The customary mesothelioma lawsuit will have several phases. The first is evaluation, the next is the filing and discovery phase, followed by settlement, and then in some cases, trial and possibly appeal.
Every case is different, of course. Some cases settle relatively quickly with no trial and other lawsuits take more time, must proceed to trial, and even then are sometimes appealed when an asbestos company is unhappy with the result.
Phase I: Case Evaluation
Case evaluation is what takes place before a lawsuit is filed in the first place. When you contact Bergman Draper Ladenburg, you will speak to a mesothelioma lawyer and an experienced professional who will visit with you about your specific situation, your illness, your work history, your family and places you’ve lived. We will collect medical records and social security records from the course of your entire lifetime.
The firm will spend hours speaking with you, your family members and any available coworkers you can recall, all in an effort to create as thorough a record as possible about the events that caused you to develop mesothelioma and about the effect that your illness has had on you and your family. Given the firm’s vast experience representing others with mesothelioma in the Pacific Northwest and along the west coast, we may be able to help you locate coworkers with information about former job sites that you may no longer recall.
After gathering this extensive information, the firm will be in a position to decide whether we will be able to help you by filing a lawsuit on your behalf. If our experienced mesothelioma lawyers believe that it would be beneficial for you to proceed, the next step is the filing of your lawsuit.
Phase II: Case Filing and Discovery
A case begins with the filing of a complaint, which is followed by several months or even years of additional investigation, which is called “discovery.”
Complaint – The firm will next decide on the proper court in which to file your claim and the proper companies to sue. The companies named in a lawsuit are called the defendants; they are the ones we believe are legally responsible for your injuries. The lawsuit begins with the filing of a document called a petition or complaint. In Washington state, for example, the plaintiff – that is you – files a complaint.
The complaint specifies the companies being sued and where those companies may be found for purposes of receiving notice that a lawsuit has been filed against them. The complaint will briefly set out the facts of your case, explain the nature of the defendants’ wrongful conduct, and describe how you and your family have been harmed. It will outline in legal terms your claims against the defendants, including claims for the companies’ negligence, gross negligence, strict liability and conspiracy.
The complaint may include claims against companies that have filed for bankruptcy protection. Finally, it will explain that you are asking for damages, that is, monetary payment to compensate you and your family for your injuries.
Discovery – Once the complaint is filed, the case enters the discovery phase, which is where the bulk of the activity happens in most mesothelioma lawsuits. This is because most mesothelioma cases settle after the defendants have had the same chance to assemble and review the evidence that your lawyer had before deciding to file the case.
During discovery, the lawyers who represent the defendants and your lawyer will basically trade information. The two sides work to “discover” all the information that will help, or hurt, were the case to proceed to trial. This information is helpful for the lawyers in two ways. Obviously, it helps them to prepare for a trial. But the information gathered during discovery may be even more useful in helping the defendants’ lawyers to determine whether a case should be settled, and if so, for how much.
The defendants’ lawyers will ask you to answer a very large set of written questions, called “interrogatories.” When you have finished answering the questions, you must take your interrogatory responses to a notary public and swear, under oath, that your answers were truthful. The defendants will also seek out documents in your case, by way of “requests for production.”
Typically they ask for many of the same documents about which our office already has spoken to you: medical records, service records, social security administration documents, and possibly any photographs you may have taken at job sites or any other documents that may help tell the story of how your mesothelioma was caused and developed.
The discovery phase of the case is also when depositions are conducted. A deposition is a legal interview of sorts in which the person being deposed – the “deponent” – is asked a series of questions under oath. A court reporter records the questions and answers and sometimes makes a video recording of the proceeding as well.
Depositions may be taken of your doctors, your coworkers, and of you, yourself. Before you are deposed, your attorney will meet with you to prepare you for the types of questions you will be asked, which are usually very similar to the questions you already answered in the defendants’ interrogatories. On the day of the deposition, the defendants’ lawyers will all have a chance to ask questions about your work history, your exposure to asbestos, your illness and your family.
In your lawsuit, you will probably sue quite a number of companies, so there are often several lawyers present at your deposition, and it could last several hours. But your attorney from Bergman Draper Ladenburg will be with you the entire time to ensure that the day goes as smoothly as possible.
Rest assured, at the same time the defendants are seeking information from you, we will be seeking information from them. We will be deposing the defendants’ doctors and their witnesses, as well as seeking interrogatory responses and documents from them. Although our long years of work in the field of mesothelioma litigation have allowed us to amass quite an arsenal of information about most of the asbestos defendants, we continue to probe for more and newly discovered materials in our efforts to give our clients the best possible legal representation that we can.
Phase III: Settlement and Trial
After a case is filed and the discovery phase is underway, the judge will set your case for trial. As the date for trial approaches, we will begin preparing to try your case before a jury. This is typically a very busy time for everyone in a mesothelioma lawsuit. The closer the defendants get to judgment day, the more activity they will generate. You will be kept informed of our progress so that you and your family will be sure to be able to attend the trial.
This is the time when asbestos defendants have a real incentive to settle your case. It is for this reason that your lawyer from Bergman Draper Ladenburg will work to have your case set for trial as soon as possible. If the defendants in your case do make settlement offers – at any time during your lawsuit – we will communicate those offers to you and share our opinion about whether to accept or reject the offers.
At times, defendants will not make their best settlement offers until right before trial, or even after trial has already begun. Other times, defendants refuse to own up to their responsibility at all and it is necessary to try the case before a jury, which makes the final determination about a defendant’s responsibility for your injuries and about the amount of compensation that would be fair in your case.
Phase IV: Appeal
After a case goes to trial and the plaintiff is successful, the judge in the case enters “judgment” based on the jury’s verdict. This is a formal ruling that the defendant owes the plaintiff a certain amount of money. At this point, if the defendant is unhappy with the court’s judgment, the asbestos company has a right to appeal the judgment.
The defendant then asks a higher court, usually called the court of appeals, to review the case to see whether mistakes were made at trial that were so serious that the jury’s verdict should be disregarded and a new trial granted. To pursue an appeal, a defendant must post a bond in the amount of the judgment to ensure that if anything should happen to the asbestos company during the appeal, the money would still be there to pay the plaintiff.
Still, it could easily take two years or more for an appeal to be decided. This explains why cases often settle during the appeal, allowing the plaintiff to recover the compensation to which he and his family are entitled.
Contingency Fee Contracts
There is no escaping the fact that when someone receives a diagnosis of mesothelioma, everyone in the family is faced with tough challenges – physically, emotionally and spiritually. Unfortunately, many people faced with these issues worry that seeking the help of an experienced mesothelioma attorney will add financial problems to the list. It is no secret that lawyers working for large corporations like many of those that manufactured asbestos products often are paid hundreds of dollars an hour. But at Bergman Draper Ladenburg, we do not intend to burden our clients with financial worries on top of everything else.
The mesothelioma lawyers at Bergman Draper Ladenburg work for what’s called a “contingency fee.” This means that our making any fee at all is dependent, or contingent, on our client receiving a recovery. Rather than bill our clients by the hour, we receive a percentage of the total amount of compensation our clients receive from their lawsuit. The contingency fee is one of the great “levelers” in our nation’s legal system. The contingency fee allows everyone to benefit from high quality legal representation, not just those who have the money to pay for such services up front.
It works like this: Bergman Draper Ladenburg will file your mesothelioma case and pay all the expenses associated with it, such as court fees, travel costs and fees for expert witnesses, records fees, etc. We receive no compensation for our time or for the expenses until you receive a recovery, from which our fee and the expenses will be deducted. Taking care of your legal needs is our job; your job is to focus on your health.
Typical Legal Issues in Mesothelioma Litigation
The lawyers at Bergman Draper Ladenburg have learned from their decades-long experience in mesothelioma litigation that some of the same legal issues arise again and again. Of course, the law is different in different states, and the outcome for any issue will depend on the particular facts of each case. But this discussion is meant to familiarize you briefly with some of the more common issues in mesothelioma litigation.
Statute of Limitations and the Discovery Rule – In each state, the law provides for a certain time within which an injured person can file a lawsuit to recover compensation for his or her injuries. This is called a statute of limitations. The law is intended to encourage people to resolve their legal disputes quickly when the evidence is still available and people who were witness to an accident still remember what happened.
In the past, courts had held that the time period for filing suit would begin to run at the time of the accident – when the plaintiff suffered injuries. A problem arose in asbestos cases because the accident, the plaintiff’s exposure to asbestos, occurred decades before the injuries, the plaintiff’s asbestosis or mesothelioma.
Asbestos defendants tried to escape responsibility for causing injury to those exposed to their products by suggesting that a worker should be barred from bringing a lawsuit just because the injuries took decades to develop after the time of exposure.
This rule would have put plaintiffs in quite a bind: they couldn’t sue soon after they were exposed because they didn’t have any injuries; and if they waited to sue until they were sick, then they couldn’t file suit because too much time had passed.
The asbestos companies’ ridiculous argument was rejected almost everywhere. Instead, the courts employed a discovery rule to allow plaintiffs to file suit within a short period of time after they discovered or should have discovered the injury.
As a general rule in most states, the statute of limitations does not begin to run at the time of exposure to asbestos; rather, the statute begins to run when the injured person learns he is suffering from mesothelioma, or should have learned of it. The law in many states also provides that the statute of limitations will not run until the plaintiff learns that the mesothelioma was caused by exposure to asbestos.
Second Injury/ Two Disease Rule – People who develop asbestosis or asbestos-related pleural disease are at a greater risk for developing mesothelioma in the future. In the past, this sometimes presented a problem for people who filed a lawsuit seeking compensation for those asbestos-related injuries and then later learned that they had developed mesothelioma on top of the other diseases.
Asbestos companies tried for years to convince the courts that the later lawsuit should be barred by the earlier lawsuit, even though mesothelioma is a completely different disease from asbestosis and even though the mesothelioma did not exist at the time of the earlier lawsuit.
Fortunately, most courts have rejected this argument. In most states, a person can file suit seeking compensation for injuries caused by mesothelioma even after filing a previous lawsuit for other asbestos-related, but different, injuries.