Mesothelioma Lawsuit Settlements: What Is the Settlement Process?
If a person gets a diagnosis of mesothelioma, it can cause a lot of stress and problems, both emotional and financial. Asbestos exposure is the main risk factor for developing this disease; therefore, mesothelioma patients can seek compensation through lawsuits filed against the companies that are liable for causing exposure. Usually, such cases are resolved through a settlement process.
What is a mesothelioma lawsuit settlement? It is an agreement made between a plaintiff who files a claim and a company against which this claim was filed. The settlement process involves getting a mutually-agreeable sum of money for compensation in return for settling a claim and giving up the right to sue. Settlements can happen either before a lawsuit has been filed or while the case is in progress.
The first step in this process is conducting an in-depth investigation into a plaintiff's history of asbestos exposure and his or her medical record. An experienced mesothelioma lawyer may examine a person's employment history, military records, medical reports, workplaces, product use and other facts to find out which companies may be held liable for exposing someone to asbestos.
There is no fixed formula for determining the compensation amount for a settlement. Each case is unique and has its own characteristics that can include the severity of the illness, medical bills, loss of wages, the history of asbestos exposure, the quality of evidence proving that the defendant has caused it and potential compensation at trial. Some cases may include claims against asbestos bankruptcy trusts in addition to regular lawsuits.
It should be remembered that settlement averages reported in publications do not reflect an exact value for an individual case. It will take an experienced attorney to evaluate the case and tell you about possible sources of compensation.
One of the main benefits of settlement for many families is certainty. Through a settlement process, you can receive a fair compensation without going to trial
Starting the Process of Mesothelioma Settlement
The first step in a mesothelioma settlement claim is determining whether the claim is possible. This usually requires the confirmation of the diagnosis and research on how, when, and where the individual was exposed to asbestos.
Given that exposure to asbestos occurs decades ago before the development of mesothelioma, tracing the companies which are responsible for exposure can become tricky. An individual has worked in multiple places, has used various products, or has been exposed to asbestos while working with construction materials, machines, insulations, ship-building, and others.
The attorney can start with a comprehensive discussion of the person's job and the history of exposure. Old employment files, union files, military files, Social Security files, information on the products, statements of witnesses, and other documents can help prove where the exposure has occurred.
Medical documentation can also be highly significant. It helps to prove the diagnosis of mesothelioma, its treatment, the prognosis of the disease, and expenses related to the treatment. It can help to prove the severity of the injury and its costs.
Upon investigation of the claim, the lawyer may find one or several companies which may be potentially responsible. Depending on the circumstances, these companies may be the manufacturers, suppliers, contractors, or any other businesses linked to the products containing asbestos.
Then the lawsuit may be filed in a relevant court. The filing of a lawsuit is very important since the statutes of limitation of asbestos lawsuits vary depending on the state. In most states, the limitation period starts upon the diagnosis of the illness and not upon the exposure to asbestos.
When the lawsuit has been filed and the defendants responded, the case is normally moved to the discovery stage. At this stage, both sides exchange information and investigate the evidence. Both sides can demand documents, submit questions, take statements and testimony of witnesses and experts.
Negotiations regarding the settlement of the case may start at different stages of this process. On one hand, a defendant can make an offer based on the evidence collected; on the other hand, the attorney representing the plaintiff can initiate the process of negotiations.
It is important to note that receiving a settlement offer does not automatically mean that the claimant should accept this offer. The final decision on accepting the offer lies with the claimant
Settlement Negotiations
When sufficient evidence is obtained, the parties can start settlement negotiations. The goal of the discussions is to understand whether the defendant can settle the claim without having to go to court.
Plaintiff's lawyer usually evaluates various elements of the claim when recommending settlement. It can include asbestos exposure evidence, medical documents, financial losses, defendant's liability, potential damages that can be proved in front of a jury, and other details related to the case.
Damages include medical bills, lost wages, diminished earning capacity, pain and suffering, and other losses allowed by state laws. In case of a wrongful death, the eligible members of the deceased person's family or representatives of the estate can have losses arising from the death as their claims.
Defendant's attorneys will evaluate the case as well. They may consider the presence of evidence of company's connection to the asbestos exposure, shared liability between various companies, the risk of having to go to court, and other factors.
During the negotiations, there may be several offers and counteroffers made. For instance, at first, defendant's offer may be lower than what the plaintiff's lawyer thinks is reasonable. Therefore, the lawyer may make a counteroffer backed by evidence of the medical expenses, lost income, history of exposure, and other damages.
As mentioned earlier, there is no universal amount of money that all mesothelioma settlements provide. Published sources cite various average settlement amounts. Also, there can be substantial difference between settlement amounts of various mesothelioma claims.
Multiple defendants' cases are another important factor to consider. As it was already said, a claim may involve several companies, and each of them will have separate negotiations.
Finally, some mesothelioma claims may involve asbestos bankruptcy trusts. If a company went bankrupt due to its asbestos-related liabilities, it usually creates a trust that compensates claims of eligible individuals.
It is important to review all the details of a settlement with lawyers before accepting the deal. Settlement agreements usually contain many terms about confidentiality, releases of claims, and claimant's rights against defendant
What Happens After a Settlement Agreement Is Made?
Once the claimant decides to accept the offered settlement amount, the case proceeds to the end of its life cycle. As a rule, the settlement agreement will be made in writing. The document is supposed to describe the terms of compensation for damages and the terms under which the agreement is made.
First of all, it would be worth mentioning the release. It is likely that the claimant will release the defendant from certain legal claims connected to the asbestos exposure and the lawsuit by signing the agreement.
In view of the importance of such agreements for the parties, it would be wise to study their content thoroughly before signing. Moreover, the settlement agreement may contain confidentiality provisions in respect of certain aspects of the settlement agreement.
Once the settlement becomes valid, the defendant has to make the compensation according to the terms of the agreement. The payment period depends on the defendant and his or her circumstances.
As a matter of fact, the gross settlement amount may not coincide with the total amount received by the claimant. There are various deductions, including attorney fees, litigation expenses, liens for medical care costs, the claim from government, etc.
Thus, for instance, the percentage of the recovery that would go to the attorney working on the contingency fee basis has to be specified in the agreement.
It is noteworthy that receiving compensation through the asbestos trust and getting a lawsuit settlement is a complicated procedure requiring careful coordination of both processes.
Moreover, if the case concerns a patient who suffered from mesothelioma, passed away because of the disease and was unable to file a lawsuit on behalf of himself/herself, there are some other ways to get compensated. For example, it may be necessary to file a wrongful-death lawsuit or to submit an estate claim depending on the state law.
Since the amount of money at stake in mesothelioma cases is usually considerable and since the process of litigation is complicated, claimants are not obliged to take the first proposed settlement proposal. They can discuss with the attorney the pros and cons of their case and compare them to the risks of going to trial.
In any case, it is not the defendant who has to make the decision but the claimant or his/her authorized representative
Mesothelioma Settlement or Trial: Which Option Is Better?
Not all mesothelioma lawsuits go into trial. Actually, it is common for asbestos cases to end up in settlements. This is because the parties to litigation reach an agreement regarding the compensation.
Still, this option presupposes making certain compromises since one may receive less money for compensation than it might have been obtained by a jury. On the other hand, a mesothelioma trial has a higher chance of resulting in a bigger verdict, but there is no guarantee that the claim will be won or the required sum of money will be awarded.
A mesothelioma trial might take much time, which is another issue to consider since it can include depositions, expert testimony, documents disputes, motions, appeals, and other procedures. Even after obtaining a favorable verdict for a case, the claimant may wait for receiving money until the defendant appeals against the decision.
There are several questions which need to be asked before accepting an offer:
How strong is the evidence?** In cases which are based on a thorough documentation of employment history, the products, witnesses, and other medical evidence, negotiation will be more advantageous.
What are the financial losses?** They may be determined by such factors as the cost of medical treatment, lost income, decreased earning capacity, and others.
How many defendants are there?** A higher number of the parties to the litigation increases the number of possible compensation sources but makes the litigation more complicated.
Do asbestos trust funds exist?** Some asbestos manufacturers declare bankruptcy; thus, they create special funds for their former employees.
How long will the litigation take?** It depends on many factors and timelines may vary considerably. Recently, there appeared some guidance on how long asbestos cases might take, depending on whether they end in a settlement, in a trial, or trust claims.
Conclusion
Generally speaking, mesothelioma settlements require investigating, filing, discovery, negotiations, getting a settlement approved and paid out. These procedures are complicated since asbestos exposure happened many years ago, and there might be several compensation sources (different companies).
There is no guarantee that a certain sum will be received in a settlement, or that the whole process will be quick. What one can do is to keep medical and employment records, identify all possible sources of asbestos exposure, learn the relevant deadlines, and ask for professional legal advice.
Editorial & Jurisprudential Disclaimer: This publication is prepared strictly for educational, academic, and legal research purposes and does not constitute formal legal counsel. For specific legal representation or jurisdiction-specific advice, consult a licensed attorney admitted to practice before the competent bar.
