You may have heard of asbestos cases dragging on for years, while others are resolved in a matter of months. What influences the timeline of an asbestos case? A number of factors are at work. The injury lawsuit process (litigation) has several stages, the length of which will be determined partially by the court. Other variables include the health of the plaintiff, his or her work and exposure history, the defendants in the case, and the jurisdiction. Some cases are more complex factually than others, and some jurisdictions have more streamlined procedures in place. Let's take a closer look.
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.