Frequently Asked Questions about Asbestos Litigation
This page contains answers to common questions asked about asbestos personal injury litigation. Detailed information about other aspects of asbestos injury may be found on other pages of this website.
- Does a lawsuit have to be filed for a victim to be compensated for asbestos disease?
- What is involved in an asbestos lawsuit?
- How are attorney fees handled in asbestos litigation?
- Should an asbestos case be filed in a state or federal court?
- How do I find a lawyer to handle my case?
Does a lawsuit have to be filed for a victim to be compensated for asbestos disease?
Ordinarily Yes. Although the companies that sold asbestos products are clearly responsible for the diseases caused in those who used the products, nearly all the companies continue to deny any responsibility when presented with a claim. As a result, it is highly unlikely that any individual can expect to be compensated without some form of legal action. In some states, and in some situations, workers compensation coverage may provide nominal relief to a disabled victim. However, generally, workers compensation benefits do not provide meaningful relief.Back to Top
What is involved in an asbestos lawsuit?
Not every asbestos lawsuit is the same. However, generally in preparation of an asbestos lawsuit, the following activities will take place:
- (1) Pre-suit preparation
- (2) The filing of the lawsuit
- (3) Discovery
- (4) Trial
- (5) Appeal
Prior to filing a lawsuit, you will be asked to sign an attorney-client contract by the lawyer you have chosed to represent you. Before contacting a lawyer, your doctor, or your work health surveillance project may have told you that your lungs appear scarred on x-ray, or you are having trouble breathing, or you may have been diagnosed with cancer.
The lawyer will want to know where you worked, who you worked with, and what asbestos products you can recall seeing on the job. He will want to know the type of work you performed, the number of years you were involved in work where asbestos was used, and the names of friends or acquaintances you worked with on the job.
You will be asked to also sign employment, social security information and medical releases. These documents will be needed by the lawyers to gather as much information as possible about your health and work. The lawyers may then follow-up by contacting your co-workers or friends to ask them what they remember about asbestos on the job, and the nature of asbestos exposure you would have received on the job.
After as much information as possible has been gathered before a suit is filed, the lawyers will prepare a formal complaint. That is a document which is filed in court and then "served" on the defendants. In this document the defendants are informed about the nature of your claim, the legal basis for recovery, and told they must respond or the judge will enter a judgment against them.
The defendants will then either file an "answer" to the complaint denying any resposibility, or file a motion to dismiss which asks the judge to dismiss the lawsuit and not require them to answer. Motions to dismiss are based on "legal grounds." The motion may claim you haven't stated a valid legal basis for recovery in your complaint. It may say that you did not file your complaint within the period of time the law requires after you knew or should have known you had a disease -- this is called a statute of limitation defense. In some situations, the defendants may demand a "more definite statement" claiming they don't understand why they have been sued. Ordinarily, such motions in the lawsuit create a month to three months of delay. If you are dying of cancer, the defendants may use such motions as a tactic to delay your case, hoping you will not live long enough to see trial.
After any pending motions to dismiss have been denied, and the defendants have answered, you may expect written questions from them in the form of interrogatories. You will be required to answer the questions they ask to the best of your ability, and will have to swear to the answers under oath. The defendants will want to obtain all your past medical records. This is done in an effort to belittle the extent of your injuries, to find other possible causes for you damages they can place some blame on -- such as cigarettes -- or to try and make some argument the records show you have known about your asbestos disease longer than you claim. They hope to be able to show you knew or should have known asbestos made you sick at a time the statute of limitations would have run before you filed suit. Thus, if successful in the effort, they can get your case dismissed and not compensate you.
The defendants will also take testimony of yourself and any witness before trial. This process is called taking a deposition. The defendants in these depositions hope to develop testimony showing you can't prove it was their product that caused your injury. They may try to show you have bad health habits, such as drinking or smoking that has harmed your health. They will try to get you to admit you knew you had an asbestos problem years before the suit was filed in an effort to convince the judge or jury you waited to long to file suit.
If your case does not settle, and is not dismissed, the judge will eventually set a trial date. The trial proceeds as follows: (1) Jury Selection; (2) Preliminary jury instructions by the judge; (3) Opening statement by your lawyer; (4) Opening statement by the defense lawyers; (5) Witness and documents presented by the plaintiff's attorney; (6) Resting of the plaintiff's case; (7) Motions by the defense attorneys out of the presence of the jury asking the judge to dismiss your suit saying you did not prove your case; (8) The defense case including their witnesses and documents; (9) Resting of the defense case; (10) Rebuttal of the defense case by witnesses and documents presented by the plaintiff if necessary; (11) Jury instructions; (12) Closing by the plaintiff's attorney; (13) Closing by the defense attorney; (14) The plaintiff's rebuttal closing; (15) deliberations; and finally, (16) verdict.
If the plaintiff prevails in the lawsuit and the jury awards fair compensation, you may expect an appeal of the verdict. The appeal will, however, require the defendant to "post a bond" in the amount of the verdict awarded by the jury.
How are attorney fees handled in asbestos litigation?
Getting a lawsuit to trial may take several months or two or more years depending on the court. Preparation for the trial will require the hiring of expert witnesses to educate the jury about medical and other issues in the case. The cost of travel and depositions may run into several thousand dollars. Ordinarily, the lawyer representing the plaintiff advances all initial costs associated with suit preparation and trial. Some expenses may be recovered if there are early settlements with some defendants. Attorney fees are usually based on contingency fee contracts where the lawyers receive some percentage of what is recovered for the victim. In this scenario, if there is no recovery, there is no fee.Back to Top
Should an asbestos case be filed in state or federal court?
If possible, asbestos personal injury cases are usually filed in state court. Due to a quirk in federal court practice, all asbestos cases in federal court that have been filed since 1990 have been assigned to one judge in Philadelphia. That judge has never allowed a case to be tried in federal court for punitive damages, thus protecting the defendants from exposure to the full extent of damages permitted under state law. Because of this, since the defendants recognize the federal court will protect them, they generally try to do everything they can to get the case into federal court while the victims do everything they can to stay out of federal court.Back to Top
How do I find a lawyer to handle my case?
Asbestos litigation is an area in which a select number of firms have a good deal of experience and knowledge. Due to the availability of lawyers to broadcast advertising over the internet, there is a wide degree of knowledge and ability among the lawyers who hold themselves out as "experts" on the internet. Neither classactionlitigation.com nor asbestos victims information provide legal services or advice. However, the best advice we can give anyone seeking legal services is not to rely solely on the fact that a lawyer has a website as a gauge of his ability.
If you are a victim and a union member, you might be well-advised to contact you union national headquarters and ask them to recommend a lawyer they believe experienced in your area. If you are relying on a website advertisement, the phone directory, or any published solicitation for your business, and you are a victim with a serious injury, do not be shy about asking the lawyer for his qualifications before you hire him. The time you spend hiring the correct lawyer for your problem is well-spent.
Ask the lawyer: (1) How many cases he has actually tried; (2) where, and (3) what the results were? Ask the lawyer how many cases his firm has handled and what types of diseases were involved. Ask the lawyer if he intends to actually handle your case personally, or whether his intentions are solely to refer your case to another law firm in exchange for a portion of the fee. If a lawyer cannot honestly tell you he has tried several cases, that he will be involved in handling your case, and that his firm has the experience you need, you might want to consider a different lawyer.
Even if you are not a union member, you might want to call up the local union for one of the building, insulation or construction trades to get their opinion on who might be best to handle your case. In short, take time to select the right lawyer for you.Back to Top