Asbestos Litigation Defense
In order to defend companies against asbestos litigation and claims, it is essential to examine the medical records of the plaintiff, work history, and testimony. We typically use a bare metal defense that focuses on arguing your company did not manufacture, sell, or distribute asbestos-containing products in the plaintiff's lawsuit.
Asbestos cases require a unique approach and a tenacious strategy to achieve success. We serve as local counsel, regional and national.
Statute of Limitations
The statute of limitations is a period within which most lawsuits must be filed. For asbestos-related cases, this means the statutory deadline for filing is between one and six years after a victim is diagnosed with an asbestos-related disease. In order to defend the case, it is important to establish that the alleged accident or death did not occur within this timeframe. This typically requires a thorough examination and analysis of the plaintiff's work history, which includes interviews with former coworkers and an in-depth review of Social Security and union records and tax and tax documents.
In defending asbestos cases, there are many complicated issues. For instance, asbestos-related victims often develop a less serious illness like asbestosis prior to being diagnosed with a fatal illness like mesothelioma. In these cases the attorney representing the defense will argue that the statute of limitation should begin when the victim realized or should have reasonably believed that exposure to asbestos causes their disease.
The difficulty of these cases is also exacerbated by the fact that the statute of limitations can vary between states. In these instances, a seasoned mesothelioma lawyer may try to file the case in the state where the bulk of the alleged exposure took place. This can be a challenging task, as asbestos victims often move around the country in search of jobs, and the alleged exposure could have occurred in several states.
Finally, the discovery process is difficult in asbestos litigation. Asbestos litigation is more complex than other personal injury cases. Instead of a handful of defendants, as is the case in most cases, there are often many parties involved. It can be difficult to obtain significant discovery when there are many defendants, and the plaintiff's case extends over a long period of time.
The McGivney, Kluger, Clark & Intoccia team has extensive experience as National Coordinating Counsel in multi-district and multi-jurisdictional asbestos litigation. We work closely with regional and local counsel to formulate a strategy for litigation, manage local counsel and obtain consistent, cost-effective outcomes in accordance with the client's goals. We regularly appear before coordination and trial judges, as well as litigation special masters, across the country.
Bare Metal Defense
In the past, makers of boilers, turbines valves and pumps have defended themselves against asbestos lawsuits using what is referred to as "bare metal" doctrine or the component part doctrine. This defense argues that a manufacturer can't be held responsible for asbestos-related injuries caused by replacement components that the company didn't design or install.
In the case of Devries v. Tennessee Eastman Chemical, a Tennessee Eastman Chemical plant employee was suing several equipment manufacturers for his mesothelioma. The job of the plaintiff involved the removal and replacement of insulation, steam traps and gaskets on equipment like pumps, valves and steam traps (Equipment defendants). He claimed that he was exposed to asbestos during his work in the plant and was diagnosed with mesothelioma a few years afterward.
The Supreme Court's decision in Devries has changed the course of asbestos litigation, and could impact the way courts in other jurisdictions deal with the issue of the liability of third-party components that are added to equipment by manufacturers. The Court stated that this application of the bare-metal defense is "cabined" in maritime law, but left open the possibility for other federal circuits to apply this doctrine to cases that aren't maritime.
This was the first time that a federal appellate court applied the"bare-metal" defense in a case involving asbestos, and it's a major departure for traditional law regarding product liability. Most courts have interpreted the "bare metal" defense as rejecting the obligation of a company to warn of the dangers caused by replacement parts that it did not create or sell.
The McGivney, Kluger, Clark & Intoccia Team is regularly serving as National Coordinating Counsel in multi-jurisdictional asbestos lawsuits that affect the entire industry. We assist our clients in developing strategies for litigation, manage regional and local counsel, and provide a consistent, cost-effective defence in coordination with their objectives. Our lawyers asbestos law and litigation are invited to present at industry conferences on important issues that affect asbestos litigation. Our firm has experience in defending clients across the 50 states and working closely with trial courts, judges and special masters of litigation. Our unique approach has proven to be effective in reducing legal spend for our clients.
Expert Witnesses
An expert witness is a person who is specialized in his skills, experience or knowledge and can provide independent advice to the court in the form of an objective opinion regarding matters of his field of expertise. He must clearly state the facts or assumptions on which his opinion is based and should not omit to consider matters which could affect his conclusions.
In cases where asbestos exposure is suspected medical experts could be required to evaluate the claimant's health and determine any causal link between the condition and the source of exposure. A lot of the diseases that are caused by asbestos are complicated, requiring the expertise of experts in the field. This could include nurses and doctors, pharmacists, toxicologists or epidemiologists, occupational health specialists and pharmacists.
In the event of a defense or prosecution, an expert's role is to provide impartial technical assistance. Experts should not be an advocate or attempt to influence the jury to favor his client. The duty to the court supersedes the obligations he has to his client and he should not try to push an argument or locate evidence to justify it.
The expert should work with the other experts when trying to narrow any technical issues at a very early stage and eliminate any irrelevant matters. The expert should also cooperate with the people who instruct him in identifying areas of agreement and disagreement to serve the purpose of the joint statement of experts ordered by the court.
The expert should at the conclusion of his examination, present his conclusions as well as the reasons for them in a way that is easy to understand and clear. He is expected to be able to respond questions from the prosecution or judge and be prepared to address any points which are raised during cross-examination.
Cetrulo LLP is well versed in the defense of clients in complex, multi-jurisdictional, multi-party asbestos litigation. Our attorneys are able to advise and manage regional and national defense counsel as well as regional and local experts and witnesses. Our team is regularly in front of coordinating judges in asbestos litigation across the country, as well as trial judges and special Masters.
Medical Experts
Expert witnesses are vital in cases that involve asbestos-related injuries because of the time lag between exposure to asbestos and onset symptoms. Asbestos cases typically involve complicated theories of injuries that span decades and involve hundreds or even dozens of defendants. It is almost impossible for an individual to prove their case without the help of experts.
Experts in the fields of medicine and other sciences are needed to evaluate the degree of exposure an individual has and medical condition, as well as give insight into the future health concerns. These experts are crucial to any case, and they must be thoroughly examined and educated in the field they are working in. The more experience an scientist or doctor has, the more persuasive the expert is.
Asbestos cases typically require a medical or scientific expert to review the claimant's medical records and conduct a physical exam. Experts can verify whether asbestos exposure has caused a particular medical condition, for example, mesothelioma or lung cancer.
Other experts such as industrial hygienists might also be needed to assist in determining the existence of asbestos-related exposure levels. They can employ advanced sampling and analytical methods to evaluate airborne asbestos levels in the workplace or at home and compare them to the legal exposure standards.
These experts can be valuable in defending companies who produce or distribute asbestos-related products. They are usually in a position to prove that the exposure levels of plaintiffs were lower than the limits set by law, and that there was not evidence of negligence by the employer or product manufacturer responsibility.
Other experts in these cases include occupational and environmental specialists who can offer insights into the adequacy of safety protocols at a specific workplace or business and how these protocols relate to the liability of asbestos manufacturers. These experts can determine, for instance, that the materials used in the course of a remodel could contain asbestos or that shaking clothing contaminated by asbestos can cause asbestos fibers and asbestos dust to release.