Asbestos Litigation Defense
The defense of companies against asbestos litigation requires a thorough analysis of a plaintiff's history of work, medical records and testimony. We typically use the bare metal defense which is focused on proving that your company didn't manufacture or sell the asbestos-containing products that are at issue in the case of a claimant.
Asbestos cases are unique and require a determined strategy to achieve success. We are local, regional and national counsel.
Statute of Limitations
The majority of lawsuits must be filed within a certain time frame, also known as the statute of limitations. In asbestos cases the deadline for filing an action is between one and 6 years after a person is diagnosed with an asbestos-related illness. In order to defend the case it is essential to prove that the alleged injury or death did occur prior to this timeframe. Often, this requires conducting a thorough review of the plaintiff's employment history, which includes interviews with former coworkers as well as the careful examination of Social Security, union, tax and other documents.
Defending asbestos cases involves a variety of complex issues. Asbestos victims may develop a mild illness, such asbestosis, prior to being diagnosed with a fatal illness such as mesothelioma. In these cases an attorney for defense will argue that the limitation period should begin when the person who suffers from asbestos knew or reasonably ought to have known that their exposure to asbestos triggered the disease.
These cases are made more complex due to the fact that the statute of limitations can vary from state to state. In these cases an experienced mesothelioma lawyer may try to bring the case to the state in which the majority of the alleged exposure took place. This may be a difficult task as asbestos patients often moved across the country to find employment, and the alleged exposure may have taken place in multiple states.
The discovery process is difficult in asbestos litigation. Contrary to other types of personal injury cases, which typically have only a handful of defendants, asbestos-related litigation typically involves dozens or more parties. It is often difficult to obtain significant information when there are multiple defendants and the plaintiff's claim is spanning decades.
The McGivney, Kluger, Clark & Intoccia Team has vast experience as National Coordinating Counsel for multi-district asbestos litigation, multi-jurisdictional. We work closely with regional and local counsel to develop strategies for litigation and manage local counsel and achieve consistently cost-effective results that align with the goals of our clients. We frequently appear before the trial judge and the coordinating judge as well as litigation masters, across the country.
Bare Metal Defense
In the past, makers of boilers, turbines pumps and valves have defended themselves against asbestos lawsuits using the "bare metal" doctrine or the component part doctrine. This defense states that a company is not responsible for asbestos-related injury caused by replacement parts that they did not install or manufacture.
In the case of Devries, an employee of an Tennessee Eastman chemical plant sued several equipment manufacturers for 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 had been exposed to asbestos during his work in the plant and was diagnosed with mesothelioma a few years afterward.
The Supreme Court's Devries decision has altered the legal landscape for asbestos litigation and could affect how courts in other jurisdictions tackle the issue of third-party components manufacturers add to equipment. The Court said that the application of the bare-metal defense in this instance is "cabined" to maritime law however, it did not rule out the possibility that other federal circuits could apply this doctrine to non-maritime cases, as well.
This was the first time that a federal appellate court applied the"bare-metal" defense in an asbestos case, and it is a significant departure from the traditional law regarding product liability. The majority of courts have understood "bare metal" as a denial of the obligation of a maker to warn about the dangers posed by replacement parts it did not make or sale.
The McGivney, Kluger, Clark & Intoccia team regularly serves as National Coordinating Counsel for clients in industry-wide, multi-jurisdictional asbestos litigation. We assist our clients to develop litigation strategies, manage local and regional counsel and ensure an effective, cost-effective and consistent defense in line with their goals. Our lawyers also speak at industry conferences about key issues affecting asbestos litigation. Our firm's experience includes representing clients across the nation and working closely with the coordinating judges and trial courts as well as litigation special masters. Our unique strategy has proven successful in cutting down on our clients' exposure and legal costs.
Expert Witnesses
An expert witness is one who has specific skills, knowledge or experience and offers independent assistance to the court in the form of unbiased opinion concerning matters within his area of expertise. He should clearly state his opinion and the facts or assumptions he is basing it on. He should also not overlook any aspect that might affect his conclusions.
In cases involving allegations of exposure to asbestos, medical experts are often required to assist in the evaluation of the claimant's condition and the determination of any causal connection between their condition and an identified source of exposure. Many of the ailments that are caused by asbestos are complicated and require the expertise of experts. This could include nurses and doctors as well as toxicologists, pharmacists epidemiologists, occupational health specialists, and pharmacists.
In the event of a defense or prosecution, an expert's role is to provide objective technical assistance. He should not assume the position as an advocate or seek to influence or persuade the jury to support his client. He should not try to convince jurors or promote an argument.
The expert should cooperate with the other experts in trying to reduce any technical issues at a very early stage and eliminate any other peripheral issues. The expert should also collaborate with those who are instructing him to identify areas of agreement and disagreement in the joint statement of the expert as ordered by the court.
The expert should finish his examination, present his conclusions and the reasons behind the conclusions in asbestos litigation jobs a manner that is clear and easy to comprehend. He should be able to answer questions posed by the prosecution or judge, and be able to address all points raised during cross-examination.
Cetrulo LLP has extensive experience in defending clients involved in complex asbestos litigation involving multiple parties and jurisdictions. Our lawyers can manage and counsel regional and national defense counsel as in addition to local, regional and expert witnesses and experts. Our team regularly appears before judges who are coordinating asbestos litigation across the country as well as trial judges and special Masters.
Medical Experts
Due to the issues of latency that occur between asbestos exposure and the onset of symptoms Expert witnesses play an extremely important role in any case that involves an asbestos-related injury. Asbestos cases usually involve complicated theories of injuries that span decades and involve hundreds or dozens of defendants. This is why it is almost impossible for a plaintiff to prove their case without the help of experts.
Medical and other scientific experts are necessary to assess the extent of an individual's exposure, evaluate 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 vetted and knowledgeable about the subject matter. The more experience a medical or scientific expert has the more persuasive they'll be.
In many asbestos cases an expert in medicine or a scientist is required to examine the records of the claimant and conduct a physical exam. These experts can testify as to whether the claimant's exposure to asbestos was enough to trigger a particular medical condition such as mesothelioma, lung cancer, or other forms of scarring in the lungs and respiratory tract (e.g. plaques in the pleural cavity).
Other experts such as industrial hygienists may be required to aid in establishing asbestos-related exposure levels. They can utilize advanced sampling and analytical methods to evaluate airborne asbestos levels in a home or workplace and compare these levels to legal exposure standards.
These types of experts can also prove valuable when defending companies that manufactured or distributed asbestos-related products, as they often have the capability of proving that the levels of exposure of plaintiffs were within legal limits and that there was no evidence of employer negligence or the manufacturer's responsibility.
Other experts that could be involved in these cases are environmental and occupational specialists. They can provide insights into the safety procedures that are in place at a specific work site or company, and how they connect to the liability of asbestos manufacturers. These experts can be able to, for instance, prove that the materials used in the course of remodeling could contain asbestos or that shaking contaminated clothing could cause asbestos dust and asbestos fibers to escape.