This is the question everyone wants answered. After all, who wants to go through the time, inconvenience, and cost of filing an asbestos lawsuit if there will be no significant recovery? But as with any kind of injury-based lawsuit, the value of an asbestos case depends on countless variables. A good attorney can let you know what plays into a settlement and what the firm’s prior experience in similar cases has been, but every case is unique. There are, however, a number of key factors that will have the biggest impact on the value of an asbestos-mesothelioma case.
Economic damages measure how much money a person has lost due to their asbestos-related disease. The most easily ascertainable of these costs is medical expenses, which are measured by medical bills and out-of-pocket expenses, such as pharmacy costs and provider visit co-pays.
Damages from loss of income depend upon both the amount of the income and the number of years impacted. Someone whose only income is social security benefits and who has already outlived normal life expectancy will have a much smaller income-related claim compared with a person earning $75,000 annually who is forced to retire due to disability at the age of 50.
It’s important to keep in mind that if you are insured, either privately or through Medicare, the insurance company will probably try to recover (from your settlement) the money it has spent for your medical treatment. This is allowable, but your attorney will make sure that the insurer is not seeking to recover for treatment of other health issues not related to your asbestos case. (Learn more about Medical Insurance Liens in Personal Injury Cases.)
"Pain and suffering" (the most common type of non-economic loss) is difficult to calculate, because it's an attempt to put a dollar figure on an intangible thing. As a rule of thumb, medical costs provide a marker of pain and suffering; a person who has incurred $100,000 in medical costs and has spent six months in and out of the hospital almost certainly has experienced more pain and suffering than a person with $10,000 of medical costs and a handful of doctor visits.
However, the medical costs only indicate a degree of pain and suffering; the dollar value is still subject to interpretation.
Deposition testimony also provides significant evidence about how your disease has affected your life and your "loss of enjoyment of life." This is one reason it is important to give a deposition even if you don’t know much about your exposure or the defendants in the case. (Learn more: What Will Happen at My Asbestos Lawsuit Deposition?)
Some asbestos defendants have more assets than others, and two equally culpable defendants might settle for different amounts. Further, a defendant’s financial status can change during the course of the case. An asbestos defendant might go bankrupt, and an already bankrupt defendant might make changes to how it distributes its trust fund.
Many bankrupt asbestos defendants determine the amount they will pay on the basis of a grid or matrix, determining the base by the nature of the disease and the amount of the exposure. In other words, a person with asbestosis who has six months of exposure to a defendant’s product will receive a smaller settlement than a person with mesothelioma who has six months of exposure, or a person with asbestosis who has ten years of exposure. Your attorney can reject settlement offers from bankrupt defendants if they seem unfair.
Your attorney will probably sue many more defendants than you will actually settle with. This is because it is easier to include potential defendants and weed them out as evidence is gathered, rather than add additional defendants later. Some defendants will settle for small amounts early just to get rid of the case, while others will hold out and fight, perhaps all the way to trial.
Exposure and Proof
A defendant’s liability in most personal injury cases is measured by the legal standard of “more likely than not.” This is a relatively low threshold, but it still means that proof of fault is needed. The more clearly you can identify how you were exposed and who was responsible for the exposure, the better the chance of a fair settlement.
Because asbestos-related diseases are cumulative and all exposure to asbestos contributes to the illness, a defendant whose product you only worked with a few times is as much at fault as a defendant whose product you used for decades. However, a defendant with a relatively light contribution to the illness will generally be responsible for a much smaller amount of the damages.
The major manufacturers and suppliers of asbestos fibers and products are now bankrupt, and the only financially solvent defendants in your case might not be responsible for the majority of your damages. This means that the value of the case may seem small even with excellent proof and high damages. This is an unfortunate reality of asbestos litigation.
Should I Sue?
If you have a diagnosed asbestos-related disease, it’s valuable to consult with an attorney even if you think the case is weak. An attorney who has done significant investigative work-up of products and jobsites might be aware of exposures that you did not even know you had. Since an asbestos attorney will almost certainly offer a free consultation and work on a contingency fee basis, the financial risk to you is low. Learn more about How Asbestos Lawyers are Paid.