The entire process of filing an asbestos-related lawsuit no doubt elicits all sorts of questions, especially about what the final outcome might be if all goes as planned.
Everyone that files an asbestos suit, of course, is looking for some sort of retribution – though that may seem like a harsh word.
However, with asbestos lawsuits especially, it all becomes very personal, particularly because most asbestos exposure occurred without reason.
In other words, if manufacturers and companies that used asbestos products had been honest about what they knew in regards to the dangers of asbestos, most mesothelioma diagnoses would not have happened.
As such, anyone filing an asbestos suit feels strongly that they do indeed deserve compensation for their suffering.
That said, there is no standard asbestos settlement and not everyone gets what they are seeking.
As with all personal injury suits, each has its own merits and hurdles. In some cases, it’s easier to prove negligence.
Sometimes, witnesses are hard to find and other times there’s plenty of proof that asbestos exposure shouldn’t have occurred.
But all of that should be discussed before you launch the lawsuit and your lawyer will help you understand what the outcome might be, though surprises always occur in the legal world.
Nevertheless, there are many questions that can be answered in general detail, though the details of your case will dictate the specifics of your asbestos settlement.
Do I Settle or Go to Jury?
This is the million dollar question….perhaps in a very literal sense. Nearly every plaintiff in an asbestos case will need to ponder in which direction they should head.
Do they take a settlement offered by the defendant(s) or “take a chance” and allow the case to go to court and be tried by a jury. There are advantages and disadvantages to each.
- Accepting an offered settlement – An overwhelming number of asbestos-related lawsuits are indeed settled before they make it to a court of law. There are a number of reasons for this including the costs saved by accepting a settlement rather than going before a jury. A jury trial can become quite expensive and those costs can seriously impact the award amount, should there be one. Secondly, a trial can be lengthy and out-of-court settlements are, quite obviously, much quicker. Hence, if time is of the essence – especially if the victim is quite ill or is suffering with financial difficulties – an out-of-court settlement may be a wise idea. Settlements also offer a sure thing. When one opts for a jury trial, there are no guarantees that any compensation will be awarded. Even if your attorney is well-prepared and presents his case in good order, the human element involved with a jury trial means that an outcome involves opinions and emotions. Every jury is different. Every case is different. If you agree to a settlement, the amount of money you’re to receive will be guaranteed and you’ll most likely receive it (or some of it) within just six months of the time of settlement.
- Going to court – As a party in an asbestos lawsuit, you may receive an offer for settlement but choose not to proceed in that direction. Or, you may be suing several parties and will settle with some but not the others. There are several reasons to move in the direction of a court trial, the most common one being the belief that you will likely receive more compensation from a jury than from a settlement. Of course, as mentioned previously, there are many caveats as well. There is no guarantee that – even after a lengthy, well-fought trial – that you will receive compensation. It can also be a much longer process. However, if you are willing and able to take those chances and are willing to sacrifice the time and money it takes to be involved in such a suit, you may emerge victorious. Remember, if you are working with an attorney experienced in asbestos litigation, he or she can properly advise you as to your best chances for success. It could go either way, depending on the circumstances. But the decision is ultimately up to the plaintiff.
- Filing a claim with an asbestos trust – More than 60 U.S. companies have filed bankruptcy due to overwhelming asbestos claim obligations and many have now established trust funds from which asbestos victims are paid when they make a claim. Victims cannot sue companies that have set up trusts because they are now exempt from lawsuits. However, if there are multiple defendants and others have not established a trust, you may file suit against these companies. Futhermore, receiving money from a trust can impact the amount you receive in a settlement or jury trial. Indeed, your attorney can best inform you as to the pros and cons of filing an asbestos trust claim.
Factors that affect settlements
How much you receive – or if you receive anything at all – as a result of your asbestos-related lawsuit will depend on many different factors relating to your case. These will include:
- Financial hardship – Mesothelioma is an expensive disease. If the victim is working, chances are that he or she will need to quit. Furthermore, the cost of treating cancer goes way beyond lost wages. Medical expenses can be exorbitant, depending on the patient’s healthcare policy and what it covers. There’s also additional lost income when the caregiver is a family member who’s giving up a job to tend to the sick individual.
- Proving negligence – When it is clearly proven that a company truly knew that asbestos was harmful yet continued using it, that company (or companies) is obviously negligent and that can mean large sums of money for the plaintiff.
- Number of defendants – It isn’t unusual for asbestos lawsuits to involve multiple defendants and, as such, this may impact the settlement amount.
- State where you file – Because asbestos litigation laws vary from state to state, including – for example – how much proof is required, where you file can also impact the amount of your eventual settlement. Be sure your attorney is well-versed in the rules of the state where you’re filing.
Also considered are the age of the plaintiff, the extent of his or her disease, the level of exposure, and the victim’s past health history, including whether or not he or she was a smoker.
The Average Settlement
Is there such a thing as an average settlement? Kind of. Settlements largely depend on which route you take – the out-of-court settlement, trial by jury, or asbestos trust fund.
Check around on the internet and it’s easy to determine that the largest settlements come as a result of court proceedings while the other two types of settlements produce a smaller amount of money.
If you seek payment from an established trust fund, your compensation could be substantially less.
It depends on the size of the company that established the trust and, hence, the amount of money in that trust. It will also depend on how many people are seeking compensation from that fund.
Though large corporations, like Johns-Manville, have sizeable asbestos trusts, more people are filing claims with Johns-Manville than with much smaller companies so that will impact the payout.
Nonetheless, statistics show that trusts pay anywhere from 1 to 100 percent of a claim. Your attorney should be able to inform you as to the average paid by a particular trust.
What fees are deducted from an asbestos settlement?
There may be other fees deducted from a settlement including payment for expert witnesses, any travel expenses incurred by your attorney or his staff, deposition costs, or small incidentals such as the cost of mailing or copying various documents.
All of these will be carefully noted for your review before the case is finalized. In regards to trust fund payments, there may or may not be a cap on contingency fees that can be charged by an attorney.
Is an asbestos settlement taxable?
Most personal injury settlements are not taxable but there are indeed exceptions to the rules of taxation.
About 20 years ago, the laws changed regarding taxation and settlements for physical or emotional injuries. It used to be that they were totally tax-free but now some limitations apply.
However, if you receive a reward by jury and it includes punitive damages, these particular damages are generally taxable.
So, if the award totals $2 million and includes $1 million in punitive damages and another million in compensatory damages, $1 million will be taxable.
In addition, any settlement or portion of a settlement that is given as compensation for loss of income or lost wages will also be taxable, as will any amount given in a personal injury suit that is attributed to interest.
How long does it take to get a settlement?
If compensation is coming from an asbestos trust or from a settlement, it is likely that the plaintiff will receive at least a portion of the funds within a year, often sooner.
If you have been awarded compensation as a result of a jury case, it could take twice that amount of time, given the time it takes for the case to be heard, subsequent appeals, and other issues that slow down the process.