Affirmative Defense

An affirmative defense is a reason a defendant gives for avoiding or reducing liability even if the plaintiff's allegations are true. Common examples in asbestos cases include the statute of limitations, comparative fault and the government contractor defense. The defendant generally bears the burden of proving it.

Origin

Affirmative defenses come from common-law pleading and are now required by court rules to be stated in the defendant's answer, or they may be waived. Each state decides which defenses are available and how they work.

Significance in Asbestos Context

Asbestos defendants commonly list many affirmative defenses, some of which will never be pursued. The ones that most often matter include: the statute of limitations or statute of repose (the case was filed too late); comparative fault (for example, blaming smoking or the plaintiff's own conduct, where state law allows); the government contractor defense (the product was made to military specifications); the sophisticated user doctrine (the buyer already knew the hazard); and fault of others, including bankrupt companies and the employer. Some are true defenses that end a claim; others only reduce the damages. Because the defendant must prove them, they often lead to discovery about the plaintiff's work, medical and smoking history. How each defense works varies by state, and some states do not recognize certain defenses at all.

Example Sentence

The defendant raised comparative fault as an affirmative defense, arguing that the plaintiff's smoking contributed to his lung cancer.

Related Terms

Answer, Statute of Limitation, Comparative Negligence, Government Contractor Defense, Sophisticated User Doctrine, State-of-the-Art Defense, Smoking Defense

Notes

• Expect questions about smoking, other jobs and other exposures; these often relate to affirmative defenses.
• A long list of defenses in an answer is standard; your lawyer can tell you which ones the defendant is actually pursuing.