Asbestos cases typically share certain similarities, but too many factors can influence a settlement—or, in the case of a trial, a jury verdict—to predict the dollar amount you might receive. Still, there are things to keep in mind when it comes to the potential value of an asbestos case.
In the context of personal injury law, a settlement is meant to:
Most personal injury cases settle, That's true of asbestos claims too, a large majority of which will settle before a court trial takes place. Some will settle before a lawsuit is even filed in court. (Learn more about asbestos settlements.)
Asbestos defendants, insurers, and fund administrators (more on these later) take a number of factors into account when negotiating a settlement with plaintiffs, and juries do the same when deliberating after a court trial. These factors include:
But the value of an asbestos case (either at settlement or at trial) is most often based on the plaintiff’s economic and non-economic losses, and the defendant’s share of responsibility for those losses ("damages" in legalese).
Economic damages are the more straightforward losses resulting from the claimant's asbestos-related illness. These include:
If your medical expenses were largely covered by insurance, your insurance company might lien your settlements to recover what it paid for in your treatment. If this happens, your attorney will need to negotiate with your insurer so you can keep as much of your settlement as possible. Learn more about health insurance liens on personal injury claims.
The value of your lost income (and future lost earnings) will usually be determined based on:
If you've already retired or are disabled from some other injury, your case will not have a lost income component. However, since an asbestos-related disease often shortens a person’s life expectancy, your economic damages might include pension income and other retirement income you will lose because of a shortened life-span.
Many asbestos plaintiffs suffer loss of ability to do things around the house, such as housework, gardening, and household repairs. If you have to hire someone to do work that you once were able to do yourself, those costs are part of your economic damages.
Non-economic damages are the effects of an asbestos illness that aren't all that easy to capture with a dollar figure.
The largest component of damages in a personal injury lawsuit is generally the "pain and suffering" that arises from the injury.
While some forms of pain and suffering are just what the term indicates (physical pain and discomfort), the concept typically captures a wide range of impacts, from the physical effects of the underlying harm to the more mental and emotional.
So, in the context of an asbestos-mesothelioma case, different kinds of pain and suffering might include:
These kinds of losses are much more difficult to quantify when compared with economic damages. While it's fairly easy to look at an itemized medical bill or pay stub and arrive at a dollar figure, people experience pain and its different impacts in different ways, especially when it comes to the psychological side of things. One mesothelioma patient's mild anxiety might be another patient's devastation. So it's not hard to see that the way pain and suffering is defined from case to case—and how these damages are calculated―is much more subjective than it is formulaic.
In an asbestos case, the nature of the disease generally sets a baseline for the value of the pain and suffering. A plaintiff with mesothelioma or lung cancer is usually deemed to have suffered more than a plaintiff with asbestosis or pleural plaques. However, a person with severe asbestosis who is on oxygen might be more ill than a person who had Stage I lung cancer which was successfully treated. Your attorney will make arguments about the value of your case based on your pain and suffering, not on how much a coworker or friend’s case was worth. (Learn more about pain and suffering in an injury case.)
Your attorney might also try to recover damages for loss of enjoyment of life, such as activities you can no longer take part in because of your illness.
The better your evidence that you were exposed to asbestos because of a defendant’s product or activities, the greater your chance of a fair settlement with that defendant.
Many of the original manufacturers, miners, and suppliers of asbestos fibers and products have established bankruptcy trusts for people who can prove exposure to their products. These trusts might receive thousands of claims annually. Their settlement offers are usually a predetermined amount calculated based on disease, work history, and product identification.
For example, every plaintiff with asbestosis and five years of work as a pipefitter who can prove exposure caused by a particular bankrupt defendant will be offered the exact same amount in settlement by that defendant. If your attorney thinks this offer is for some reason unfair, your attorney will attempt to negotiate a higher amount.
If your asbestos lawsuit goes to trial, your attorney will be presenting the same evidence that goes into settlement negotiations, but a jury will determine how much liability a particular defendant bears. In states with joint and several liability, the jury will determine the total value of the case and what percentage the defendant at trial owes. Your attorney can ask for a certain amount of money, but the actual award is ultimately up to the jury.
Asbestos cases are complex enough, and especially when your illness is debilitating, figuring out how much your claim might be worth isn't something you need to do on your own. An asbestos-mesothelioma lawyer will have the skills and experience to analyze your situation and best position your case for success. Learn more about hiring and working with an asbestos lawyer.
]]>This is the crucial threshold question to consider. But in general, there's a good chance you have a valid lawsuit on your hands (and a chance of receiving compensation ("damages") through a settlement or in court if you:
You might file a lawsuit or claim against a number of potential defendants or sources, including:
State laws called statutes of limitations usually give people one to five years to file a lawsuit, typically starting from the diagnosis or discovery of mesothelioma. But it's important to act promptly, because in a few states—including California, Louisiana, and Tennessee—the statue of limitations is only one year from diagnosis or discovery.
If a mesothelioma victim has already died, their spouse and other heirs typically have one to three years from the date of death to file a wrongful death action. We'll discuss these kinds of cases a little later on.
If your asbestos exposure occurred while working jobs in more than one state, it's not always clear which state's statute of limitations covers your lawsuit. And if you developed mesothelioma or another type of cancer because of your use of a talc product like baby powder, the applicable deadline could be one that applies to product liability lawsuits. Talk to a lawyer for details on the statute of limitations that might apply to your potential case.
(Note that mesothelioma victims can't file or join in class action lawsuits because each person's medical history and prognosis is different, so mesothelioma cases must be filed individually.)
Get more details on the statute of limitations and asbestos lawsuits.
Most asbestos cases are settled before they ever get to a jury (meaning the parties agree, outside of the court process, on how much the mesothelioma claimant will receive). If you've gathered all the facts about your medical condition and employment history, and your lawyer runs an efficient office, and there is an easily identifiable payment source—such as an insurance company or an asbestos victims' trust fund—you could get your money less than a year from the date your lawsuit or claim is filed.
In other situations, where the amount of money damages hinges on going to trial (or at least threatening to do so), it can take two years or more. Fortunately, the court rules in many states recognize that mesothelioma victims have a short life expectancy, and as a result, they fast track their lawsuits. Learn more about the timeline of an asbestos case.
The dollar amount you are likely to receive as compensation for developing an asbestos-related illness is hard to estimate. Some cases result in settlements or jury awards in the millions, while other claims settle for comparatively little.
Over the years, many companies that manufactured or installed asbestos have closed down or gone bankrupt, which in turn has resulted in courts' requiring that large funds be set aside to compensate future victims. Some of these funds are still large enough to pay out all claims at full value, but others have been depleted to the point that far less is available, so settlement amounts must be rationed.
In addition to the size of the asbestos victims' compensation fund available for payment, each victim's particular mesothelioma illness and how it has affected their life is important to valuing a potential settlement or jury verdict. The dollar amount of wages lost due to the illness, the cost of medical expenses, and, usually most important, the degree of the claimant's "pain and suffering" are all key factors in putting a dollar value on a particular case.
A third factor in estimating how much you'll recover is time. When cases are settled relatively quickly, the amount recovered tends to be significantly less than it might be if your lawyer waited to present your case at a court trial. But preparing and conducting a jury trial can take several years, whereas settlements can often be arranged in a year or less. For this reason, many seriously ill plaintiffs prefer a relatively quick settlement, and this is especially true when they learn that some lawyers charge substantially more when a case goes to trial, under their contingency fee agreement (more on this later).
The most common types of mesothelioma usually qualify for expedited disability benefits from the Social Security Administration. Learn more about getting disability for cancers like mesothelioma.
Expert witnesses are a necessary part of many personal injury cases in which legal and medical issues become complex, and asbestos lawsuits almost always fit that bill.
In an asbestos case, expert medical testimony is essential because it's what proves the plaintiff actually has mesothelioma or some other asbestos-related disease.
Expert medical testimony in asbestos cases is often provided by a radiologist, a pathologist, or both. A radiologist will testify that X-rays or CT scans show scarring in the lungs, which is characteristic of exposure to asbestos. A pathologist will testify as to the number of asbestos fibers located in a tissue sample, or the difference between types of cancer cells. A pulmonologist or oncologist might also be called to testify.
Proving that you have an asbestos disease is only half the battle. In order to recover for your losses, you also need to prove the defendant (or the company linked with the trust fund) is responsible for exposing you to asbestos. This usually requires the testimony of an industrial hygienist or a certified asbestos professional who can testify that, for example:
Learn more about on-the-job exposure to asbestos.
Most asbestos plaintiffs have suffered extensive monetary loss. If your illness caused you to retire early, an economist can estimate how much potential income you lost. An economist can also establish how much money you will lose from a premature death or from hiring people to do chores you no longer can do yourself.
Yes. But an asbestos wrongful death lawsuit can be challenging with regard to evidence, because many of the details related to asbestos exposure died with the deceased person.
Family members who didn't work with the decedent might not be able to describe how the exposure happened, let alone what asbestos-containing products were involved. Since the exposure likely occurred many years earlier, even a family member who knew what was happening at the time may have forgotten significant portions of the work history.
For this reason, other witnesses (such as coworkers) and written evidence (such as work diaries or union dispatch slips) are very important.
Some or all heirs may be asked to provide deposition or trial testimony in a wrongful death lawsuit over asbestos illness. Even if an heir knows nothing about the decedent's asbestos exposure, this kind of testimony is still important in establishing the extent of the loss.
Learn more about damages in a wrongful death case.
Most mesothelioma cases are handled on a contingency fee arrangement. This means your lawyer charges you no fees up front, but instead receives a percentage of the eventual settlement or money damages you receive as the result of a court judgment, plus any expenses (for things like depositions, copying, and postage) that you agree to pay as part of a written fee agreement.
A typical contingency fee is 25% to 40% of money damages you recover. The exact amount depends on several factors, including whether a victims' trust fund places a cap on contingency fees (some allow no more than 25%), whether you settle out of court or go to trial, how much the lawyer wants your case (if the attorney believes your case is certain to win a big settlement or court judgment, you are in a much better bargaining position than if you are likely to receive a lower amount), and how hard you bargain before signing a fee agreement.
Learn more about how to hire a mesothelioma or asbestos lawyer.
]]>Mesothelioma is a cancerous growth that attacks the linings of the chest wall, lungs, and abdomen. Pleural mesothelioma, the most common form of the disease, occurs in the chest and lungs, and can follow or occur alongside asbestosis, which is the scarring of lung tissue caused by inhalation of asbestos fibers, but mesothelioma often occurs alone. The other most common form of malignant mesothelioma, peritoneal mesothelioma, attacks the lining of the abdomen.
Symptoms of mesothelioma often don't show up until 20 or more years after asbestos exposure but, at some point signs of the disease typically appear as:
Taken individually, the symptoms outlined above don't necessarily indicate mesothelioma. They could be related to a much less serious condition, or they may not point to any health problem at all. But since these symptoms could be cause for concern, especially in people who have worked around asbestos for long periods of time, your doctor will likely want to perform a number of diagnostic exams, including x-rays and pulmonary function tests.
Exposure to asbestos in the workplace is the leading cause of mesothelioma. In particular, people who worked in the heating and construction businesses decades ago may have been exposed to high levels of asbestos. The disease has also surfaced in a small minority of individuals who had had no known asbestos exposure. Millions of Americans were exposed to free floating, airborne asbestos from nearby factories, ship building yards, and asbestos mines and mills that were in operation from the 1930s through the 1970s, which may account for some of these problems.
In a number of instances, spouses or others who regularly handled and washed asbestos-tainted clothing have also contracted mesothelioma, and many have brought so-called "secondary exposure" asbestos lawsuits.
More recently, samples of talc products like baby powder have been found to contain measurable levels of asbestos, and manufacturers like Johnson & Johnson are facing thousands of lawsuits alleging a link between talc products and cancer, including mesothelioma and ovarian cancer.
Mesothelioma is an ultimately fatal disease. But, especially if caught early, it can be treated and slowed significantly. About 20% of mesothelioma sufferers live five years or more, often considerably longer, although more than half die within 18 months of diagnosis. Depending on how early it's caught, mesothelioma treatment usually involves drugs, chemotherapy, radiation and, in some cases, surgery.
In any personal injury case, including lawsuits over mesothelioma and asbestos exposure, the specifics of the plaintiff’s health problems are critical to shaping the impact of the injury or illness, and it starts with an accurate diagnosis.
Diagnosis goes straight to the nature and extent of the plaintiff’s damages, which includes all compensable losses—both “economic” damages like cost of future medical treatment and lost income, and “non-economic” damages like pain and suffering.
Learn more about what to expect in an asbestos-mesothelioma lawsuit, and get tips on finding the right asbestos-mesothelioma lawyer.
]]>Talc is a naturally-occurring mineral that is used in a number of products, including makeup, cosmetics, and baby powder. Talc is often mined alongside (and can contain traces of) asbestos, another naturally-occurring mineral, but one that's a known carcinogen. Once used in a wide range of products, for decades asbestos has been linked to the development of mesothelioma (a form of cancer) and other serious illnesses.
In October 2019, the U.S. Food and Drug Administration (FDA) reported that, after a year-long study of talc-containing cosmetic products, 43 samples came back negative for asbestos, but nine were positive. The agency then worked with a number of manufacturers on recalls of some of the asbestos-containing products, including Johnson & Johnson, which ended up recalling a single lot of its popular Johnson's Baby Powder later that month.
In April of 2020, already facing thousands of lawsuits alleging a link between its talc products and cancer diagnoses, J&J announced that it would no longer sell its talc-based Johnson's Baby Powder product in the U.S. or Canada. By August 2022, that strategy had grown into a global one, with the company announcing that sales of all talc baby powder products would end worldwide in 2023, to be replaced with cornstarch products.
These weren't the first headlines linking J&J products to asbestos. According to a 2018 investigative report by Reuters, the company may have known about the presence of asbestos in its talc products for decades, with company documents and sworn testimony indicating that both raw talc used by the company and certain finished products tested positive for low levels of asbestos over the years.
Beyond baby powder, a November 2020 lab test of talc-based cosmetics by the Environmental Working Group found that almost 15 percent of the products sampled contained asbestos. According to an EWG news release, the cosmetics industry in general is doing an inadequate job of screening its supplies of talc.
While there is no consistent, definitive link between asbestos and talc products, with only a small percentage of products testing positive, the key here is that there is no known safe level of exposure when it comes to asbestos. So the presence of any amount of asbestos in baby powder or any other cosmetic product raises legitimate health concerns, and nudges open the door to liability on the part of manufacturers like Johnson & Johnson. That's especially true when a consumer probably wouldn't reasonably expect cosmetic products to contain asbestos. We're not talking about brake pads and commercial insulation, after all.
Asbestos has been linked to cancers like mesothelioma for decades, especially in individuals whose employment history includes years spent working with or around the product. The presence of asbestos in talc products has come to light only relatively recently, but most of the lawsuits over talc in cosmetic products (especially those cases filed over the safety of Johnson's Baby Powder) allege a link between use of the product and the development of ovarian cancer.
Regardless of the particulars of your use of a talcum powder-based cosmetic product, if you're experiencing unusual symptoms or have concerns about a potential health issue, contact your doctor rather than trying to self-diagnose via this (or any) online resource.
With that caveat, symptoms of ovarian cancer aren't readily noticeable, and even the known warning signs are often attributable to some other cause. According to WebMD, the following symptoms could indicate ovarian cancer, but they might also point to any number of other conditions, or they could mean nothing serious at all from a health perspective:
Keep in mind that lawsuits over the safety of talc products have also been brought by plaintiffs who have been diagnosed with fallopian tube cancer, peritoneal cancer, and mesothelioma as well.
It should also be noted that talc itself (whether or not it contains asbestos) could pose its own health risks. In much the same way that years of working with or around asbestos could lead to mesothelioma, employees who mine or process talc (and who may inhale talc particulates) could be at risk of developing lung cancer and other illnesses. Similar health risks could extend to consumers after frequent use of a talc-based product over years or decades.
A recent study asked the question "Is use of talcum powder in the genital area associated with the risk of developing ovarian cancer?" The answer, according to results published in the Journal of the American Medical Association (JAMA) in January 2021, is that there is no "statistically significant association" between use of talc-based products like baby powder in the genital area, and the development of ovarian cancer. The long-term study (conducted by researchers from the National Institute of Health and the National Cancer Institute) monitored over 250,000 women—some reporting "frequent" and "long-term" genital ("perineal") use of talc-based powders. One important note here is that while this study acknowledged talc's "relationship to" asbestos in the past, and tried to analyze data in relation to a 1976 ban on use of asbestos in cosmetic talc, there was no particular consideration of or focus on talc-based products that have tested positive for asbestos—in the recent FDA-sanctioned studies or elsewhere.
And finally, at least one health organization—the International Agency for Research on Cancer (part of the World Health Organization)—has classified "perineal (genital) use" of talcum powder-based cosmetic powders as "possibly carcinogenic to humans." That means there may be a legal basis for a lawsuit against the manufacturer of a talc-based product with or without evidence that the product contained a measurable amount of asbestos.
Filing a personal injury lawsuit against the manufacturer or seller of a talc-based product like baby powder means being able to demonstrate that you've developed an illness (like ovarian cancer) that might be attributable to your use of the product, usually over an extended period of time (that typically means years, not weeks).
The mere fact that you've used baby powder or a similar product (or that you have a bottle of it in your medicine cabinet) isn't enough to file an injury/illness lawsuit against a company like Johnson & Johnson. It's also not enough to sue over the company's failure to warn consumers of potential health risks linked to use of the product. These cases require measurable harm, and it all starts with an accurate diagnosis.
Diagnosis of a talc-related illness like ovarian cancer goes straight to the nature and extent of your losses ("damages" in legalese). The plaintiff in a talc-cancer case almost always experiences both "economic" damages (including the cost of past and future medical treatment, lost income, and other quantifiable losses) and "noneconomic" damages such as "pain and suffering" and similar, more subjective impacts related to their health problems.
A lawsuit alleging illness caused by a talc product will almost certainly be based on a personal injury fault theory known as "product liability," which can be used to hold manufacturers responsible for injuries and illnesses linked to a defective or unsafe product, or for failure to warn consumers of risks associated with the product's use. (Learn more about proving a product liability case.)
With any lawsuit, a big first consideration is the case-filing deadline in your state, but in a talc-cancer case, these time limits can sometimes take center stage, at least initially.
Deadlines for filing any kind of lawsuit are set by a law called a "statute of limitations." In some states, the statute-of-limitations deadline that will apply to a talc-cancer lawsuit is the same as the one that applies to most personal injury cases. Other states have a separate statute of limitations for product liability lawsuits. Whichever statute applies, you'll typically have two to three years to get your lawsuit filed (the deadline is shorter in some states, longer in a few), but it's not always easy to figure out when the "clock" starts ticking in these kinds of cases.
A lawsuit for illness linked to a product like baby powder isn't like most other kinds of personal injury cases. If you slip and fall on a wet floor, for example, your injuries typically make themselves known right away, and there's little doubt about the cause of your harm. When you're alleging illness linked to long-term use of a product, it's nearly impossible to determine exactly when that use actually caused health problems. This is a big reason why the statute of limitations "clock" might not necessarily start running on the date of your last use of a talc-based product.
Under the "discovery rule" in most states, the clock might start only when the plaintiff discovers (or should reasonably have discovered) that they were harmed by use of a talc product like baby powder. That date might coincide with a diagnosis of a health problem linked to talc or asbestos, or the plaintiff's first experience of symptoms of such a health problem (alongside public indications that talc may be linked to those symptoms). But keep in mind that if a significant number of years have passed between your last use of a talc product and the onset of your illness, another time limit called the "statute of repose" might prevent you from bringing a case against the product manufacturer. (Learn more about how statutes of limitations and statutes of repose work in product liability cases.)
Regardless of how long it’s been since you last used a talc product, talk to an attorney for details on lawsuit-filing deadlines and how they might apply to your specific situation.
As of January 2021, there is no current class action involving claims that use of baby powder or a similar talc-product caused illness or injury. That's partly because, in a class action, one or a few individuals represent the interests of all class members, and everyone in the class is bound by the result. With lawsuits alleging illness caused by baby powder or another talc product, even among plaintiffs who have used the same product, there's too much disparity among individual cases (in terms of variables like severity of illness and impact on the plaintiff's life and livelihood) to make a class action appropriate.
The largest single consolidation of talcum powder product claims is a federal "multidistrict litigation" (MDL) action over Johnson & Johnson products (like Johnson's Baby Powder), which includes thousands of lawsuits. The MDL (called "Johnson & Johnson Talcum Powder Litigation") is being handled by Judges Freda L. Wolfson and Lois H. Goodman in the U.S. District Court for the District of New Jersey. Note that this MDL includes a number of cases originally filed in state court and later "removed" to the MDL, usually at Johnson & Johnson's request. Keep in mind that the MDL is a consolidated group of individual cases in which the plaintiffs still largely control their own legal destinies. Your attorney will determine the best course of action for your case.
As with all injury-related legal claims, the value of a talcum powder lawsuit will depend on the plaintiff's unique experience and circumstances, including:
(Get more tips on damages in a product liability case.)
As with all personal injury cases, most talc-cancer lawsuits will end up reaching an out-of-court settlement at some point (the vast majority won't end up in a trial, in other words). But it's not easy to predict how much a plaintiff might receive in settlement. That's because every case is different when it comes to clarity of the defendant's liability and the spectrum of the plaintiff's damages. And comparison of settlement outcomes is usually impossible because, by their very terms, settlement agreements are almost always confidential. The plaintiff agrees to accept a certain amount of compensation to resolve their case and release the product manufacturer from any future liability over the incident, the manufacturer promises to pay the plaintiff the agreed-upon dollar amount, and both sides agree to keep the terms of the settlement private.
It should be noted that while Johnson & Johnson is facing upwards of 70,000 lawsuits over the safety of their talc-based products, it's not the only big company being dragged into court. Other manufacturers named in similar cases include Revlon, Chanel, Avon, and Colgate-Palmolive. Talc suppliers and even drug stores have also been sued by consumers. The wave of litigation has many cosmetic companies pivoting away from use of talc in their products, according to Reuters.
Jury verdicts after product liability trials aren't necessarily the best yardstick against which to measure the value of your potential talc-cancer lawsuit. When a plaintiff wins a trial like this, they often win big. And most talc-cancer lawsuits to reach the trial stage have only involved cases against Johnson & Johnson. Having said that, let's look at a few recent plaintiffs' verdicts and appeals courts decisions:
If you're thinking about filing a lawsuit over your development of ovarian cancer or some other health problem linked to use of a talc product (like baby powder), having the right attorney can make a big difference in the outcome of your case. But how do you choose a lawyer who's right for you?
Asking for a referral from someone you know and trust can be a good way to find legal help. If someone in your inner circle has had a positive experience with a certain lawyer, it might make sense to reach out to that lawyer as a first step. Even if the lawyer doesn't handle product liability cases against big companies like Johnson & Johnson, they may be able to refer you to a qualified lawyer in their network.
State bar associations usually have websites that allow you to research lawyers and find out the kinds of cases in which they specialize, and whether they've been subject to any discipline. And online resources like Nolo let you connect with lawyers via chat and information submission features, or just put together an initial list of candidates you might want to get in touch with.
Whether you talk to a lawyer in person, over the phone, or online, here are some topics you might want to ask about:
Remember to consider any special needs you might have, and any practicalities. Check out more questions to ask a potential personal injury attorney.
As touched on above, your talcum powder cancer lawsuit will almost certainly be handled on a "contingency fee" basis. This means if your case settles, or you receive a verdict in your favor after a civil trial, your lawyer receives an agreed-upon percentage of your compensation. A standard contingency fee agreement in an injury case sees the lawyer receiving one-third of the plaintiff's compensation, but especially in more complex kinds of litigation like talcum powder cancer lawsuits, the lawyer's percentage might increase as the case progresses. If the client receives nothing from the defendant, the lawyer doesn't receive compensation for their legal services.
Always read the fine print of any attorney-client agreement before signing, especially when it comes to who is on the hook for case expenses or "costs", and when (whether the deduction of costs will come before or after the attorney takes their percentage of a settlement or judgment, for example).
Even if you think you have a good case, be prepared for a lawyer to turn down the opportunity to represent you. Many lawyers do not take cases if they fall below a certain potential recovery amount, or if a key element of the case is less than clear. Maybe you have a long history of using baby powder or a similar product, but haven't received a diagnosis of a specific health problem, for example. Be prepared to keep looking for help with your case, or to look again as your situation changes. (Get more tips on getting help from an injury lawyer.)
Asbestos is a naturally occurring, fibrous material. In part because of its durability and resistance to heat and flame, asbestos has been utilized in dozens of industries and occupations for decades. But, long before its popularity in industry peaked, asbestos became linked to health problems. And, over the years, thousands of workers have developed a deadly asbestos-related disease called mesothelioma.
The dangers of asbestos have been clear for decades now. Everyone breathes in trace amounts of asbestos each day, since it occurs naturally in the environment. But, because asbestos fibers can be inhaled, even short-term exposure to significant levels of asbestos on the job can lead to breathing problems, coughing, and shortness of breath. Asbestos has been classified as a carcinogen (cancer-causing) substance. So the most serious health risks come from long-term exposure to asbestos on the job -- especially for older people who may have spent decades in the workplace before the advent of safety measures that help protect employees from most asbestos exposure in the modern workplace.
Serious health problems related to asbestos exposure include:
Even now, decades after the advent of health concerns about asbestos and the rise in deadly asbestos-related diseases like mesothelioma, exposure to asbestos is still quite common (even necessary) in some lines of work. Here's a list of occupations and industries that have traditionally seen workers exposed to significant levels of asbestos:
If you work with or around significant amounts of asbestos as part of your job -- or if you're worried about exposure to asbestos in the workplace -- talk to your supervisor or union about any health risks and the steps that are being taken to minimize those risks.
The Occupational Safety and Health Administration (OSHA) and other workplace safety agencies are supposed to carefully regulate and monitor asbestos exposure on the job -- they even set permissible exposure limits for different kinds of industries. So chances are, if your job does involve exposure to significant levels of asbestos, your employer is legally required to take certain steps to protect you and your coworkers from any health risks involving asbestos.
Depending on the industry you work in and the specifics of your job, you may be legally entitled to receive -- and your employer may be legally obligated to provide -- the following kinds of on-the-job protections from asbestos exposure:
Most of these safety measures are covered by OSHA regulations. Learn more about employees' rights to a safe workplace with Nolo's Your Health and Safety at Work FAQ.
You can find more information on asbestos in the workplace, including OSHA standards and protections for workers, on the OSHA Asbestos website at www.osha.gov/SLTC/asbestos/.
If your employment history (or your current job) involves working with or around significant amounts of asbestos, you may have questions about lawsuits over asbestos exposure. If so, here are a few things to keep in mind.
Who is legally responsible? Generally speaking, if an employee (or former employee) suffers from health problems that are caused by asbestos in the workplace, a lawsuit would be filed against some or all of the following:
(Note: workers compensation -- and not a lawsuit -- is usually the exclusive remedy even when an employer has failed to properly protect workers from asbestos exposure.)
In some cases, an asbestos victim compensation fund might already be in place, which may streamline the financial recovery process in an asbestos-related lawsuit. Learn more about these kinds of cases in Nolo's article Asbestos and Mesothelioma Lawsuits: What to Expect.
Finding a lawyer. If you think you might have developed some type of asbestos-related illness or are concerned because you've been exposed to asbestos on the job, you may want to talk to an experienced attorney. At the very least, you may be entitled to health monitoring and testing, which can mean valuable early detection of any asbestos-related health problems.
Remember that mesothelioma and health problems linked to asbestos exposure can take years to show up. Even if it's been a decade or more since you worked with or around asbestos, you may not be out of the woods yet when it comes to potential health problems. To learn more about how an attorney can help you, check out Nolo's article How to Hire a Mesothelioma or Asbestos Lawyer.
]]>One purpose of any statute of limitations is to keep people from suing over something that occurred many years ago. For asbestos cases, most states have statutory time limits of two, three, or four years (the deadline is longer in some states, shorter in a few). In a wrongful death asbestos case, a "survival" statute might apply, setting a different deadline altogether.
A statute of limitations is said to "run" when the time period in which you are allowed to sue begins. If you miss the applicable deadline, and no special circumstances warrant an extension, you've lost your right to bring an asbestos lawsuit and get compensation from the at-fault party.
Injuries resulting from asbestos exposure are very different from those arising from other kinds of harm, like car accidents. If you are injured in a car crash, the nature and extent of your injuries (and how they occurred) is pretty clear. Mesothelioma and other asbestos-related diseases are progressive, meaning they start out with no symptoms and gradually get worse. Symptoms can appear years or even decades after the person was exposed to asbestos.
The law takes this gradual progression into account. You aren’t required to identify a specific date upon which you received your injury, and the statute of limitations "clock" almost certainly won't start on the day you were first exposed to asbestos. Rather, the trigger is when your symptoms have progressed to the point that a diagnosis of asbestos-related disease can be made. Learn more about why diagnosis is crucial in a "mass tort" case.
The statute of limitations "clock" generally begins to run at the time the plaintiff "knew or should have known" that their injury was caused by asbestos exposure. For most people this occurs at the time of diagnosis of mesothelioma or other asbestos-related illness.
If you're disabled and had to quit working as a result of your workplace-related asbestos exposure, the clock might begin to run on the date you stopped working. If you are disabled as a result of some other condition—such as a back injury or non-asbestos-related disease—the clock will probably begin to run with the date of diagnosis.
In some circumstances the clock will be said to start even without a date of diagnosis, because it would have been reasonable for you to have known that asbestos exposure contributed to your disease. For example, if your union does asbestos exposure screenings, the defendants will argue that you should have known you were at risk for asbestos-related diseases, and that the statutory period began when your symptoms became apparent.
If you've lived and worked in the same state all your life, then your state’s statute of limitations will apply if you decide to file an asbestos lawsuit.
But what if you worked in one state and retired to another, or worked in more than one state? The applicable statute might be determined by where most of your exposure occurred, or by where you lived when you were first diagnosed with an asbestos-related disease.
If the statutory deadline has passed in one state but not another, your attorney might try to file a case in the state with the longer statutory filing period; of course, expect the defendants to argue that the law in the state with the shorter deadline should apply. Jurisdiction (where the case should be heard) can become a complicated legal issue that has to be decided by a judge.
Claimants sometimes develop an asbestos-related cancer years after they initially were diagnosed with a condition like asbestosis. Generally, the cancer is treated as a second injury, which means a new statute of limitations time period applies, even if the asbestosis-related deadline has passed.
Keep in mind that if you settled a lawsuit related to your asbestosis, you probably won't be able to sue the defendants you settled with. Occasionally, defendants in an asbestosis case restrict a settlement to asbestosis injuries (meaning they can be sued again if a different disease occurs) but this is fairly uncommon.
Occasionally a person develops cancer or dies as a result of asbestos exposure without knowing that such exposure was the cause of their illness or death. Often this situation arises because there is asbestos exposure that the injured person did not know about at the time of the diagnosis. If the statutory deadline has already passed, an attorney can argue that the clock should begin to run at the time of discovery of the asbestos exposure, not at the time of illness or death.
Factors such as when you first became noticeably ill, why and when you stopped working, what states you have lived or worked in, and how much you can be expected to know about asbestos as a cause of disease can all play into your right to file a lawsuit. If you have questions about the statute of limitations deadline and how it applies in your particular case, it may be time to talk with an experienced asbestos lawyer.
]]>In this article, we'll cover:
If a preliminary medical exam prompts your doctor to perform follow-up tests for the possibility of mesothelioma, here's a look at the kinds of screening procedures that might be used.
Imaging tests. Your doctor may use a number of imaging tests to screen for asbestos-related health problems. These might include x-ray, MRI (magnetic resonance imaging), PET (positron emission tomography) scans, and CT (computed tomography) scans. The CT scan is the most modern (and most valuable) technique for screening at-risk patients for signs of mesothelioma. That's because the CT scan produces a cross-section image of a patient's lung or abdomen, giving radiologists a view that standard x-rays can't provide.
Fluid removal and testing. If examination of a patient's chest or abdomen indicates the presence of fluid, the doctor may want to drain the fluid and examine it further. This is done by inserting a needle into the chest (a procedure called thoracentesis) or abdomen (paracentesis) and drawing the fluid out so it can be tested.
Thoracoscopy (tissue sampling). In this procedure, your doctor will use a device called a thoroscope to take a look inside your chest cavity. Like a biopsy, a thoracoscopy involves a small incision in your chest and the removal of a portion of tissue for examination. Patients might feel some pressure in their chest area during this procedure, but it is usually relatively pain-free. (While thoracoscopy involves examination of tissue in the chest, a similar procedure uses a tool called a peritoneoscope to examine tissue in the abdomen.)
While there is no cure for malignant mesothelioma, a number of treatment methods—especially when used in combination—can be effective in managing the disease and prolonging life.
Keep in mind that doctors who specialize in the treatment of mesothelioma patients typically use a combination of the therapies described below (called a "multimodal" approach). Also remember that some of the treatment methods discussed below may be in the experimental stages of development.
In October 2020, the U.S. Food and Drug Administration (FDA) approved two drugs for use in combination—Opdivo (nivolumab) and Yervoy (ipilimumab)—to treat malignant pleural mesothelioma that cannot be treated through surgery. This combination is the FDA's first drug regimen approved for treatment of mesothelioma in 16 years.
According to the FDA, Opdivo and Yervoy "are both monoclonal antibodies that, when combined, decrease tumor growth by enhancing T-cell function." And this newly-approved combination compares favorably with chemotherapy treatment. In studies, "patients who received Opdivo in combination with Yervoy survived a median of 18.1 months while patients who underwent chemotherapy survived a median of 14.1 months," FDA says.
Chemotherapy uses anti-cancer medications (called cytotoxic drugs) and chemicals in an attempt to kill malignant mesothelioma cells. A number of different drugs have been developed and tried in mesothelioma patients over the years, but all have achieved only limited success, so chemotherapy is almost always used in combination with other treatment methods. Specific types of chemotherapy treatments for mesothelioma include Alimta (pemetrexed) and vinorelbine.
Radiotherapy (or radiation therapy) involves the use of localized and high-dose radiation to treat malignant mesothelioma tumors. Radiation therapy is almost always used in combination with other mesothelioma treatment methods, like surgery and chemotherapy, and isn't always an option if a tumor is very large or is situated close to vital organs.
Also called PDT, photodynamic therapy involves the use of a drug to sensitize cancerous cells to light, and then the utilization of fiber-optic cables to focus the right frequency of light on the cancerous growth. The sensitizing drug and the light work in concert to produce a toxic molecule that kills the cancerous cells. Like most mesothelioma treatment methods, photodynamic therapy is typically used in combination with other treatment techniques to achieve optimal results.
Angiogenesis is the medical term for the growth of blood vessels that nourish cells in the body, including cancer cells. Drugs called "angiogenesis inhibitors" are used to stop—or at least slow—the angiogenesis of cancer cells and, in effect, starve tumors in mesothelioma patients. A number of experimental anti-angiogenesis drugs are currently in development and evaluation, including endostatin, combrestatin, angiostatin, and thrombospondin.
This kind of treatment tries to boost the mesothelioma patient's immune system and their ability to fight off cancerous cells, while stemming the harshest effects of the disease.
In gene therapy, a gene is delivered directly into the cancerous growth in order to allow drugs to do the work of destroying cancerous cells. This treatment carries some risk, but the idea is to target the tumor itself while leaving healthy cells unharmed (unlike chemotherapy, which kills both cancerous and healthy cells).
Another immunotherapy treatment method for mesothelioma involves the use of small proteins (called cytokines) that occur naturally in the human body. Cytokine protein molecules called interferons and interleukins may be used to successfully block or stunt the growth of malignant cancer cells.
Sometimes surgery can be effective in providing relief from symptoms of mesothelioma, and removal of most of a cancerous growth is possible in some instances. But surgery may not be an effective option (or may not be an option at all) in some cases, especially when a malignant mesothelioma tumor is situated close to a vital organ.
For surgical treatment of pleural mesothelioma (found in the lining of the chest cavity and lungs), there are usually two options: extra-pleural pneumonectomy (EPP) and pleurectomy/decortications. Both procedures involve surgical removal of the pleura, the thin membrane surrounding the lungs and chest cavity, but EPP also involves the removal of the entire lung that is involved with the tumor.
To best understand your options and protect your legal rights in the wake of a mesothelioma diagnosis, you may want to talk to an experienced attorney. Learn more about hiring the right asbestos lawyer for you and your case, and what to expect if you decide to file an asbestos-mesothelioma lawsuit.
]]>With so many people getting sick, it’s easy to see why asbestos lawsuits represent the largest mass torts litigation in U.S. history. Asbestos litigation began to take off in the 1970s. State and federal courts have processed hundreds of thousands of cases, but because many people won’t show any symptoms of illness until decades after exposure, tens of thousands of cases are still pending, with many more filed each year.
Even though companies were aware of the health risks of asbestos by the 1930s, litigation didn’t take off until the 1970s, soon after scientific studies began linking asbestos to cancers like mesothelioma, and conditions like asbestosis.
Perhaps the biggest factor in the asbestos litigation boom came when courts starting accepting the legal theory of "strict liability", so that plaintiffs no longer needed to show negligence on the part of asbestos manufacturers. The key case of Borel v. Fibreboard, which began in 1969 and ended in 1973, was the first significant legal victory by a plaintiff against major asbestos manufacturers using the strict liability legal argument. (Learn more about legal theories of product liability.)
After the Borel case, litigation accelerated and by the 1980s and through the 1990s, asbestos and mesothelioma lawsuits reached their peak.
A class action lawsuit is a special litigation procedure in which one court case resolves a significant number of claims all at once. Class action lawsuits are common in defective product litigation, where there may be hundreds or thousands of potential plaintiffs, but aren't really an appropriate legal remedy in cases involving significant injury or illness. That's the main reason why attempts to create an asbestos-related class action lawsuit have failed.
In the late 1990s. In Amchem Products, Inc. v. Windsor, the U.S. Supreme Court ruled that class certification was not appropriate when individual members of the class lacked substantially similar injuries. Another roadblock was the defendants' immunity from asbestos injury claims brought by new plaintiffs. Two years later, in Ortiz v. Fibreboard Corp., the U.S. Supreme Court again refused to confirm the use of a class action lawsuit in an asbestos case.
The bottom line is that even among asbestos claimants who worked in the same industry or for the same employer, there's too much disparity among individual cases (in terms of severity of illness and impact of the illness on the plaintiff's life) to make a class action appropriate. The best options for efficiently handling a large number of similar cases comes through multi-district litigation (or MDL).
In re: Asbestos Products Liability Litigation MDL No. 875 is the longest-running and largest MDL in history. Based in the Eastern District of Pennsylvania, this MDL began in 1991 and has helped resolve more than 100,000 asbestos and mesothelioma lawsuits.
But MDL No. 875 can’t resolve all lawsuits, especially those filed in state court. And for the most part, it’s also stopped taking on new cases. As a result, some states and localities have created their own rules, procedures, and courts for handling asbestos lawsuits. One of the most notable is the New York City Asbestos Litigation Court (NYCAL).
Today, most prospective plaintiffs will bring their lawsuits as individual cases. Many of these cases involve secondary exposure to asbestos, which can occur when someone exposed to asbestos at work transfers the asbestos to someone else. Imagine a construction worker transferring asbestos fibers to a spouse or child when returning home after work.
Many potential asbestos defendants (production facilities and employers) have declared bankruptcy over the years. To help protect future claimants, a number of these bankrupt entities have created special asbestos bankruptcy funds and trusts, which have distributed millions of dollars to plaintiffs so far.
Alternatively, plaintiffs can sue responsible companies directly. But there aren’t many solvent asbestos manufacturing companies and employers left.
Besides claims over asbestos illnesses that can take decades to manifest, and secondary exposure cases, many new asbestos lawsuits stem from consumer use of baby powder and other cosmetic products that contain talc. When mined, talc will sometimes contain naturally occurring asbestos fibers.
Over the last few years, a number of talcum powder asbestos lawsuits have sprung up, with plaintiffs claiming injuries such as mesothelioma and ovarian cancer. Some of these plaintiffs have obtained large verdicts, a few against Johnson & Johnson. But tens of thousands of cases are yet to be resolved, and with the removal of Johnson's Baby Powder from store shelves across North America, more lawsuits are certainly on the way.
There have been thousands of significant recoveries by plaintiffs suing for asbestos-related injuries, with median verdicts exceeding $1 million. Below are a few of the more significant recoveries.
February 2020: $750M Punitive Damages Award (reduced to $186M)
Jurors in New Jersey ordered Johnson & Johnson to pay $750 million in punitive damages (plus $187.5 million in compensatory damages) to four plaintiffs who claimed that asbestos-tainted baby powder cause them to develop mesothelioma, and that J&J hid the fact that it was selling a potentially harmful product.
Learn more about the different types of damages in product liability cases.
July 2018: $4.7B Plaintiffs’ Verdict
Almost two-dozen women obtained a jury verdict amounting to more than $4 billion in punitive damages and $500 million in compensatory damages. These women alleged that their ovarian cancers were the result of asbestos in baby powder manufactured by Johnson & Johnson.
March 2003: $250M Plaintiff’s Verdict
Diagnosed with mesothelioma in 2001, the plaintiff claimed his cancer came from more than 30 years of exposure to asbestos, and showed that there was asbestos in the insulation in the plant where he worked. The verdict against U.S. Steel consisted of $50 million in compensatory damages and $200 million in punitive damages.
December 2002: $4.0B Settlement
Halliburton agreed to settle more than 300,000 claims alleging personal injuries from asbestos exposure. A few of Halliburton’s subsidiaries declared bankruptcy, and much of the settlement amount went to the funding of an asbestos bankruptcy trust.
If you're thinking about taking legal action over harm stemming from asbestos exposure, learn more about how long an asbestos lawsuit might take, and how much your case might be worth.
]]>It is especially important to have an attorney on your side if you're bringing an asbestos-mesothelioma lawsuit, even moreso if your health is deteriorating due to mesothelioma or some other asbestos-related illness. Read on to learn why an attorney's help is crucial to your case.
If you have an asbestos-related disease, you have probably worked with many different ACPs (or lived with someone who has). For decades, asbestos was considered the "miracle mineral" and was used in many different products, including:
(Learn more about products containing asbestos.)
You may have been exposed to other ACPs without knowing about it. And if you've developed mesothelioma or another asbestos-related disease and never worked with ACPs yourself, you may have no idea how you were exposed to asbestos. Chances are you can’t remember the names of many products you've used over the decades, let alone the manufacturer or those products. This is a very different scenario from being rear-ended on a freeway.
Perhaps the most valuable asset an asbestos attorney can provide is information—collecting and putting together the kinds of documentation it would be impossible (or very expensive) for you to compile on your own. That includes identification of the types of asbestos-containing products you were likely exposed to, starting with a full investigation of your work history. If you were exposed to asbestos on the job and you worked on sites that employed many people, such as commercial building construction, refinery or industrial sites, or in the military, your attorney may already have information on what was used at the site. For example, you may not know what brand of fireproofing you scraped off to do other work, but someone else who worked on the building a few years earlier may remember what was sprayed on.
An attorney may also need to retain an expert, such as an industrial hygienist, to establish that a particular product contained asbestos or that the way you worked with it exposed you to asbestos. Finding and hiring experts is a major component of making an asbestos case.
A crucial part of any personal injury lawsuit is showing that there was an injury in the first place, and that it was caused by the defendant. If you are bringing an asbestos case, you have been diagnosed with an asbestos-related disease. In the case of asbestosis, the diagnosis was probably made on the basis of X-rays or CT scans. If you have mesothelioma or some other form of cancer, a biopsy was probably done.
An asbestos attorney will retain medical experts who will review your medical records, radiology, or pathology reports to establish that your disease was in fact caused by exposure to asbestos. Medical experts will prepare reports about your condition and give testimony in depositions or at trial. This establishes causation, a key element of your case. Without expert medical testimony, a fair injury settlement is unlikely.
Asbestos is dangerous from the time it is removed from the ground. Liability for an asbestos-related disease can extend to asbestos mining companies, distributors of raw asbestos fibers, and manufacturers of ACPs. Some mining companies and manufacturers of products which contain large amounts of asbestos have gone bankrupt, which means they can't be sued in a regular court. Many of the major manufacturers and suppliers of ACPs who have gone bankrupt have established asbestos claims bankruptcy trusts. These bankruptcy claims need the same medical and exposure evidence as in standard cases. Your attorney will make sure your bankruptcy claim is prepared properly and receives the right attention.
In a civil case, there may be numerous defendants. Each defendant has the right to take your deposition, ask written questions about your exposure, and ask for medical proof. Many defendants will file motions for summary judgment.
An attorney will be able to coordinate a deposition, produce evidence, and respond to legal challenges for you. An attorney can also recognize when a defendant is asking for information it is not entitled to, when defendants have made procedural mistakes, and what a reasonable settlement offer looks like. In short, an experienced attorney will protect your rights at every stage in the proceedings, and will prevent the defendants from taking advantage of you. Get tips on finding and hiring the right asbestos lawyer for you and your case.
]]>When an asbestos lawsuit is filed, it will be assigned a settlement conference date and perhaps a trial date, depending on the jurisdiction. The settlement conference date might be anywhere from a few months to a year after the filing of the case, depending upon the court’s routine procedures. At the settlement conference, the attorneys for each side will tell the judge if they think the case is ready to be assigned a trial date. If the case is not ready, it will be assigned a future settlement conference date. When the case is ready for trial, it will be assigned a trial date, likely anywhere from six months to a year later.
The trial date is important. Even though most cases don’t actually go to trial, having a trial date sets a deadline for how long the discovery process will be, when expert reports are due, when witness lists must be exchanged, and so on. It also provides a trigger for settlements, many of which will occur at the last minute before going before a trial judge.
How fast your case will proceed through the court system also depends upon what court the case is filed in. Some jurisdictions with large numbers of asbestos cases have special asbestos departments and can move a case through relatively quickly. Other courts mingle asbestos cases with all their other cases, which causes delays. Trials can be postponed again and again for lack of a courtroom. Federal courts are generally slower than state courts.
If you are elderly (over age 70) or in ill health, you may be able to have a case proceed along a fast-track or preferential basis, with a trial date coming sooner than it normally would. Your attorney will need to file a motion for preference in trial setting. If you are terminally ill with mesothelioma or some other condition, supporting medical evidence will need to be provided. The requirements vary from state to state.
For example, in California, New York, and Illinois, any person over 70 years of age may bring a motion for preference, but the requirements for non-age-related motions vary. In California, a motion for preference may be brought by any person with “an illness or condition raising substantial medical doubt of survival of that party beyond six months.” (CA CCP § 36.) In New York, a motion for preference on grounds of illness requires an allegation that the plaintiff’s “terminal illness is a result of the conduct, culpability or negligence of the defendant.” (NY CPLR § R3403 (2012).) In Illinois, there is no specific provision for terminal illness but only a requirement of showing of good cause. (735 ILCS 5/2-1007.1.)
Once a motion for preference has been granted, the deadlines for other litigation procedures are shortened to allow the case to move through the judicial system more quickly. Your deposition might occur within weeks of filing the case, rather than months, and the attorneys on both sides will have less time to respond to motions.
Some asbestos cases are more complicated than others. A career insulator who has workplace asbestos exposure at hundreds of job sites has more potential defendants than a teacher whose only exposure to asbestos occurred during a few months of renovation work in a school. The insulator’s case will likely take longer than the teacher’s due to the number of the defendants and witnesses.
The extent and quality of the evidence also affects the timeline. For your attorney to do the best job possible representing you, he or she will need to gather evidence related to your asbestos exposure. Such evidence includes your testimony, the testimony of other witnesses, documents you have, and documents provided by defendants. Your asbestos case may also need an expert witness or two. If there is a substantial amount of any of this evidence, it will need to be reviewed by both sides and may lead to additional defendants. When new defendants are brought into a case, they are entitled to have the time they need to prepare a defense, which might require moving a trial date.
It’s possible that there will be one or more appeals in your case. Your attorneys might appeal a decision granting summary judgment to a defendant. Either side might appeal a motion which was granted. If the case goes to trial and to verdict, the losing party might appeal the verdict. Appeals are not routine and will have a different schedule and procedure than a case in a trial court. Your asbestos attorney will be able to advise you on the likely timeframe.
Many of the original manufacturers and suppliers of asbestos fibers and asbestos-containing products have set up bankruptcy trust funds for asbestos victims. While these trust funds will not be actively involved in litigation, they require the same proof of exposure and illness that active defendants do, and they are also processing thousands of claims. If they request additional information from your attorney or are simply backlogged, obtaining settlements from them can take a long time. It is not unusual for bankruptcy payments to still be pending after a case has otherwise resolved in the courts.
]]>First, the basics: A settlement (in the context of a personal injury case) is an agreement between an injured person and the party responsible for causing the injury, in which the injured person agrees to accept some amount of compensation in return for releasing the at-fault party of any future liability for the underlying accident.
A personal injury settlement will include compensation for such things as pain and suffering, lost wages and future income, medical bills, and other expenses incurred as a result of the injury (household assistance, medication, and so on). Your attorney might also seek compensation for loss of consortium for your spouse.
The dollar amount of any asbestos settlement depends on many factors, including the nature of the asbestos exposure, the evidence, and the extent of the claimant's illness.
An asbestos case is different from most other personal injury cases in several ways, including the number of potential defendants and the fact that both asbestos exposure and injury are progressive. In a typical car accident case, there will only be one defendant (the other driver), and the plaintiff’s injuries are usually fairly easily to ascertain. In an asbestos case, there can be dozens of defendants, diagnosis and causation can be disputed, and liability can be unclear.
Asbestos cases are complicated by the passage of time between first exposure to asbestos and development of an asbestos-related illness. Evidence can get lost or forgotten, potential defendants can go out of business, and other illnesses or medical conditions can mask the symptoms of an asbestos-related disease.
For these reasons, while a reputable attorney will probably not take a case if they think they can’t recover, it is difficult for even an experienced litigator to say what kind of settlement(s) (from whom and how much) an asbestos claimant is likely to receive.
Damages in a personal injury case include economic losses (for example, medical bills) and non-economic losses (pain and suffering). More than one party can be liable for these damages. In the American legal system, the liability is ideally split proportionally across those who are responsible. This means that defendants who contributed only a little to the injury will pay less than those who have greater responsibility.
While determining shares is easy if dividing a pie, it is much harder with determining exposure to asbestos. Because asbestos-related diseases are cumulative, all exposure counts, even very small amounts. It is also harder to determine the amount of a claimant's damages than it is to know the size of a pie. Medical bills and lost wages can be established with reliable records, but pain and suffering is subjective.
When a case is filed, the process of gathering evidence has just begun; as the case proceeds with expert witness investigations, review of construction records or purchase invoices, and other evidence collection, new defendants will be discovered and some existing defendants will be able to exonerate themselves. At the outset of the case, your asbestos attorney will probably not be able to tell you which defendants will settle and which will be dismissed.
In a case that goes to trial, a jury will assign a value to the plaintiff's losses and relative amounts of liability to the defendants. When a case is settled out of court, however, the monetary damages are determined through settlement negotiations with each defendant.
Generally speaking, settlement negotiations in an asbestos case will take into account length of exposure, type of exposure, and the nature of the disease. Damages will generally be higher for cancers like mesothelioma than for asbestosis, for example. If the exposure consists of twenty years as a carpenter and four automobile brake repairs, the drywall and joint compound defendants will probably pay more than the brake shoe manufacturers.
However, the quality of the evidence will affect settlements. If a plaintiff never paid attention to what kind of joint compound was used, the manufacturers of joint compound will point the fingers at each other and will probably settle for less than they would if a plaintiff identifies the specific product under oath in a deposition.
Defendants (or their attorneys) also have varying attitudes toward settlement. Some will negotiate a reasonable settlement fairly early in the litigation, while others will fight against paying anything and hold out for trial. While the likelihood of actually going to trial is small, it will be harder for your attorney to estimate the outcome of your claims against these “holdout” defendants.
While it's natural to wonder about potential outcomes of your case, don't expect any guarantees from an attorney. Learn more about what to ask an asbestos attorney during an initial consultation.
]]>If there is a chance that the asbestos material will be disturbed, or if you just want peace of mind, you have options, including fixing or removing the problem. We'll discuss those options in this article, and we'll explain what to keep in mind when hiring an asbestos professional.
Fixing an asbestos problem usually means either covering or sealing the asbestos material.
Use of a sealant can either bind the asbestos fibers together or coat them with a material that will prevent their release. Insulation (around pipes or heating units) can often be repaired this way.
Covering means enclosing the asbestos material to prevent any fibers from being released. One example of covering/enclosing is wrapping asbestos-insulated piping with a protective jacket.
Keep in mind that while repair is typically cheaper than removal, repair can also make any future removal more difficult (and also more costly). And make sure any repair work is done by a professional, since improper handling of asbestos can create a new health hazard where none may have existed. More on hiring an asbestos professional a little later on.
Since it's usually the most expensive solution, and because it typically presents the biggest risk of actually causing the release of asbestos fibers, removal should probably be your last option, unless:
If you're thinking about hiring a professional to help with your potential asbestos problem, the kind of expert you'll need depends on the type of material you're dealing with, and the details around what needs to be done.
An asbestos professional can:
It's usually a good idea to use two different professionals (or two different firms), one to assess the need for corrective action in connection with the asbestos material, and the other to actually perform the work of fixing or removing the problem. That way you can steer clear of any potential conflict of interest.
When you're choosing an asbestos professional, check each candidate's credentials very carefully, and ask each to provide documentary proof of their federal or state-approved training. You might also want to ask for references from previous clients, and follow up with those customers. Try to get a cost estimate from more than one candidate, and make sure that any assessment will include both a visual inspection and lab analysis of suspected asbestos materials. Finally, before any work is done, ask for a written contract that includes details of the work plan.
A good starting place might be your local health department, or the regional office of the U.S. Environmental Protection Agency. These agencies may be able to point you to licensed asbestos professionals in your area.
Sources: U.S. Consumer Product Safety Commission (CPSC), U.S. Environmental Protection Agency (EPA), American Lung Association.
]]>"Costs" and "fees" are two different things in a legal case. Costs are the expenses that the asbestos attorney or firm pays in order to move the case along toward settlement or judgment. Costs typically include:
Most plaintiff’s attorneys are cost-conscious and try not to spend any money unnecessarily. If the attorney is unable to settle, the attorney will usually be responsible for the costs, but make sure that's spelled out in your fee agreement with your lawyer.
Attorney’s fees are paid to compensate the attorney for his or her time, as well as the time of the firm's support staff. That includes researching and drafting the complaint and motions, appearing in court, calling witnesses, reviewing documents, taking and defending depositions, and preparing for and putting on a trial. In certain types of cases, attorneys are paid by the hour for all of this time.
But in almost all asbestos cases, rather than billing by the hour, the law firm collects a percentage of any settlement or judgment under a contingency fee agreement.
An attorney will generally first take the contingency fee from the settlement or judgment, and then deduct costs from the remainder. For example, if your attorney has a 40% contingency fee and you settle with a defendant for $10,000, your attorney will take $4,000, pay any costs out of the remaining $6,000, and pay you the balance.
What this means practically is that early on in your case, when the start-up costs are accruing rapidly, your settlement may not be enough to cover the attorney’s costs. Early settlements tend to be smaller. Costs also increase at the later stage of a case when both sides are preparing for trial, but settlements are likely to be larger by that time.
In some situations your attorney might choose to disburse some of the money to you anyway and wait to satisfy the costs from later settlements. Unless such an agreement is explicit in your contract, paying you in advance of satisfying costs is done at the discretion of your attorney.
A contingency fee is often set at 33 to 40 percent for the early stages of the case. Some attorneys will raise the percentage for settlements reached after the case is assigned a trial date, because at that point the case begins to demand more attorney time. If an appeal is necessary, the attorney’s fee might go up as part of the contract, or your attorney may want to draw up a new contract. Your attorney might also reduce fees for settlements with bankrupt asbestos defendants.
If you sign a contract with one firm and the firm refers all or part of your case to another attorney—perhaps because of jurisdiction issues—you will need to sign a contract with the second attorney as well. The terms should be the same, but there might be clauses in the contract identifying how the firms will split fees. This should not result in additional cost to you. Referrals are not unusual—especially if your work-related asbestos exposure occurred in multiple states, or while you were in the military—and rest assured that a referral is not a reflection on the value of your asbestos case.
The situation is different if for some reason you and your attorney cannot work together. If you and your attorney part company and you take your case to a different firm, the attorney you initially signed a contract with has a right to recover any costs advanced, and any fees for representation, from any settlement your new firm makes. This is known as a lien. The attorneys will sort this out between themselves. But note that the second firm has no obligation to give you an identical contract.
Learn more about finding and hiring the right asbestos lawyer for you and your case.
]]>Because asbestos cases are a specialized legal niche, it's important to understand how asbestos-mesothelioma lawyers operate and how to hire the right one.
Asbestos claimants who have been diagnosed with mesothelioma (especially those with a history of working with or around asbestos) usually have a good chance of recovering at least some measure of compensation ("damages"), either from the company that manufactured or installed the asbestos, an employer, or from an asbestos victims' trust fund. But these cases can get complex, especially from a medical standpoint, since mesothelioma often shows up 10 to 40 years after exposure to asbestos. Having an experienced attorney on your side—especially one with a record of success in asbestos lawsuits—can make all the difference.
Finding the right mesothelioma lawyer can be key to your case, but it can also take time and effort. If you're not feeling well, try to get help from a relative or friend. As discussed below, you might find you get the best results if you research a lawyer's qualifications and track record, and then interview several candidates.
Ask former colleagues. If you've been diagnosed with mesothelioma, chances are people you worked with at the time of your exposure have also been diagnosed, and they may have already hired a lawyer and filed a lawsuit. If they have achieved a good result with a lawyer they like and respect, this is one good place to start.
Using Nolo's websites. A number of attorneys featured on Nolo handle asbestos-mesothelioma cases (full disclosure: lawyers pay a fee to list with Nolo). These attorneys have filled out detailed profiles related to their schooling, expertise, and professional background, and have been vetted in terms of their professional standing. To contact a nearby asbestos-mesothelioma attorney, you can use a number of tools accessible right on this page, including the "Chat" and "Talk to an Attorney" features.
Investigate lawyers online. Because mesothelioma cases can be so profitable, many law firms spend big dollars on Internet ads and websites. Just Google mesothelioma lawyer and you'll find a long list. Click on a few ads or websites and you'll see that everyone claims to be the best of the best.
How do you cut through all this hype to focus on a short list of hopefully excellent mesothelioma lawyers? Take a look at the legal information each lawyer provides. In our experience lawyers who provide well-written, in-depth information demonstrate a superior sensitivity to client needs. By the same token, we distrust lawyers who say little more than "I can get you millions pronto—trust me."
Check a lawyer's references. A good mesothelioma lawyer should be able to provide you with the name and contact information of a few satisfied clients. Of course, the lawyer will have to get the permission of the client, but this can usually be arranged. Although you'll only be given the names of very satisfied clients, it can still be helpful to talk to someone who has worked with the lawyer you're considering.
Interview the lawyers. Once you develop a short list of candidates, contact their offices (again, get help if you need it). Request a case evaluation and, if possible, arrange a personal interview. Ask who exactly will manage your case (non-lawyer case managers are often employed in larger firms). Find out who you can call or email if you have questions, and how long it will take to get back to you. Anticipating these questions, many law firms will give you a written overview of what to expect. Especially if it's detailed and guarantees that all calls and emails will be returned in 24 hours, this is a good sign. Learn more about what to ask an asbestos-mesothelioma lawyer at your free consultation.
Ask about fees and costs. Mesothelioma lawyers charge a contingency fee for their legal representation (usually 30% to 40 percent of any recovery you receive) plus additional costs to prepare your case. But keep in mind that asbestos-mesothelioma cases can be very complex. If you find an attorney who comes well-recommended and has a lot of experience (and a record of success) representing mesothelioma clients, a few percentage points on a contingency fee probably shouldn't dictate whether or not you hire that attorney.
Find out how are costs handled. A good attorney will deduct costs (things like filing fees and expert witnesses' compensation) off the top of any asbestos settlement or award, before the money is divided and the attorney takes their agreed-upon percentage. That way you and the attorney share payment of the costs. And a good attorney will give you receipts showing that all costs incurred were specific to your case—meaning you're not being saddled with part of the bill for the firm's general operating expenses. Learn more about how asbestos lawyers are paid.
]]>If you've been diagnosed with mesothelioma, an asbestos attorney will probably be willing to consider your case without any sort of initial medical exam, since mesothelioma is always linked to asbestos exposure. The same is true if you've been diagnosed with asbestosis or some other asbestos-related disease. If you don’t have symptoms of an asbestos disease, or have not been diagnosed with one, the attorney may want to take the case on a conditional basis.
If so, be sure to get clear answers on what additional steps you need to take, and when you can expect your potential case to be reviewed again. Also, a state law called the statute of limitations will determine the amount of time you have to file a lawsuit, so ask what the attorney will do if that deadline is close.
If all or a significant amount of your exposure occurred in a different state than where you now live, you should also ask if the attorney is able to sue defendants in the exposure state, or if the case can be referred to another attorney who does practice in that state.
Asbestos cases are customarily taken on a contingency fee basis, meaning that the attorney will take a percentage of whatever you recover via settlement or court judgment, rather than billing you by the hour. The attorney will also usually advance "costs," such as court filing fees or document copying expenses, and deduct them from your recovery. 33 percent is a standard contingency fee.
Before signing a fee contract, be sure you understand how the attorney’s fees are calculated.
The first question for many claimants is, “How long will my asbestos case take?” If you are very ill, ask the attorney if the court where you're filing your asbestos-mesothelioma lawsuit has a process for getting your case “fast track” or “preferential” status.
Regardless of your health, you should ask some other questions about timing:
The second question for many people is, “Will this go to trial?” The answer is usually “No,” because very few cases make it that far, but you should ask what this law firm's experiences has been in these kinds of cases, especially if you have a strong preference against going to trial.
A reputable asbestos attorney will probably not estimate the dollar value of your potential claim. The size of any settlement you receive will depend upon a number of factors, including how serious your illness is, how and when you were exposed to asbestos, whether the defendant is solvent or bankrupt, and how much your illness has affected you financially.
However, you can ask what sort of companies you are likely to be making claims against and how many of them there are. Although a large number of defendants doesn't guarantee larger settlements, knowing the size of the case will give you a picture of how involved it is likely to be.
Additionally, many of the manufacturers and suppliers of asbestos-containing products have filed for bankruptcy and established trust funds for asbestos claimants. This may be a significant part of your case, so you should ask what bankruptcy claims are likely to be made, and how long they take.
For a lawsuit to work well, the client and attorney need to be able to trust each other. If you don’t understand something the attorney has said to you in answer to any of your questions, ask again. You should also ask about the other people in the office you are likely to be interacting with: paralegals, legal secretaries, or other assistants.
Finally, although you are hiring a lawyer, having an active lawsuit requires some participation on your part. Be sure to ask what your obligations as a client will be. (More tips on finding the right asbestos lawyer and being a good personal injury client.)
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