Most civil cases settle or resolve without going to trial because trial is time-consuming, costly, and risky. There’s always the chance that a verdict will go against you, regardless of how good your case seems to be on paper. This applies to asbestos cases too. But when an asbestos-mesothelioma case does go to trial, that means the attorneys (on both sides) have evaluated all the factors and decided that trying the case is worth it. Read on to learn more.
Why Asbestos Cases Go to Trial
The main reason a case goes to trial is that the parties have reached an impasse in settlement negotiations. Asbestos cases usually have multiple defendants, but almost all of the defendants settle or are dismissed without going to trial (some asbestos defendants may be bankrupt too). If your case does go to trial, it’s usually because one or a few defendants are not making settlement offers that your attorney can recommend accepting.
Generally there are two areas of dispute: your asbestos disease and a defendant’s liability. Defendants could argue that your asbestos disease is not as serious as you think, or that the disease was not caused by asbestos. The defendants might also accept your medical claims while arguing that they are not responsible for your exposure to asbestos. Since the largest portion of damages in an asbestos case usually apply to pain and suffering, which is difficult to put a value on, there might also be a significant disagreement on the settlement value of your case.
If your case does go to trial, be aware that costs can escalate at this stage. The largest cost will go to expert witnesses, who are essential to building a case and who charge thousands of dollars for trial testimony. (More: Costs in a Personal Injury Case.)
Going to Trial
A trial can take several weeks, and it is not unusual for a case to settle while the trial is ongoing.
The trial date the court assigns is not the date at which trial testimony begins. Both sides will file motions in limine, which seek to exclude some of the other side’s evidence, and a jury needs to be selected.
After a jury is seated, the trial will start with opening statements by each side. Next, your attorney makes your case, and the defendant’s attorney makes its case. This can often take weeks. Then, there are closing statements by each side. After closing statements, the case goes to the jury. Let's take a closer look at some key issues that are sure to come up in a trial over asbestos-related health problems.
Making Your Case
In any personal injury case, the plaintiff needs to prove three things:
- that the defendant owed a duty to the plaintiff
- that the defendant breached that duty, and
- that the breach was a cause of the plaintiff's injury.
Defendants will argue against all three of these elements. In an asbestos case, most of these elements will be proved (or refuted) by expert witness testimony.
Your attorney will have to prove that the defendant’s actions exposed you to asbestos, which will require testimony from you or your coworkers about the products you worked with or around.
Your attorney will also need to prove that defendant knew or should have known that asbestos was hazardous, and did not warn you about the hazard. This element will require the testimony of an industrial hygienist or other expert who can establish what knowledge was available to the defendant at the time you were exposed.
To prove your disease, your attorney will rely on your medical records and also on testimony from expert witnesses that establish the disease was caused by exposure to asbestos. For example, a pathologist might testify that the only known cause of mesothelioma is exposure to asbestos and that your biopsy shows you have mesothelioma. A radiologist might testify that the pattern of scarring in your lungs is caused by asbestos fibers.
Once a jury has concluded that the defendant was negligent, the jury needs to decide on the amount of damages. Unless the trial has been split into a liability phase and a damages phases, witnesses will testify only once and will provide evidence about liability and damages at the same time.
Speaking broadly, damages come in three forms: economic loss, medical expenses, and pain and suffering. Economic loss and medical expenses will be proved with a combination of written records and expert testimony. But the best witness for your pain and suffering is you.
For this reason, your attorney may take a videotaped deposition early on in the case that can be shown to the jury if you are too ill to appear at trial. (More: What Will Happen at My Deposition in My Asbestos Case?) In the videotaped deposition or at trial, you will be asked to testify about the history of your illness and how your life has changed since you began experiencing symptoms. Your attorney will prepare you for this testimony and help you know what to expect. Whether your testimony comes early or late in the trial depends on your attorney’s trial strategy.
The jury will also be asked to decide what percentage of fault the defendant bears. For example, a jury might find that there are $3 million dollars in damages but that because of the other parties who contributed to your asbestos exposure, the defendant is only 30% at fault. Obviously, this significantly reduces the amount of money the defendant will owe.
Regardless of which side wins at trial, the other side might appeal the verdict. The decision to appeal is case-specific, so if there is a verdict in favor of the defense you will need to discuss with your attorney why it happened and what an appeal will look like. If there is a plaintiff verdict and the defendant appeals, the defendant will not need to pay anything unless and until the appellate court upholds the verdict.