The Ugly Truth About Asbestos Litigation Defense
In order to defend companies against asbestos-related lawsuits, it is necessary to review the medical records of the plaintiff, work history and witness. We often employ the bare metal defense which focuses on arguing that your company didn't manufacture or sell the asbestos-containing products at issue in a claimant's case.
Asbestos cases are distinct and require an aggressive approach to achieve successful results. We serve as local counsel, regional and national.
Statute of Limitations
The statute of limitations is a period within which the majority of lawsuits have to be filed. For asbestos-related cases, that means the statutory deadline for filing is between one and six years after a victim is diagnosed with an asbestos-related illness. It is crucial for the defense to show that the injury occurred within the timeframe. This usually requires a thorough review and examination of the plaintiff's employment history, which includes interviews with former coworkers, and a thorough review of Social Security and union records as well as tax and tax records.
Defending asbestos cases involves various complex issues. Asbestos-related victims can develop a mild illness, such asbestosis, before being diagnosed with a fatal disease such as mesothelioma. In these instances, the defense attorney will argue the time limit should be set when the victim knew or ought to have known that asbestos exposure caused the disease.
These cases are made more complex due to the fact that the statute of limitations could vary from state to state. In these cases an experienced lawyer for mesothelioma will try to present the case in a state where the majority of the exposure alleged to have taken place. This could be a challenging task as asbestos patients frequently moved around the country in search of work, and the alleged exposure could have occurred in several states.
The discovery process is difficult in asbestos litigation. Asbestos litigation is more complex than other personal injury cases. Instead of just a few defendants, as is the case in most cases, there are usually several people involved. This means it can be difficult to get meaningful discovery in these cases, especially when the plaintiff's theory of injuries spans decades and connects many defendants.
The McGivney, Kluger, Clark & Intoccia team has extensive experience serving as National Coordinating Counsel in multi-district and multi-jurisdictional asbestos litigation. We work closely with local and regional counsel to develop litigation strategy and manage local counsel to obtain consistent, cost-effective outcomes, in coordination with the client's goals. We regularly appear before coordinating and trial judges and litigation special masters, across the country.
Bare Metal Defense
In the past, manufacturers of boilers, turbines and pump equipment have successfully defended themselves against asbestos litigation by claiming a defense known as the "bare metal" or component part doctrine. This defense asserts that a manufacturer is not responsible for asbestos-related injuries caused by replacement parts they did not design or manufacture.
In the case of Devries, an employee at a Tennessee Eastman chemical plant sued several equipment manufacturers to treat his mesothelioma. Plaintiff's work included the removal and replacement insulation, steam traps, and gaskets from equipment, such as valves, pumps, and steam traps. He claimed he was exposed to asbestos when working at the plant and was diagnosed with mesothelioma years later.
The Supreme Court's Devries decision has altered the legal landscape for asbestos litigation and could affect how courts in other jurisdictions approach the issue of third-party parts that manufacturers include in their equipment. The Court declared that the application of the bare-metal defense is "cabined" in maritime law, but left open the possibility of other federal circuits to apply this doctrine to cases that are not maritime.
This ruling was the first time that an appeals court of the federal level has used the defense of bare metal in a asbestos lawsuit and is quite a departure from the norms of product liability law. The majority of courts have interpreted the "bare metal" defense as rejecting the obligation of a company to warn about harm caused by replacement parts that it did not create or sell.
The McGivney, Kluger, Clark & Intoccia team regularly serves as National Coordinating Counsel for clients in multi-jurisdictional, industry-wide asbestos litigation. We assist our clients to develop litigation strategies, manage local and regional counsel, and provide an effective, cost-effective and consistent defense in coordination with their objectives. Our lawyers present at industry conferences on important issues affecting asbestos litigation. Our firm's experience includes defending clients across the nation and collaborating closely with coordinating judges, trial courts and litigation special masters. Our unique method has proven successful in reducing legal spend for our clients.
Expert Witnesses
An expert witness is one who has specific expertise, knowledge or experience and provides independent assistance to the court by way of an impartial opinion on issues that fall within his expertise. He must clearly state the facts or assumptions upon which his opinions are based and should not omit to consider issues that could detract from his concluded opinions.
In cases where asbestos exposure is suspected medical experts may be required to evaluate the claimant's condition and identify any causal links between the condition and the identified source of exposure. Many of the illnesses associated with asbestos are very complex, and require the expertise of specialists in the field. This can include doctors and nurses as well as toxicologists, pharmacists occupational health specialists, epidemiologists, and pharmacists.
If it's the prosecution or defence the expert's job is to provide objective technical assistance. He is not expected to assume the role of advocate and should not try to influence or convince a jury in favour of his client. The obligation to the court overrides his obligations to his client, and he should not attempt to promote an argument or locate evidence to back it.
The expert should work with the other experts when attempting to narrow any technical issues at a very early stage and eliminate any other peripheral matters. The expert should also co-operate with the experts who instruct him in identifying areas of agreement and disagreement for the purpose of the joint statement of experts ordered by the court.
The expert must at the conclusion of his examination chief, discuss his conclusions as well as the reasoning behind the conclusions in a manner that is clear and easy to comprehend. He should be prepared to answer questions from the prosecution or judge and should be willing to address any points which are raised during cross-examination.
Cetrulo LLP is well versed in defending clients in complex, multi-jurisdictional, multi-party asbestos litigation. Our attorneys can handle and advise national and regional defense counsel, as well as local, regional and expert witnesses and experts. Our team is regularly in front of judges who are coordinating asbestos litigation across the nation as well as trial judges and special Masters.
Medical Experts
Due to the latency issues that occur between asbestos exposure and the onset of symptoms Expert witnesses are a crucial part in any case that involves an asbestos-related injury. Asbestos cases typically involve complicated theories of injuries that stretch for decades and connect dozens or hundreds of defendants. It is almost impossible for a claimant to prove their case without the help of experts.
Medical and other scientific experts are required to determine the extent of an individual's exposure, assess their medical conditions and provide information about possible health issues that could arise in the future. These experts are crucial to any case and should be thoroughly checked and knowledgeable of the relevant field. The more experience an expert in science or medicine has the more persuasive he is.
Asbestos cases often require an expert in science or medicine to examine the medical records of the plaintiff and conduct a physical exam. Experts can determine if asbestos exposure has caused a particular medical condition, for example, mesothelioma or lung cancer.
It may be necessary to consult other experts, such as industrial hygienists, in order to determine the presence of asbestos exposure levels. They can employ advanced sampling and analytical techniques to determine the amount of asbestos in the air in a workplace or home and compare these to legal exposure standards.
Experts of this kind are also useful when defending companies who manufactured or distributed asbestos-related products, as they often have the capability of proving that the levels of exposure of plaintiffs were below the legal limit and that there was no evidence of negligence by the employer or manufacturer responsibility.
Other experts who could be involved in these instances are occupational and environmental experts. They can provide insights into the safety protocols which are in place at a particular work site or company and how they connect to asbestos manufacturers' liability. These experts could determine, for instance, that renovation materials disturbed in the course of a remodel could contain asbestos, or that shaking clothing contaminated by asbestos can cause asbestos dust and asbestos fibers to escape.