Understanding Asbestos Lawsuits
If a person believes that he or she has been injured by the misconduct of another person or company, that person can seek compensation for the injury from the person or company they believe is responsible by filing a lawsuit. The person seeking compensation is called the plaintiff. The person or company that compensation is being sought from is called the defendant.
If the plaintiff has been wronged by the misconduct of more than one person or company, then the plaintiff must sue more than one defendant. Asbestos cases will sometimes have as many as forty or more defendants, because the plaintiff may have been exposed, over the course of his or her career, to asbestos products made by many different manufacturers.
Asbestos Law Procedure
The lawsuit begins when the plaintiff's mesothelioma attorney files a document called a complaint in court. The complaint will identify all the defendants, contain statements called allegations (because they have not yet been proven to be true in a court of law) of what the defendants did wrong, and detail how that wrongful conduct has harmed the plaintiff. Copies of the complaint are served, or delivered, to each defendant, to put them on notice that they are being sued.
Filing an Answer
Each defendant then has a certain amount of time (usually thirty days) to file a document known as an answer. The answer will contain statements that either admit or deny (the important allegations are always denied) the allegations contained in the complaint. The answer will also contain any affirmative defenses that the defendant wishes to assert, and these will be in the form of allegations.
For example, the defendants in an asbestos case may allege (make an allegation) that the plaintiff did not file his or her lawsuit before the deadline (called the statute of limitations) established by law.
The burden of proof in an asbestos lawsuit is a "preponderance of the evidence," which essentially means that the party (the plaintiff and defendants are called "parties") with the burden of proving the truth of an allegation must prove it more likely than not that the facts contained in the allegation are true. Each party has the burden of proof on its own allegations. So the plaintiff has the burden of proving the facts alleged in the complaint and denied in the answer, and the defendant has the burden of proving the facts alleged in the affirmative defenses.
The Discovery
Once the lawsuit is begun by filing the complaint, the plaintiff's mesothelioma attorney and the defendants' attorneys can engage in discovery, where each side learns facts available to the other side. This information is provided in three forms:
- The plaintiff answers a standardized set of written questions (called interrogatories) that must be answered in writing, under oath, with the assistance of the plaintiff's mesothelioma lawyer.
- The plaintiff must sign written authorization for the defendant to obtain the plaintiff's medical records directly from the hospitals or doctors that have given the plaintiff medical treatment. Often, there are also authorizations to obtain Social Security records indicating where the plaintiff has worked, and the plaintiff's military records, if any.
- Often, the most critical item of discovery is called the deposition. In their home or in a lawyer's office, the attorneys for the asbestos companies are permitted to directly ask the plaintiff questions. The plaintiff, who will always have his or her mesothelioma attorney present, must answer the questions (unless they are improper, in which case the plaintiff's lawyer will object and instruct the plaintiff not to answer) under oath. There will be a stenographer present, who will make a typewritten transcript of all the questions, answers, objections and so forth. Sometimes, the plaintiff's own attorney will be asking the questions, in order to preserve the plaintiff's testimony. Often, these types of depositions are recorded on videotape, to be played at trial.
The Trial
Once the discovery process and pleading process are completed, the case is ready for trial, and a trial will be scheduled by the court. Generally cases are tried in the order that they are filed, but many court systems have an expedited trial calendar for living persons with malignancies. The scheduling of a trial will depend on the backlog of other cases. In some jurisdictions, trials of living malignancy cases are scheduled within months of the complaint being filed. In other kinds of cases, or in other jurisdictions, it can take years.
Two Types of Mesothelioma Lawsuits:
Mesothelioma lawsuits are divided into two categories:
- The person suffering from mesothelioma is living and is bringing the lawsuit as a plaintiff in his or her own individual capacity. This is called a personal injury lawsuit or a living case.
- The victim of mesothelioma has died, and the plaintiff is a spouse, relative and/or representative of the deceased person's estate. This is called a wrongful death lawsuit or death case.
The laws and procedures that apply to the two different types of asbestos lawsuits can be quite different, depending on what jurisdiction the case is filed in.
In the case of the living plaintiff, the most important factor is time. The mesothelioma attorney will come to the plaintiff's home and gather the information necessary to file the lawsuit and answer the interrogatories. This will probably take several sessions. Then, in most cases, there will be one or two depositions of the plaintiff, depending on what the local procedures are.
In the case where the person who would normally be the plaintiff is deceased, a court-appointed individual (usually the spouse or a close relative) stands in as the plaintiff, and the injuries claimed include the loss of life itself. The most important part of a death case is finding persons who remember working with the plaintiff, to provide the work history and product exposure testimony that the deceased individual (called the decedent) would have provided were he or she still living. The interrogatory answers are done and signed by the plaintiff, and that person may or may not have to give a deposition. Sometimes the co-workers must give depositions as well. As in the living case, at that point the lawyer takes over and prepares the case for trial.
Verdict or Settlement
Most cases settle before there is any actual trial testimony in court, but often a jury has to be picked and be ready to hear the case before there is a settlement (the composition of the jury can effect the settlement value of the case).
If the case goes to trial and the jury renders a verdict, it doesn't necessarily mean that the lawsuit is over. Either side can file an appeal, claiming that the jury found against them because of a mistake made by the judge at the trial. Cases often settle while they are on appeal as well.
Payment of Compensation
In asbestos litigation, settlement payments often take place months after the settlement is agreed to. Some payments come in several months after the settlement is reached, some payments will be more than a year later and some settlements can be paid in more than one payment.