Defend Yourself in an Asbestos Exposure Lawsuit

If your U.S. company is sued by a former employee for exposure to asbestos, the results can be catastrophic. Many businesses have become bankrupt while defending themselves against asbestos exposure lawsuits. Often, the best defense is to attempt to get the case against you dismissed. Failing that, it's typically in the best interests of your business to try to settle the case as quickly as possible. Keep in mind that a strong and aggressive defense of your company does not mean that you don't empathize with the plaintiff. It simply means that you don't believe your company is responsible for their asbestos-related disease.

Steps

Selecting an Attorney

1. Search for appropriate attorneys near you. You may already have a business attorney. However, transactional business attorneys have little to no experience with litigation. Even if you have a commercial or business litigation attorney, you still need to hire someone who has experience defending companies against asbestos lawsuits.
   • Not only are litigation procedures complex – particularly if there are multiple defendants – but the science behind asbestos cases is complicated and can be difficult to understand.
   • For these reasons, you must find an attorney or law firm that has experience defending businesses similar to yours in asbestos exposure cases.
   • If you know of similar businesses in your area who have been sued for asbestos exposure, consider asking those business owners which attorney or law firm they used.
   • You also may have some luck searching the directory on the website of your state or local bar association. If the bar association has a section for attorneys who specialize in toxic tort litigation, you might want to start there.
2. Schedule several initial consultations. Ideally, you should interview two or three attorneys so you can compare and contrast them to find the best fit for your business's needs. Keep in mind that you have a limited period of time to respond to a complaint, so you need to make your decision quickly.
   • Take a look at your business so you can figure out what details about an attorney or law firm are most important.
   • For example, if the former employee is suing you in another state, you may want to find a law firm that operates in several states.
   • You also want to make sure the attorney or law firm has experience defending businesses similar to yours. While it may be impressive that a law firm has had a number of Fortune 500 clients, defense strategies are very different for a multimillion-dollar corporation compared to those for a small, family-owned business.
   • The attorney or law firm you hire also should have experience with businesses in your industry.
   • For example, if you're a landlord who is being sued by a former tenant, the strategies employed will be different than if you own a manufacturing plant and are being sued by a former employee.
3. Discuss the matter with your partners. If you own or operate your business with others, you should keep them informed on the status of the litigation. Once you've interviewed attorneys, work with your partners to identify the best fit.
   • You all need to complete a full financial assessment so you have a good grasp of how much you can budget towards your defense.
   • After you've talked to your partners, you may have follow-up questions for the attorneys you've interviewed.
   • Your partners also may want to have a meeting with the final choice before they're officially hired.
4. Sign a retainer agreement. Once you've decided which attorney to hire, sit down with them and go over the retainer agreement. You need a written agreement that outlines the terms of the representation and outlines billing arrangements before you give the attorney any money or allow them to start work on your case.
   • Have the attorney explain the retainer agreement so that you understand it fully. Ask about anything included that you don't understand.
   • In particular, make sure you understand the breakdown of attorney's fees and when bills are due. If there's anything with which you disagree, bring it up and attempt to negotiate a better deal for you and your business.
   • The attorney or law firm you hire may expect a sizable retainer before they begin work on your case. Given that you have a very limited period of time to answer the complaint, this needs to be done as soon as possible.

Answering the Complaint

1. Read the complaint carefully. The complaint you received includes specific factual allegations that make up the plaintiff's case against you. Through the complaint, you also can determine who the plaintiff is and who else they've sued.
   • After reading the complaint, go back through your business's records and pull any information you have on the plaintiff, their job, or anything else related to the lawsuit.
   • Your attorney will want to review any documents you find that potentially have bearing on the lawsuit or your defense.
   • Based on the plaintiff's allegations, your attorney will present to you a defense strategy for the case. Question any steps you don't understand or don't believe will be valuable.
2. Evaluate jurisdiction and venue. If the plaintiff sued you in the wrong court, this may be the quickest and easiest way to get the lawsuit against you dismissed. While the plaintiff typically is free to refile their lawsuit in the correct court, the dismissal still buys you time.
   • You also want to consider whether the case can be removed to federal court. Federal courts tend to be friendlier to defendants than state courts are.
   • Some state courts have a reputation of being extremely biased towards plaintiffs in asbestos lawsuits.
   • Your attorney will know which courts have jurisdiction handout of those, which are the best for you. If you can get the case dismissed from a plaintiff-friendly court, your defense may have a better chance.
3. Calculate the applicable statute of limitations. The statute of limitations sets the deadline by which the plaintiff must file their lawsuit for asbestos exposure. These deadlines vary among states, and may be as short as one year from the date the plaintiff was diagnosed with an asbestos-related disease.
   • The plaintiff's attorney already has reviewed the statute of limitations, but you may be able to argue that a different state's law applies.
   • This calculation is tied into your jurisdiction evaluation. If you've argued that the court in which the plaintiff filed their lawsuit does not have jurisdiction over the case, you typically also can argue that the state's statute of limitations doesn't apply either.
   • This can help your defense or even get the case dismissed if, for example, the plaintiff believes a five-year statute of limitations applies, but you are arguing that a different state's one-year statute of limitations applies.
4. Draft your answer. To respond to the lawsuit, you must file a written answer with the court where the lawsuit will be heard by the deadline listed on your summons. The written answer must respond directly to each allegation listed in the complaint.
   • Typically, your answer will deny most, if not all, of the plaintiff's allegations. Denying an allegation doesn't mean you're saying the allegation isn't true. You're simply requiring the plaintiff to meet their burden of proof on that allegation.
   • If, on the other hand, you admit an allegation, that means the plaintiff doesn't have to prove it and that particular allegation is taken as true.
   • Admissions of allegations can be dangerous because it may be that the plaintiff is unable to meet their burden of proof on that particular fact.
   • If you admit it, you're effectively making the plaintiff's job easier. Keep in mind that, especially if the alleged exposure happened decades ago, evidence may be difficult to find and memories may have faded significantly.
   • Any defenses you have also will be included in your answer. Often these take the form of procedural defenses related to the evaluation you did of jurisdiction and the applicable statute of limitations.
5. File your answer. Once your answer is complete, it must be taken to the clerk of the court where the plaintiff filed their lawsuit. It also must be served on all parties to the case, including the plaintiff and any other defendants.
   • The court may assess a filing fee for these documents. You also must pay a small fee to have the answer hand-delivered to the other parties in the case by a sheriff's deputy or private process-serving company.
   • Make sure your attorney gives you a file-stamped copy of your answer for your business's records.
6. Consider filing a motion to dismiss. If the plaintiff's case is lacking crucial allegations, you may be able to get the case dismissed for failure to state a claim against you. Talk to your attorney about the strategic value of filing a motion to dismiss.
   • Many attorneys who specialize in defending businesses sued for asbestos exposure favor an aggressive strategy and will recommend filing a motion to dismiss even if the plaintiff seems to have a relatively strong case.
   • If you do file a motion to dismiss, the court will hold a hearing on the motion before litigation on the case continues. At this hearing, all of the plaintiff's allegations will be taken as true.
   • To get the plaintiff's case dismissed, you must be able to show that even if the plaintiff proved everything in their complaint, you still would not be liable for damages as a result of the plaintiff's asbestos-related disease.

Developing Your Defense

1. Review the plaintiff's work history. The plaintiff's work history is important in establishing your company's liability – or relative liability – for the damages they've suffered as a result of their exposure to asbestos.
   • In many workplaces, such as shipyards, power plants, and metal works, workers are routinely exposed to asbestos on a regular basis.
   • If the plaintiff works in a field where asbestos is common, it's not likely that one party alone is responsible for all damages the plaintiff has suffered as a result of their asbestos-related disease.
   • If you were the plaintiff's most recent employer, or if they only worked for you for a short time, you may be able to get out of the lawsuit by successfully arguing that someone else was responsible for the asbestos exposure that caused the plaintiff's asbestos-related disease.
2. Talk to the plaintiff's healthcare providers. Another key part of your defense is an understanding of when the plaintiff was diagnosed with an asbestos-related disease and how far along that disease has progressed.
   • Once you have this information, you can fit it into the timeline of the plaintiff's work history.
   • For example, suppose the plaintiff was recently diagnosed with mesothelioma, an asbestos-related lung cancer. The plaintiff worked for you a year before the diagnosis.
   • Given that it can take between 20 and 40 years for mesothelioma to develop, you may have an argument that earlier asbestos exposure was responsible for the plaintiff's health problems.
3. Consider who else the plaintiff has sued. Through looking at the plaintiff's work history, you may identify other employers or manufacturers of asbestos products who are more likely at fault for the plaintiff's asbestos-related disease than your company is.
   • Typically, a plaintiff in an asbestos exposure lawsuit will sue everybody who possibly has any responsibility for their exposure, from their employers to the manufacturers of products they used that contained asbestos.
   • By casting a wide net, the plaintiff hopes to win a sizable recovery. You can use this to your advantage, especially if you are able to settle quickly.
   • If your relationship with the plaintiff was relatively brief – especially in comparison to the other defendants – you can argue that any exposure they experienced while working with you had a minimal part in their development of an asbestos-related disease.
4. Conduct a deposition of the plaintiff. If the plaintiff is a current or former employee of yours, they typically have sued you for asbestos exposure under a negligence theory. This means they must prove, among other things, that you failed to warn them of the dangers of asbestos exposure.
   • Your attorney will want to conduct a lengthy interview with the plaintiff to find out about their employment experience and their asbestos-related disease.
   • Over the course of the deposition, the plaintiff may reveal evidence or information that potentially damages their claims against you.
   • You also may learn additional details about the plaintiff's lifestyle and personal history that could be damaging to the plaintiff's case.
   • For example, smokers are more likely to get asbestos-related cancers than non-smokers. If you find out during the deposition that the plaintiff has smoked a pack of cigarettes a day for 20 years, this fact could significantly decrease your liability.
5. Make a settlement offer. In many cases, the best defense for your company will be to settle the case as quickly as possible. Pre-trial litigation can drag on for years, and the trial itself will be a tremendous expense for your company, even if you win.
   • When coming up with a dollar figure to offer in settlement, take into account the cost of litigation. You also want to consider whether other employees are likely to sue you for asbestos exposure in the future if the plaintiff's victory is a matter of public record.
   • Your attorney will work with you to craft a settlement range that fits within your business's budget. Your first offer should be as low as possible without being offensive to the plaintiff.
   • Typically the plaintiff will reject your first offer out of hand. Your settlement range gives you breathing room to negotiate and come back with a stronger offer.

References

See also

• Learn About Asbestos Legislation
• Sue for Asbestos Exposure
• Sue the Government for Discrimination
• Claim Age Discrimination for Apprenticeship Programs
• Help Avoid Employee Lawsuits
• Verify Rehab Treatment for an Employee
• Handle Disciplinary Actions
• Claim Weight Discrimination
• Know if You Should Sign a Covenant Not to Sue
• Defend Yourself in a Wrongful Termination Lawsuit

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