Asbestos Litigation Defense
The defense of companies against asbestos litigation requires a thorough examination of a plaintiff's history of work, medical records and testimony. We often employ the bare metal defense which is based on the argument that your company was not able to manufacture or sell the asbestos-containing products that are at issue in a claimant's case.
Asbestos cases require a unique approach and a tenacious strategy to achieve success. We act as local counsel, regional and national.
Statute of limitations
The statute of limitations is a time limit within which the majority of lawsuits have to be filed. For asbestos-related cases, this means that the legal deadline for filing is between one and six years after a victim becomes diagnosed with an asbestos-related condition. It is essential for the defense to prove that the injury occurred within the timeframe. Often, this means reviewing the entirety of the plaintiff's employment history, including interviews with former colleagues and the careful examination of Social Security, union, tax and other records.
Defending an asbestos case involves many complicated issues. Asbestos sufferers may develop a less severe disease, such as asbestosis, prior to being diagnosed with a fatal illness like mesothelioma. In these cases, a defense attorney will argue that the limitation period should begin when the victim was aware or reasonably ought to have realized that their asbestos exposure caused the disease.
The complex nature of these cases is exacerbated by the fact that the statute of limitations can differ between states. In these cases a mesothelioma lawyer who is experienced will attempt to file the case in the state where the majority of the exposure alleged occurred. This can be a challenging task since asbestos sufferers often moved across the country in search of jobs, and the claimed exposure may have taken place in several states.
The process of discovery can be difficult in asbestos litigation. Unlike other personal injury cases, which usually contain only a few defendants, asbestos-related litigation usually involves dozens or more parties. It can be difficult to obtain meaningful discovery when there are many defendants and the plaintiff's theory is spanning 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 strategies for litigation, manage local counsel, and ensure efficient and consistent results in coordination with the goals of our clients. Longmont asbestos attorneys appear before coordinating and trial judge, as well as litigation masters, across the country.
Bare Metal Defense
In the past, makers of turbines, boilers, valves and pumps have defended themselves from asbestos lawsuits using what is referred to as "bare metal" doctrine or 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 Devries v. Tennessee Eastman Chemical, an Tennessee Eastman Chemical plant employee filed a lawsuit against several equipment makers over his mesothelioma. The plaintiff's job included the removal and replacement insulation, steam traps, and gaskets from equipment like pumps, valves and steam traps. He claimed he was exposed asbestos while working in the plant and was diagnosed with Mesothelioma several years later.
The Supreme Court's Devries decision has changed the landscape of asbestos litigation, and could influence how courts in other jurisdictions approach the issue of third-party components manufacturers add to equipment. The Court declared that the use of the bare-metal defense in this context is "cabined" to maritime law however, it did not rule out the possibility that other federal circuits might apply this doctrine to non-maritime cases as well.
This was the first time a federal appeals court used the defense of bare metal in a asbestos lawsuit and is a significant departure from traditional product liability law. Most courts have interpreted this "bare metal" defense as rejecting the obligation of a manufacturer to warn of the dangers caused by replacement parts that it did not manufacture or sell.
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 in developing strategies for litigation, manage regional and local counsel, and achieve a consistent, cost-effective defence in coordination with their objectives. Our lawyers are invited to speak at industry conferences on major issues that affect asbestos litigation. Our firm has experience in defending clients in all 50 states and working closely with trial courts, judges and special masters of litigation. Our unique method has proven successful in decreasing our clients' risk and legal costs.
Expert Witnesses
An expert witness is one who has specialized expertise, knowledge or experience and offers independent assistance to the court by way of unbiased opinion concerning matters within his field of expertise. He must clearly state the facts or assumptions upon which his opinion is based and should not be oblivious to look into matters that might affect his opinions.
In cases that involve allegations of exposure to asbestos, medical professionals are often asked to assist in the evaluation of the claimant's condition and the determination of any causal connection between their condition and the identified source of exposure. Many of the diseases that are caused by asbestos are complicated and require the expertise of specialists. This can include nurses and doctors, pharmacists, toxicologists or epidemiologists, occupational health specialists, and pharmacists.
Experts are available to provide unbiased technical assistance, regardless of whether they represent the prosecution or the defense. He should not assume the position of advocate and should not try to influence or persuade the jury in favour of his client. He should not try to convince the jury or promote an argument.
The expert should work with other experts in attempting to reduce any technical issues at an early stage and eliminate any irrelevant issues. The expert should also work with the people who instruct him to determine areas of agreement and disagreement for the joint declaration of the expert commissioned by the court.
After his examination in chief the expert must explain his conclusions and the reasons for them in a clear and comprehensible way. He should be able to answer any questions from the judge or the prosecution, and be prepared to address all points that are raised during cross-examination.
Cetrulo LLP has extensive experience in defending clients involved in complex asbestos litigation that involves multiple parties and jurisdictions. Our attorneys can handle and advise national and regional defense counsel, as well as local, regional and expert witnesses and experts. Our team regularly appears before trial judges, coordinating judges, and special masters of asbestos litigation throughout the country.
Medical Experts
Due to the latency issues that occur between asbestos exposure and the onset of symptoms experts play a significant role in any case involving an asbestos-related injury. Asbestos cases typically involve complicated theories of injury that can span decades and involve dozens or even hundreds of defendants. Because of this, it is almost impossible for a plaintiff to prove their case without the help of experts.
Experts in medicine and other sciences are required to assess the degree of exposure an individual has and medical condition, as well as to provide information on future health concerns. Experts like these are essential to any case and must be thoroughly examined and educated about the subject. The more experience an expert in science or medicine has the more convincing they is.
Asbestos cases often require an expert from a medical or scientific field to examine the medical records of the plaintiff and conduct a physical examination. These experts can testify as to whether the claimant's exposure asbestos was enough to cause an illness that is specific to him, like mesothelioma or lung cancer, or any other form of scarring on the respiratory tract and lungs (e.g. the pleural plaques).
It may be necessary to seek out other experts, like industrial hygienists to establish the existence of asbestos exposure levels. They can utilize advanced analytical and sampling techniques to determine the amount of asbestos in the air at the workplace or at home to the legal exposure standards.
They can be useful in defending companies that produce or distribute asbestos-related goods. They often are able to demonstrate that the levels of exposure for plaintiffs were below the legal limits, and that there was no evidence of employer negligence or manufacturer liability for the product.
Other experts who may be involved in these cases are occupational and environmental specialists. They can provide insight into the safety protocols that are in place at a specific workplace or company, and how they are related to the liability of asbestos manufacturers. They can be able to, for instance, prove that renovation materials damaged during the course of a remodel could contain asbestos or that shaking clothing contaminated by asbestos can cause asbestos dust and asbestos fibers to be released.