For many people, thinking about filing an asbestos claim brings up questions about the outcome: the likelihood of receiving a settlement, of going to trial, of winning or losing. Like all injury claims, most asbestos cases will reach an out-of-court settlement or some other resolution before a trial needs to take place, but asbestos cases also raise some unique settlement-related questions.
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.