If you're thinking about filing an asbestos lawsuit, one of your first questions is likely to be: "How much will I recover?"
While asbestos cases often share certain similarities, a reputable lawyer will probably not tell you exactly how much your case is worth. Too many factors can influence a settlement—or, in the case of a trial, a jury verdict—to make predicting a dollar amount a worthwhile exercise. But there are still some important things to keep in mind when it comes to the potential value of an asbestos case.
A settlement is intended to compensate a person for an injury they sustained, and to put an end to any ongoing or future legal action related to the injury. As with most kinds of personal injury cases, a large majority of asbestos claims will settle before a court trial takes place, and some will settle before a lawsuit is even filed in court. (Learn more about asbestos settlements.)
Asbestos defendants 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 the type of asbestos-related illness suffered by the plaintiff, the nature and extent of the plaintiff's exposure to asbestos, the credibility of the evidence, and the defendant's financial status. 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).
The largest component of damages in a personal injury lawsuit is generally the "pain and suffering" that arises from the injury. Since a defendant can’t compensate for such pain and suffering by healing the plaintiff, compensation takes the form of money. But how do you put a dollar value on pain and suffering?
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.
Besides pain and suffering, a plaintiff is entitled to money lost as a result of the illness. This includes medical costs, lost income, and the costs of hiring someone to do work you can no longer do yourself. Medical expenses will be determined based on billing records or expert testimony about the value of a service. 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.
The value of your lost income will be determined based on how much you were earning at the time you began to lose money from work because of your illness, and how much longer you would be expected to work if you were healthy. If you have 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, you may have damages for pension 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.
Besides proving your injury, you need to prove that a defendant is liable. The better your evidence that you were exposed to asbestos because of a defendant’s product or activities, the greater your chance of a 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 award is ultimately up to the jury.