Nationwide, hospital bills alone for mesothelioma patients eclipse $44 million. That figure, which has increased significantly since the Great Recession ended in 2010, continues rising. A victim’s ability, or inability, to pay these costs has a significant bearing on the likelihood of recovery.

Some private and government programs, such as group health insurance, Ronald McDonald House, and Social Security Disability, defray these costs. However, if such a source pays part or all the medical bills, we all pay, in the form of higher taxes, higher insurance premiums, and/or reduced benefits.

Additionally, the $44M figure doesn’t include other out-of-pocket losses, such as lost prior and future wages. Because they cannot work, they must accept partial retirement packages. The inability to work continues for the rest of their lives.

Moreover, personal injury claims concern more than money. They impose a “you break it. You buy it” responsibility on asbestos providers. Most asbestos companies buried asbestos exposure health risks for decades. Since they shirked their responsibilities for so many years, an asbestos exposure lawyer can usually obtain additional punitive damages in these matters. 

Building a Case

Regardless of the legal forum, as outlined below, the victim has the burden of proof in an injury claim. In asbestos exposure cases, this proof usually includes medical evidence, exposure evidence, and effects evidence.

Asbestos exposure illnesses, like pleural mesothelioma, are very rare and difficult to diagnose. Furthermore, many of these victims smoke. The tobacco industry, like the asbestos industry, covered up the true risks of their products for decades.

Medical Witnesses

A Board Certified environmental oncologist should examine the victim and make a diagnosis. Only such a doctor can competently identify mesothelioma and dismiss other environmental factors, such as smoking, as a primary cause.

Additionally, an expert diagnosis usually includes a probable asbestos exposure window. This window makes it easier to pinpoint a likely exposure source. An attorney must simply match the victim’s work history with the probable exposure window.

Medical and vocational evidence is solid, but it may be insufficient. Lay witness testimony could be the difference between maximum results and average results. Coworkers, neighbors, and other people cannot testify about the victim’s medical condition. But they can testify about what they see, and they see the way this condition affects the victim.

Asbestos exposure victims are a diverse group. Most people were exposed at work or during military service. Take-home asbestos exposure victims are common as well. Many times, these workers unwittingly carried toxic fibers home, usually on their clothes. Indirect asbestos exposure victims, such as office workers at asbestos mines, are somewhere in the middle.

On a related note, asbestos exposure affects families in several ways. Many asbestos exposure victims are in their 50s and 60s. Families lose their primary breadwinners and extended family members, such as elderly parents, suffer financially as well.

Because of all this diversity, asbestos exposure victims have multip;e legal options which, in many cases and in most states, overlap. 

VA Disability/Workers’ Compensation

The aforementioned lay witness statements are especially important in VA disability and workers’ compensation claims. 

As outlined above, if a good doctor handles this part of the case, a medical diagnosis and work or service-related connection is a relatively straightforward matter. The burden of proof is very low in these cases. Furthermore, a government or insurance company lawyer cannot dispute fault. Benefits are available even if the victim’s own negligence caused asbestos exposure.

A good asbestos attorney will research and prepare a case that often convinces the asbestos companies to settle.

However, adverse lawyers can and do contest the amount of damages. They typically use the one-step-down approach and argue that a fatal illness is a disabling illness, a disabling illness is a serious illness, and so on.

Because of these issues, these systems are no longer the quick shortcuts to compensation that they were fifty years ago. Initial denials are common. Maximum compensation is only available at a later Administrative Law Judge hearing. These hearings are basically private trials.

Under federal law, VA disability is the exclusive remedy for service-related illness or injury matters. Victims may only pursue civil claims in limited situations. Most states have similar exclusive remedy workers’ compensation laws.

A key exception, intentional or reckless conduct, often applies in these situations. No-fault benefits programs don’t cover such illnesses or injuries. This exception often opens the door to a civil claim.

This door is already open to ambient exposure victims. Floating asbestos fibers often infect people who live or work near asbestos hotspots. Public and private employers have no legal duty to protect non-employees.

Civil claims usually hinge on a duty of care. Property owners have a duty to remove injury hazards, such as airborne asbestos fibers, even if they don’t actually know about the hazard. Asbestos providers have a duty to warn customers about all known possible side-effects, not just the side-effects they choose to warn people about.

Asbestos exposure lawyers need more evidence in civil claims than workers’ compensation or VA disability claims. Various defenses, such as comparative fault and assumption of the risk, could apply in negligence cases.

Both legal doctrines basically shift blame for an injury from the tortfeasor (negligent party) to the victim. Comparative fault and assumption of the risk laws vary significantly in different states. In most jurisdictions, depending on the victim’s percentage of fault, the victim is ineligible for compensation if his/her conduct substantially contributed to the illness.

State courts usually have jurisdiction over property owner negligence claims. Asbestos provider claims are usually federal court matters. Each approach has some pros and cons which an experienced asbestos lawyer can review with you.

Bankruptcy Victim Compensation Fund (Asbestos Trusts)

Usually, a defendant’s bankruptcy complicates injury claims. But in this case, an asbestos provider’s bankruptcy simplifies the process. A 1994 Bankruptcy Code amendment required bankrupt asbestos providers, and future bankruptcy providers, to transfer assets into a victim compensation fund. Today, these funds are available to all exposure victims, if the responsible provider contributed to a fund.These funds are also known as asbestos bankruptcy trusts, or asbestos trusts.

In a nutshell, bankruptcy VCF claims are easy to start and difficult to finish, or at least difficult to finish on victim-friendly terms.

An asbestos attorney can help with quickly getting compensation from an asbestos trust.

Bankrupt asbestos providers legally waive their right to contest liability, or responsibility for damages, in asbestos exposure cases. Therefore, the evidence collection process usually halts at the bare-bones point. There’s no adverse lawyer to fight the case and no jury to convince. Additionally, many critically ill victims are eligible for expedited review. These rules vary in different trusts.

The non-court process expedites these claims but makes them difficult to resolve. Usually, looming trial dates motivate defendants to settle. Moreover, during court-ordered mediation, the provider has a duty to negotiate in good faith. 

No motivational trial date and no good-faith negotiation duty generally means bankruptcy VCF settlement talks are protracted and difficult. Only a good negotiator, who knows when to compromise and when to stand firm, can obtain maximum compensation in these situations.