Toxic Torts

Does My Asbestos Case Need an Expert Witness?

When it's time to establish the nature and extent of your health problems and their impact on your life, expert witnesses can be crucial to your asbestos-mesothelioma case.

Expert witnesses are a necessary part of most complex personal injury cases, and asbestos cases almost always fit that bill. Read on to understand the keys role of expert witnesses in asbestos-mesothelioma litigation.

What is an Expert Witness?

An expert witness is a person who has special knowledge, skill, experience, training, or education in a particular subject. In a court trial, the expert witness’s testimony provides information to the jury which is not a matter of common knowledge.

To illustrate, expert witness testimony would not be needed to explain the purpose of a screw. But expert witness testimony would be necessary to explain:

  • how much weight the screw could be expected to bear
  • the brittleness of the material the screw was made of, or
  • why a particular manufacturing process made the screw different from other screws.

Expert Witnesses and Asbestos-Mesothelioma Lawsuits

In asbestos-mesothelioma litigation, medical and economic experts usually provide a written report based upon what they know about you personally: your medical records, pathology samples, or financial documents.

Asbestos professionals or industrial hygienists will need to review your work history. After the written report is served, experts frequently give testimony in a deposition. Often this testimony is critical to getting defendants to start making reasonable settlement offers. Attorneys will not usually hire more than one expert in a particular area, unless a report is negative to your case.

If your case goes to trial, experts will testify as to their conclusions about your health and your asbestos exposure. Defendants will present their own expert witnesses, usually with testimony contradicting that of your experts, and the jury will weigh the expert opinions of each side.

Expert Medical Testimony

In an asbestos case, expert medical testimony is essential because it is what proves the plaintiff has an asbestos-related disease. Because the symptoms of asbestos diseases are like the symptoms of many other diseases (for example, shortness of breath could be caused by an asbestos disease or by emphysema) it’s necessary for a doctor to establish a link between your exposure to asbestos and your health problems.

Expert medical testimony in asbestos cases often consists of a radiologist, a pathologist, or both. A radiologist will testify that X-rays or CT scans show scarring in the lungs, which is characteristic of exposure to asbestos. A pathologist will testify as to the number of asbestos fibers located in a tissue sample or the difference between types of cancer cells. A pulmonologist or oncologist might also be called to testify.

Expert Testimony on Causation

Proving that you have an asbestos disease is only half the battle. In order to recover for your losses, you also need to prove the defendant is responsible for exposing you to asbestos. You can describe your job, but scientific evidence needs to be presented to show that the materials you used on that job contained asbestos and that you inhaled it, especially if you are unaware of or do not remember the specific products you worked around.

This usually requires the testimony of an industrial hygienist or a certified asbestos professional who has undergone extensive training as required by state and federal agencies. Such an expert can testify that the materials disturbed in a remodel project were more likely than not asbestos-containing or that shaking out contaminated clothing caused the release of asbestos fibers (maybe even in a secondary exposure claim). The expert might also testify that safety regulations in place at the time of your exposure were not followed or that there was sufficient information available for the defendant to know its product was hazardous.

Expert Testimony on Economic Damages

Most asbestos plaintiffs have suffered extensive monetary loss. If your illness caused you to retire early, an economist can estimate how much potential income you lost. An economist can also establish how much money you will lose from a premature death or from hiring people to do chores you no longer can do yourself.

Why Can’t My Own Doctor Testify?

It might seem like an unnecessary cost to hire expensive outside experts to say you have an asbestos disease, instead of just calling in your own treating physician. There are several benefits to using an expert.

First, experts in asbestos cases have generally testified in dozens or even hundreds of other asbestos cases. Their already-established reputations increase their credibility in the eyes of the jury. Their experience in testifying means they can anticipate the defense's questions, and they'll know the optimal way to present information to the jury.

Also, treating doctors are experts in treating, not in causation. Your pulmonologist is concerned with making sure you get enough oxygen, and might not know why asbestos fibers cause the damage that they do. The pathologist who looked at your biopsy tissue at the hospital can probably say conclusively what kind of cancer cell it is, but not what particular carcinogens caused cancer to develop.

Other specialized medical knowledge might be required. Experts know how many asbestos fibers are in the lung tissue of a person who is not exposed to asbestos and can say how elevated your fiber count is. They can identify different kinds of asbestos fibers or provide an overview of the current and historical scientific literature about the causation of asbestos-related diseases.

Costs of Expert Witnesses

Experts often charge hundreds of dollars per hour and usually account for the largest costs in your case. For this reason, settlements you make near the end of the case (when testimony is ongoing) might seem to have a lot of costs deducted. However, keep in mind that without those expert reports and testimony, your settlement would almost certainly be smaller, or the defendant may not have settled at all.

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