Asbestos Litigation Defense
In order to defend businesses against asbestos-related lawsuits and claims, it is essential to examine the medical records of the plaintiff as well as their work history and witness. We typically use the bare metal defense which is focused on proving that your company didn't manufacture, sell or distribute the asbestos-containing products that are at issue in the case of a claimant.
Asbestos cases require an exclusive approach and a tenacious approach to achieve successful results. We act as local counsel, regional and national.
Statute of limitations
The majority of lawsuits have to be filed within a specific timeframe, referred to as the statute of limitations. In asbestos cases, that means the deadline for filing a lawsuit is between one and six years after a person becomes diagnosed with an asbestos-related condition. For the defense it is crucial to prove that the claimed injury or death did occur prior to the deadline. Often, this means reviewing the entirety of the plaintiff's past work history, which includes interviews with former coworkers as well as the careful review of Social Security, union, tax and other documents.
In defending an asbestos-related case, there are a number of complex issues. Asbestos-related victims can suffer from a less severe illness, such asbestosis, before they are diagnosed with a fatal condition such as mesothelioma. In these cases, a lawyer for defense will argue that the statute of limitations should start when the victim was aware or reasonably should have known that their asbestos exposure caused the disease.
These cases are made more complex because the statute of limitations could differ from state to state. In these instances an experienced mesothelioma lawyer will attempt to file the case in the state where most of the exposure alleged occurred. This can be a challenging task because asbestos victims often moved across the country in search of work, and the alleged exposure could have occurred in multiple states.
Finally, the discovery process is a challenge in asbestos litigation. Asbestos litigation is more difficult than other personal injury cases. Instead of a handful of defendants as in most cases, there are often several people involved. It can be difficult to get meaningful information when there are multiple defendants and the plaintiff's claim stretches over decades.
The McGivney, Kluger, Clark & Intoccia team has extensive experience serving as National Coordinating Counsel in multi-district and multi-jurisdictional asbestos litigation. We collaborate closely with local and regional counsel to develop litigation strategies and manage local counsel and achieve consistently cost-effective results while coordinating with the goals of our clients. We regularly appear in front of the trial judge and coordinating judge, as and litigation masters across the country.
Bare Metal Defense
In the past, producers of boilers, turbines, valves and pumps have defended themselves from asbestos lawsuits using what is known as "bare metal" doctrine or the component part doctrine. This defense holds that a manufacturer can't be held responsible for asbestos-related injuries resulting from replacement components that the company did not design or install.
In the case of Devries v. Tennessee Eastman Chemical, a Tennessee Eastman Chemical plant employee sued several equipment manufacturers over his mesothelioma. The job of the plaintiff involved the removal and replacement of insulation, steam traps and gaskets on equipment such as pumps, valves and steam traps (Equipment Defendants). He claimed that he was exposed to asbestos while working in the plant and was diagnosed with Mesothelioma many years afterward.
The Supreme Court's decision in Devries has changed the course of asbestos litigation and may impact how courts in other jurisdictions deal with the issue of the liability of third-party components that are added to equipment by manufacturers. The Court declared that the application of the bare-metal defense is "cabined" in maritime law but left open the possibility that other federal circuits to apply this doctrine to cases that aren't maritime.
This decision was the first time a federal appeals court has applied the bare metal defense in an asbestos lawsuit, and is quite a departure from the norms of product liability law. Allen asbestos lawyers of courts have understood "bare metal" as a denial of the obligation of a maker to warn about harms caused by replacement parts it did not make or sale.
The McGivney, Kluger, Clark & Intoccia Team is regularly serving as National Coordinating Counsel in multi-jurisdictional asbestos lawsuits that impact the entire industry. We assist our clients in developing strategies for litigation, manage regional and local counsel and ensure a an efficient, cost-effective defense in coordination with their goals. Our attorneys also present at industry conferences on important issues that influence asbestos litigation. Our firm has a long history of defending clients across the 50 states and working closely with trial courts, coordinating judges and litigation special masters. Our unique approach has proven successful in reducing exposure and legal costs for our clients.
Expert Witnesses
An expert witness is someone who is specialized in his skills, experience or knowledge and can provide independent advice to the court by way of unbiased opinion concerning issues that fall within his area of expertise. He must be able to clearly articulate the facts or assumptions on which his opinions are based and should not be oblivious to look into matters that could detract from his concluded conclusions.
In the event that asbestos exposure is alleged, medical experts may be required to evaluate the claimant's condition and to determine any causal links between the condition and the alleged source of exposure. Many of the ailments associated with asbestos are complex and require the expertise of specialists. This includes pharmacists, doctors, nurses, toxicologists, epidemiologists and occupational health specialists.
Experts are there to provide unbiased technical assistance, regardless of whether they represent the prosecution or the defence. He should not assume the role of an advocate and should not try to influence or persuade the jury in favour of his client. The obligation to the court is greater than his duties to his client. He should not try to push an argument or locate evidence to justify it.
The expert should cooperate with other experts in attempting to narrow any technical issues at a very early stage and eliminate any peripheral issues. The expert should also work with those who instruct him to pinpoint areas of agreement and discord for the joint declaration of expert ordered by the court.
After his main examination the expert must present his conclusions and the reasons behind them in a clear and comprehensible manner. He is expected to be able to respond questions from the prosecution or the judge and should be prepared to address any issues that are raised during cross-examination.
Cetrulo LLP has extensive experience in defending clients in complex asbestos litigation involving multiple parties and jurisdictions. Our lawyers are able to handle and advise regional and national defense counsel as along with local regional, expert witnesses and experts. Our team regularly appears before coordinating judges in asbestos litigation across the nation, as well as trial judges and special Masters.
Medical Experts
Expert witnesses are crucial in cases which involve asbestos-related injuries due the time lag between exposure to asbestos and the beginning symptoms. Asbestos cases typically involve complicated theories of injury that span decades and link hundreds or even dozens of defendants. It is almost impossible for a claimant to prove their case without the help of experts.
Experts in medicine and other sciences are needed to evaluate the degree of exposure an individual has and medical condition, as well as provide information on future health concerns. Experts like these are essential to any case and must be thoroughly vetted and knowledgeable about the subject matter. The more experience an expert in medical or scientific fields has the more convincing they'll be.
In a majority of asbestos cases, a medical expert or scientist is required to review the records of the claimant as well as perform an examination. These experts can testify as to whether the claimant's exposure asbestos was enough to cause a particular medical condition such as mesothelioma, lung cancer, or other forms of scarring that affects the respiratory tract and lungs (e.g., pleural plaques).
Other experts, such as industrial hygienists could also be needed to assist in establishing asbestos-related exposure levels. They can use sophisticated analytical and sampling techniques to evaluate the asbestos concentrations in the air at the workplace or at home to the legal exposure standards.
These types of experts can be extremely useful in defending companies that produced or distributed asbestos-related products, as they are often capable of demonstrating that the levels of exposure of plaintiffs were within legal limits and that there was no evidence of negligence on the part of the employer or the manufacturer's responsibility.
Other experts involved in these cases include environmental and occupational experts who can offer insights into the quality of safety procedures at a particular workplace or business and how these protocols are related to asbestos manufacturers' liability. They can determine, for instance, that renovation materials disturbed in the course of a remodel could contain asbestos or shaking clothing contaminated with asbestos could cause asbestos fibers and asbestos dust to escape.