metal defense argues that, because their products left the factory as untreated steel, they did not have a duty to inform about the dangers posed by asbestos-containing materials later added by other parties, like thermal insulating flange seals and flange seals. This defense is accepted in a few states, but it's not available under federal law in all states.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the rules. The Court did not accept the manufacturers' preferred bright line rule and instead created a new standard under which manufacturers have a responsibility to inform consumers if they know that its product will be harmful for its intended use and does not have any reason to believe that the end users will be aware of that risk.
This change in law makes it more difficult for plaintiffs to bring claims against manufacturers of equipment. However this isn't the end of the road. For one reason, the DeVries decision does not apply to state-law claims that are based on negligence or strict liability and are not brought under the federal maritime law statutes, including the Jones Act or the Maritime Claims Act.
Plaintiffs will continue to pursue a broader interpretation of the bare-metal defense. For instance in the Asbestos MDL in Philadelphia the case has been remanded back to an Illinois federal court to decide whether the state is able to recognize the defense. The deceased plaintiff in that claim was a carpenter who was exposed to turbines and switchgear at a Texaco refinery that contained asbestos-containing components.
In a similar case in Tennessee, a Tennessee judge has indicated that he is likely to adopt the third view of the defense of bare-metal. The plaintiff in the case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma following working on equipment that had been repaired or replaced by contractors from third parties including the Equipment Defendants. The judge in the case decided that the bare metal defense is applicable to cases such as this. The Supreme Court's DeVries decision will influence how judges apply the bare-metal defense in other contexts.
Defendants' Experts
Asbestos litigation is a complex affair and requires lawyers with a deep medical and legal knowledge, as well as accessing experts of the highest caliber. Attorneys at EWH have years of experience assisting clients in various asbestos litigation cases, such as investigating claims, preparing strategic budgets and litigation management plans as well as hiring and retaining experts and defense of defendants and plaintiffs' expert testimony during depositions and in court.
Typically asbestos cases require testimony of medical professionals such as pathologists and radiologists who can testify about X-rays or CT scans that reveal the lung tissue being damaged that is typical of asbestos exposure. A pulmonologist is also able to provide evidence of symptoms, such as difficulty breathing, which are similar to those of mesothelioma and other asbestos attorney-related illnesses. Experts can provide a detailed description of the plaintiff's employment history, including an investigation of their tax, social security and union records as well as job and employment details.
It may be necessary to consult an engineer who is forensic or an environmental scientist to determine the source of 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 air outside (a common defense in mesothelioma cases).
Many of the plaintiffs' lawyers will bring experts in economic loss to determine the financial losses suffered by the victims. They can determine the amount of money a person has lost due to illness and the impact it has had on their life. They can also testify about expenses like medical bills and the cost of hiring someone to do household chores that the person is unable to do anymore.
It is important for defendants to challenge the experts of the plaintiff, particularly in cases where they've been called to testify in dozens or hundreds of other asbestos attorneys-related claims. If they repeat their testimony, these experts may lose credibility with jurors.
In asbestos cases, defendants may also seek summary judgement in cases where they can demonstrate that the evidence doesn't show that the plaintiff suffered injury due to exposure to the defendant's products. However a judge won't accept summary judgment simply because the defendant cites holes in the plaintiff's proof.
Trial
The issues of latency in asbestos attorney cases mean that obtaining an accurate diagnosis can be nearly impossible. The time between exposure and the onset of disease can be measured in years. To determine the facts upon which to base an argument it is essential to examine an individual's employment background. This usually involves an exhaustive examination of social security as well as tax, union, and financial records as in interviews with co-workers and family members.
Asbestos-related victims are often diagnosed with less serious diseases such as asbestosis before a mesothelioma diagnosis. Due to this, the ability of a defendant to demonstrate that the plaintiff's symptoms could be due to a different illness other than mesothelioma can be beneficial in settlement negotiations.
In the past, some attorneys have used this strategy to avoid liability and receive large awards. However as the defense bar has evolved, this approach has been generally rejected by the courts. This is particularly true in federal courts, where judges regularly dismiss claims based on lack of evidence.
Because of this, a careful evaluation of each potential defendant is essential for a successful asbestos litigation defense. This includes assessing the severity and duration of the illness as well as the nature of the exposure. For example, a woodworker who has mesothelioma is likely to suffer greater damage than someone who 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 extensive experience serving as National Trial and National Coordinating Counsel, and are frequently appointed by courts as liaison counsel to manage the prosecution of asbestos dockets.
Asbestos litigation can be complicated and expensive. We help our clients be aware of the risks associated with this type of litigation, and we assist them to create internal programs that are proactive and identify liability and safety concerns. Contact us today to learn more about how we can protect your company's interests.
Cetrulo LLP is widely recognized as a leading expert in asbestos litigation defense. The attorneys of the Firm regularly speak at national conferences and are knowledgeable in the myriad issues that arise when defending asbestos cases such as jurisdictional Case Management Orders and expert selection.
Research has proven that exposure to asbestos lawyers causes lung damage and disease. This includes mesothelioma, and lesser diseases such as asbestosis and plaques in the pleural cavity.
Statute of Limitations
In the majority of personal injury claims there is a statute that limits the time limit within the date a victim is able to make an action. For asbestos the statute of limitations is different by state and is different from in other personal injury lawsuits due to the fact that asbestos-related illnesses can take decades to manifest.
Due to the delaying nature of mesothelioma and other asbestos attorney-related diseases and other asbestos-related illnesses, the statute of limitations begins at the time of diagnosis, or death in wrongful death cases rather than the date of exposure. This discovery rule is the reason victims and their family members should consult an experienced New York mesothelioma lawyer as early as is possible.
When you file a asbestos lawsuit, there are many things that need to be taken into account. The statute of limitations is one of the most important. This is the time limit that the victim must make a claim by, and failure to do so could result in the case being closed. The statute of limitation differs from state to state and the laws differ widely. However, most states allow between one and six years after the victim was diagnosed.
During an asbestos case when the defendants often attempt to use the statute of limitations to defend against liability. They may say that, for instance, plaintiffs should have been aware or knew about their exposure to asbestos and were under the obligation of notifying their employer. This is an argument that is common in mesothelioma lawsuits and it isn't easy for the victim to prove.
Another possible defense in a case involving asbestos is that the defendants did not have the resources or means to inform the public about the dangers of the product. This is a complicated case and relies on the evidence available. In California, for example it was argued that the defendants lacked "state-ofthe-art" information and were not able to provide adequate warnings.
Generally, it is best to file the asbestos lawsuit in the state where the victim's residence. However, there are some situations in which it might make sense to file the lawsuit in a different state. This usually has something to do with the location of the employer or the place where the employee was first exposed to asbestos.
Bare Metal
The defense of bare metal is a tactic used by equipment manufacturers in asbestos litigation. The bare metal defense argues that, because their products left the factory as untreated steel, they did not have a duty to inform about the dangers posed by asbestos-containing materials later added by other parties, like thermal insulating flange seals and flange seals. This defense is accepted in a few states, but it's not available under federal law in all states.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries changed the rules. The Court did not accept the manufacturers' preferred bright line rule and instead created a new standard under which manufacturers have a responsibility to inform consumers if they know that its product will be harmful for its intended use and does not have any reason to believe that the end users will be aware of that risk.
This change in law makes it more difficult for plaintiffs to bring claims against manufacturers of equipment. However this isn't the end of the road. For one reason, the DeVries decision does not apply to state-law claims that are based on negligence or strict liability and are not brought under the federal maritime law statutes, including the Jones Act or the Maritime Claims Act.
Plaintiffs will continue to pursue a broader interpretation of the bare-metal defense. For instance in the Asbestos MDL in Philadelphia the case has been remanded back to an Illinois federal court to decide whether the state is able to recognize the defense. The deceased plaintiff in that claim was a carpenter who was exposed to turbines and switchgear at a Texaco refinery that contained asbestos-containing components.
In a similar case in Tennessee, a Tennessee judge has indicated that he is likely to adopt the third view of the defense of bare-metal. The plaintiff in the case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma following working on equipment that had been repaired or replaced by contractors from third parties including the Equipment Defendants. The judge in the case decided that the bare metal defense is applicable to cases such as this. The Supreme Court's DeVries decision will influence how judges apply the bare-metal defense in other contexts.
Defendants' Experts
Asbestos litigation is a complex affair and requires lawyers with a deep medical and legal knowledge, as well as accessing experts of the highest caliber. Attorneys at EWH have years of experience assisting clients in various asbestos litigation cases, such as investigating claims, preparing strategic budgets and litigation management plans as well as hiring and retaining experts and defense of defendants and plaintiffs' expert testimony during depositions and in court.
Typically asbestos cases require testimony of medical professionals such as pathologists and radiologists who can testify about X-rays or CT scans that reveal the lung tissue being damaged that is typical of asbestos exposure. A pulmonologist is also able to provide evidence of symptoms, such as difficulty breathing, which are similar to those of mesothelioma and other asbestos attorney-related illnesses. Experts can provide a detailed description of the plaintiff's employment history, including an investigation of their tax, social security and union records as well as job and employment details.
It may be necessary to consult an engineer who is forensic or an environmental scientist to determine the source of 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 air outside (a common defense in mesothelioma cases).
Many of the plaintiffs' lawyers will bring experts in economic loss to determine the financial losses suffered by the victims. They can determine the amount of money a person has lost due to illness and the impact it has had on their life. They can also testify about expenses like medical bills and the cost of hiring someone to do household chores that the person is unable to do anymore.
It is important for defendants to challenge the experts of the plaintiff, particularly in cases where they've been called to testify in dozens or hundreds of other asbestos attorneys-related claims. If they repeat their testimony, these experts may lose credibility with jurors.
In asbestos cases, defendants may also seek summary judgement in cases where they can demonstrate that the evidence doesn't show that the plaintiff suffered injury due to exposure to the defendant's products. However a judge won't accept summary judgment simply because the defendant cites holes in the plaintiff's proof.
Trial
The issues of latency in asbestos attorney cases mean that obtaining an accurate diagnosis can be nearly impossible. The time between exposure and the onset of disease can be measured in years. To determine the facts upon which to base an argument it is essential to examine an individual's employment background. This usually involves an exhaustive examination of social security as well as tax, union, and financial records as in interviews with co-workers and family members.
Asbestos-related victims are often diagnosed with less serious diseases such as asbestosis before a mesothelioma diagnosis. Due to this, the ability of a defendant to demonstrate that the plaintiff's symptoms could be due to a different illness other than mesothelioma can be beneficial in settlement negotiations.
In the past, some attorneys have used this strategy to avoid liability and receive large awards. However as the defense bar has evolved, this approach has been generally rejected by the courts. This is particularly true in federal courts, where judges regularly dismiss claims based on lack of evidence.
Because of this, a careful evaluation of each potential defendant is essential for a successful asbestos litigation defense. This includes assessing the severity and duration of the illness as well as the nature of the exposure. For example, a woodworker who has mesothelioma is likely to suffer greater damage than someone who 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 extensive experience serving as National Trial and National Coordinating Counsel, and are frequently appointed by courts as liaison counsel to manage the prosecution of asbestos dockets.
Asbestos litigation can be complicated and expensive. We help our clients be aware of the risks associated with this type of litigation, and we assist them to create internal programs that are proactive and identify liability and safety concerns. Contact us today to learn more about how we can protect your company's interests.
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