Toxic Torts

Why Do Most Asbestos-Mesothelioma Cases Settle?

You've probably heard that most injury-related cases settle before reaching trial (or even before a lawsuit is filed). That's true of asbestos cases too, for a number of important reasons.

If you’re thinking about filing a lawsuit related to your asbestos disease, you’re probably wondering how things might play out. Some people dread the thought of a court trial, while others think a trial is the only way they will be vindicated. But a trial is not the usual outcome for most asbestos cases. Most mesothelioma-asbestos cases settle, as do most civil lawsuits in the United States.

Reasons why settlement is favored (by both sides) include the time, risks and costs of going to trial, and the number of cases in the crowded court system. Read on to learn more.

Trial is Risky

While no lawsuit has a guaranteed result, a negotiated settlement, even if smaller than the plaintiff hopes for, provides certain resolution to the case. Contrast that with a trial, where the plaintiff risks receiving nothing. On the other hand, a jury might award a large sum of money to the plaintiff, which is a risk defendants don’t often want to take.

So, a trial will not usually occur unless one party is very confident of a verdict in its favor. For the plaintiff, this means there has to be an expectation not only of an award, but of an award substantially bigger than what the defendant has offered in settlement negotiations.

In weighing the decision whether or not to try a case, you (and your asbestos attorney) need to consider:

  • how convincing the evidence is
  • what kind of witnesses you have (including yourself)
  • how significant your losses (damages) are, and
  • the defendant's share of liability.

To prevail at trial, an asbestos plaintiff must convince the jury that the defendant’s product contributed to the plaintiff’s disease. This means that evidence of exposure and liability needs to be strong and specific. Additionally, the witnesses for all aspects of the case (including expert witnesses) have to communicate well with the jurors. (More: Does My Asbestos Case Need an Expert Witness?)

Because asbestos diseases result from cumulative exposure, multiple defendants are typically responsible for the plaintiff's health problems. If a defendant who is taking a hard-line on settling only shares a small portion of liability, and you have already received substantial compensation from the other defendants, the amount the defendant would actually owe might be smaller than the costs of putting on a trial. This is often not a risk worth taking.

Trials are Expensive

Lawsuits are expensive in general, but the costs associated with an asbestos case go up dramatically once the case enters the trial stage, often into the tens of thousands of dollars just for trial alone.

What's more, if you lose, you might have to pay the defendant’s expert witness fees and other expenses, in addition to your own costs. Existing settlements with other defendants might be whittled down by the need to pay a victorious defendant’s costs.

And even if you win at trial, not all expenses are recoverable from the defendant(s). Your recovery needs to exceed your costs in order for trial to be worth it.

Litigation is Time-Consuming

Because courts face a glut of cases, it is not uncommon for a case to be ready for trial but unable to find a courtroom. While waiting for a trial, a plaintiff’s health might rapidly deteriorate. Asbestos defendants might file for bankruptcy before the trial starts, leaving the plaintiff with no recourse in the courts at all.

When a case does go to verdict, the other side often will appeal, and damages do not need to be paid while the case is appealed. Even if the defendant loses the appeal, two to three years might have elapsed before you receive your money. A negotiated settlement with payment due in 90 days is usually a better result for a plaintiff than a modest verdict at trial, which might not be paid for years.

When Should an Asbestos Case Go To Trial?

While most defendants who have liability are willing to settle, some defendants refuse to make reasonable settlement offers. If your attorney can prove a defendant has some liability and the defendant is refusing to offer anything, a trial is the method to force recovery.

A trial might also be necessary if there is something legally or factually unique about the case, making the value of the case particularly tough to establish.

Finally, a trial is probably the only route if the defendant has engaged in conduct that leaves open the possibility of punitive damages, which are designed to punish the defendant, rather than compensate the plaintiff. Though very rarely available in an asbestos case, when awarded, punitive damages can be tens of millions of dollars higher than ordinary damages. If your attorney thinks he or she can win punitive damages, a trial is the only way to go. (More: Damages FAQ.)

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