Why No One Cares About Asbestos Litigation Defense
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Asbestos Litigation Defense
Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The attorneys of the Firm are regularly invited to present at national conferences. They are also well-versed on the many issues that arise in defending asbestos cases.
Research has shown that asbestos exposure can cause lung damage and disease. This includes mesothelioma and lesser illnesses like asbestosis and plaques in the pleural cavity.
Statute of limitations
In the majority of personal injury cases, a statute of limitation sets a deadline for the time after an injury or accident, the victim is allowed to file an action. In asbestos cases, the statutes of limitations differ according to the state. They also differ from other personal injury claims as asbestos-related illnesses can take years to develop.
Due to the delay in the development of mesothelioma and other asbestos-related diseases, the statute of limitation clock starts on the date of diagnosis or death in wrongful death claims, rather than the date exposure. This discovery rule is why the families of victims should seek out as soon as they can with an experienced New York asbestos lawyer.
When making an asbestos lawsuit, there are many aspects that must be taken into account. The statute of limitations is one of the most crucial. This is the date that the victim has to submit the lawsuit by, and failing to do so could cause the case to be dismissed. The time limit for filing a lawsuit varies in each state, and laws vary greatly, but most allow for between one and six years from when the victim was diagnosed with an asbestos lawyer-related illness.
In asbestos cases defendants frequently employ the statute of limitations as a defense to liability. They could argue for instance that plaintiffs should have been aware or knew about their exposure to asbestos and were under a duty of notification to their employer. This is a common argument in mesothelioma lawsuits, and is difficult to prove for the victim.
Another possible defense in an asbestos case is that the defendants didn't have the means or resources to warn of the dangers posed by the product. This is a complicated argument that is largely based 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 provide adequate warnings.
In general, it's better to make an asbestos lawsuit in the state in which the victim lives. However, there are certain circumstances where it may make sense to file the lawsuit in a different state. This is usually to do with where the employer is located or the place where the employee was first exposed to asbestos.
Bare Metal
The bare metal defense is a common strategy employed by equipment manufacturers in asbestos litigation. It states that since their products left the factory as bare metal, they had no obligation to warn consumers of the dangers of asbestos-containing materials that were added by other parties at a later date like thermal insulation and gaskets for flanges. This defense is accepted in a few jurisdictions, but it is not permitted under federal law in all states.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries has reshaped that. The Court has ruled against the preferred rule of manufacturers' bright line rule and instead, the new standard under which a manufacturer has a duty to warn consumers if it is aware that its product will be dangerous for the purpose it was designed for and has no reason to believe that its final users will be aware of that risk.
This modification in law will make it more difficult for plaintiffs to file claims against manufacturers of equipment. However it's not the end. The DeVries decision is not applicable to state-law claims that are based on strict liability or negligence, and therefore not brought under federal maritime law statutes, such as the Jones Act.
Plaintiffs will continue pursuing a broader interpretation of the defense of bare metal. For instance, in the Asbestos MDL in Philadelphia, a case was remanded to an Illinois federal court to decide 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 a Texaco refinery.
In a similar case a judge in Tennessee has signaled that he will take a different view of the defense of bare metal. The plaintiff in that case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma following working on equipment that was repaired or replaced by third-party contractors which included the Equipment Defendants. The judge in the case decided that the bare metal defense applies to cases similar to this. The Supreme Court's decision in DeVries will affect the way judges use the bare metal defense in other cases for example, those involving state law tort claims.
Defendants' Experts
Asbestos lawsuits are complicated and require experienced lawyers with a deep knowledge of both legal and medical issues and access to top expert witnesses. EWH attorneys EWH have decades of experience helping clients in various asbestos litigation matters including investigating claims, preparing strategic budgets and litigation management strategies, finding and retaining experts, and defending defendants' and plaintiffs expert testimony during deposition and during trial.
Typically asbestos cases require the testimony of medical professionals like a radiologist and pathologist who testify on X-rays or CT scans that reveal scarring of the lung tissue that is typical of asbestos exposure. A pulmonologist is also able to provide evidence of symptoms, such as difficulty breathing that are similar to those of mesothelioma and other asbestos-related illnesses. Experts can provide a thorough account of the plaintiff's work background, including an analysis of their tax and social security documents, union and job information.
A forensic engineer or environmental scientist may be necessary to explain the cause of the asbestos exposure. These experts can help plaintiffs argue that the asbestos was not exposed in the workplace and instead was ingested on the clothing of workers or in the air outside (a common defense in mesothelioma cases).
A lot of plaintiffs' lawyers employ economic loss experts to assess the financial loss suffered by victims. These experts will be able to determine how much money a victim has lost due to their disease and the impact it has had on their life. They can also testify about expenses like medical bills and the price of hiring someone to perform household chores that a person can no longer perform.
It is essential for defendants to challenge expert witnesses of the plaintiff, especially in cases where they've testified in dozens or even hundreds of asbestos-related claims. If they repeat their testimony, these experts may lose credibility with jurors.
In asbestos cases, defendants can also seek summary judgment in cases where they can demonstrate that the evidence does NOT prove that the plaintiff was injured due to exposure to the products of the defendant. A judge is not likely to give summary judgment just because a defendant points out holes in the plaintiff's proof.
Going to Trial
Due to the latency issues involved in asbestos cases, it is difficult to make a significant discovery. The duration between exposure and illness can be measured by decades. To determine the facts upon which to build a case, it is necessary to review an individual's work background. This requires a thorough examination of the individual's tax, social security and union financial records, as well as interviews with family members and coworkers.
Asbestos sufferers are more likely to develop less serious diseases like asbestosis prior to a mesothelioma diagnosis. Due to this the capacity of a defendant to show that a plaintiff's symptoms might be due to another disease than mesothelioma is valuable in settlement negotiations.
In the past, certain lawyers employed this strategy to avoid responsibility and receive large sums. However, as the defense bar has evolved the strategy is generally rejected by the courts. This is particularly true in federal courts, where judges regularly dismiss such claims due to the absence of evidence.
This is why an in-depth analysis of each potential defendant is essential to a successful asbestos litigation defense. This involves evaluating the severity and length of the disease as well as the type of the exposure. For instance a carpenter with mesothelioma may be awarded higher damages than someone who has only had asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation for product manufacturers, distributors and suppliers, contractors, employers, and property owners. Our lawyers have years of experience as National Trial and National Coordinating Counsel. They are frequently appointed by the courts as liaison counsel to handle the prosecution of asbestos dockets.
Asbestos litigation can be complex and expensive. We help our clients to understand the risks involved in this kind of litigation and we assist them to create internal programs that are proactive and identify liability and safety concerns. Contact us to find out how we can protect the interests of your business.
Cetrulo LLP has been widely acknowledged as a pioneer in asbestos litigation. The attorneys of the Firm are regularly invited to present at national conferences. They are also well-versed on the many issues that arise in defending asbestos cases.
Research has shown that asbestos exposure can cause lung damage and disease. This includes mesothelioma and lesser illnesses like asbestosis and plaques in the pleural cavity.
Statute of limitations
In the majority of personal injury cases, a statute of limitation sets a deadline for the time after an injury or accident, the victim is allowed to file an action. In asbestos cases, the statutes of limitations differ according to the state. They also differ from other personal injury claims as asbestos-related illnesses can take years to develop.
Due to the delay in the development of mesothelioma and other asbestos-related diseases, the statute of limitation clock starts on the date of diagnosis or death in wrongful death claims, rather than the date exposure. This discovery rule is why the families of victims should seek out as soon as they can with an experienced New York asbestos lawyer.
When making an asbestos lawsuit, there are many aspects that must be taken into account. The statute of limitations is one of the most crucial. This is the date that the victim has to submit the lawsuit by, and failing to do so could cause the case to be dismissed. The time limit for filing a lawsuit varies in each state, and laws vary greatly, but most allow for between one and six years from when the victim was diagnosed with an asbestos lawyer-related illness.
In asbestos cases defendants frequently employ the statute of limitations as a defense to liability. They could argue for instance that plaintiffs should have been aware or knew about their exposure to asbestos and were under a duty of notification to their employer. This is a common argument in mesothelioma lawsuits, and is difficult to prove for the victim.
Another possible defense in an asbestos case is that the defendants didn't have the means or resources to warn of the dangers posed by the product. This is a complicated argument that is largely based 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 provide adequate warnings.
In general, it's better to make an asbestos lawsuit in the state in which the victim lives. However, there are certain circumstances where it may make sense to file the lawsuit in a different state. This is usually to do with where the employer is located or the place where the employee was first exposed to asbestos.
Bare Metal
The bare metal defense is a common strategy employed by equipment manufacturers in asbestos litigation. It states that since their products left the factory as bare metal, they had no obligation to warn consumers of the dangers of asbestos-containing materials that were added by other parties at a later date like thermal insulation and gaskets for flanges. This defense is accepted in a few jurisdictions, but it is not permitted under federal law in all states.
The Supreme Court's decision in Air & Liquid Sys. Corp. v. DeVries has reshaped that. The Court has ruled against the preferred rule of manufacturers' bright line rule and instead, the new standard under which a manufacturer has a duty to warn consumers if it is aware that its product will be dangerous for the purpose it was designed for and has no reason to believe that its final users will be aware of that risk.
This modification in law will make it more difficult for plaintiffs to file claims against manufacturers of equipment. However it's not the end. The DeVries decision is not applicable to state-law claims that are based on strict liability or negligence, and therefore not brought under federal maritime law statutes, such as the Jones Act.
Plaintiffs will continue pursuing a broader interpretation of the defense of bare metal. For instance, in the Asbestos MDL in Philadelphia, a case was remanded to an Illinois federal court to decide 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 a Texaco refinery.
In a similar case a judge in Tennessee has signaled that he will take a different view of the defense of bare metal. The plaintiff in that case was a Tennessee Eastman chemical plant mechanic who was diagnosed with mesothelioma following working on equipment that was repaired or replaced by third-party contractors which included the Equipment Defendants. The judge in the case decided that the bare metal defense applies to cases similar to this. The Supreme Court's decision in DeVries will affect the way judges use the bare metal defense in other cases for example, those involving state law tort claims.
Defendants' Experts
Asbestos lawsuits are complicated and require experienced lawyers with a deep knowledge of both legal and medical issues and access to top expert witnesses. EWH attorneys EWH have decades of experience helping clients in various asbestos litigation matters including investigating claims, preparing strategic budgets and litigation management strategies, finding and retaining experts, and defending defendants' and plaintiffs expert testimony during deposition and during trial.
Typically asbestos cases require the testimony of medical professionals like a radiologist and pathologist who testify on X-rays or CT scans that reveal scarring of the lung tissue that is typical of asbestos exposure. A pulmonologist is also able to provide evidence of symptoms, such as difficulty breathing that are similar to those of mesothelioma and other asbestos-related illnesses. Experts can provide a thorough account of the plaintiff's work background, including an analysis of their tax and social security documents, union and job information.
A forensic engineer or environmental scientist may be necessary to explain the cause of the asbestos exposure. These experts can help plaintiffs argue that the asbestos was not exposed in the workplace and instead was ingested on the clothing of workers or in the air outside (a common defense in mesothelioma cases).
A lot of plaintiffs' lawyers employ economic loss experts to assess the financial loss suffered by victims. These experts will be able to determine how much money a victim has lost due to their disease and the impact it has had on their life. They can also testify about expenses like medical bills and the price of hiring someone to perform household chores that a person can no longer perform.
It is essential for defendants to challenge expert witnesses of the plaintiff, especially in cases where they've testified in dozens or even hundreds of asbestos-related claims. If they repeat their testimony, these experts may lose credibility with jurors.
In asbestos cases, defendants can also seek summary judgment in cases where they can demonstrate that the evidence does NOT prove that the plaintiff was injured due to exposure to the products of the defendant. A judge is not likely to give summary judgment just because a defendant points out holes in the plaintiff's proof.
Going to Trial
Due to the latency issues involved in asbestos cases, it is difficult to make a significant discovery. The duration between exposure and illness can be measured by decades. To determine the facts upon which to build a case, it is necessary to review an individual's work background. This requires a thorough examination of the individual's tax, social security and union financial records, as well as interviews with family members and coworkers.
Asbestos sufferers are more likely to develop less serious diseases like asbestosis prior to a mesothelioma diagnosis. Due to this the capacity of a defendant to show that a plaintiff's symptoms might be due to another disease than mesothelioma is valuable in settlement negotiations.
In the past, certain lawyers employed this strategy to avoid responsibility and receive large sums. However, as the defense bar has evolved the strategy is generally rejected by the courts. This is particularly true in federal courts, where judges regularly dismiss such claims due to the absence of evidence.
This is why an in-depth analysis of each potential defendant is essential to a successful asbestos litigation defense. This involves evaluating the severity and length of the disease as well as the type of the exposure. For instance a carpenter with mesothelioma may be awarded higher damages than someone who has only had asbestosis.
The Bowles Rice Asbestos Litigation Team defends asbestos-related litigation for product manufacturers, distributors and suppliers, contractors, employers, and property owners. Our lawyers have years of experience as National Trial and National Coordinating Counsel. They are frequently appointed by the courts as liaison counsel to handle the prosecution of asbestos dockets.
Asbestos litigation can be complex and expensive. We help our clients to understand the risks involved in this kind of litigation and we assist them to create internal programs that are proactive and identify liability and safety concerns. Contact us to find out how we can protect the interests of your business.
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