Civil appeals are difficult, and very rarely successful, especially in asbestos cases. Usually, appeals courts uphold lower court judgements unless that judge abused his/her discretion. Basically, abusing discretion means going off the rails. If a baseball umpire calls a pitch at the thighs a strike, that’s a bad call. If an umpire calls one of these pitches a strike, that’s an abuse of discretion.

The high failure rate doesn’t stop asbestos companies from using, or rather abusing, this process. Sometimes, if defendants delay the outcome, even if that outcome is inevitable, victims give up and settle their claims for pennies on the dollar.

Workers’ compensation and VA disability appeals, which are also outlined below, are different, at least at the first appeal level. An Administrative Law Judge holds a de novo hearing. The ALJ disregards the Claims Examiner’s conclusions and makes his/her own conclusions.

In both cases, the goal of an appeal is the same, which is to secure maximum compensation for mesotelioma and other serious asbestos-related injuries. In a civil case, this compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages are usually available as well. Different damage rules apply in workers’ compensation and VA disability cases.

Workers’ Compensation and VA Disability Appeals

Usually, if an asbestos exposure injury was work or service-related, workers’ compensation and VA disability are the exclusive available remedies. However, in most states, these victims can also file civil claims, in some situations.

ALJ Appeals

Before we discuss the nuts and bolts of ALJ hearings in workers’ compensation and VA disability cases, we should point out that most of these cases resolver before the hearing, mostly because of what happens during descubrimiento.

Usually, a third-party mediator oversees settlement negotiations. Mediators ensure that neither side makes a low-ball or “my way or the highway” offer. When both sides work hard to reach an agreement, that’s usually what happens.

Discovery, which is an information exchange process, puts both sides in a talking mood. Player A cannot bluff when Player B knows what’s in his/her hand. Instead, everyone must play the cards they’re dealt.

Legally, an asbestos exposure lawyer must prove that the injury was work or service-related. Furthermore, an attorney must prove that the damages, mostly medical bills, were reasonable.

Logistically, an ALJ appeal is like a trial without a jury. The ALJ is the legal referee as well as the factfinder. At the hearing, attorneys introduce evidence, challenge evidence, and make legal arguments. These full hearings are much different from the paper reviews that preceded them. Therefore, these hearings require extensive preparation.

There’s a major fly in the ointment. Usually, the ALJ is a government employee or contractor. Most ALJs remain independent in these environments, but that independence has limits.

Federal Court Appeals

As insurance company interests become more entrenched at the ALJ level, a federal court VA disability or workers’ compensation appeal has gone from a Hail Mary pass to part of the process.

Federal appeals court judges have lifetime appointments and are therefore completely independent. Federal appeals courts usually have more resources, and are therefore more thorough, than ALJs. An ALJ might have an assistant or two. A federal appeals court judge has resources like a large court staff and one or more judicial clerks.

Now for the bad news. Federal appeals courts use the aforementioned abuse of discretion standard. Unless the ALJ made a major error, an appeals court is unlikely to overturn that decision.

Furthermore, procedure in federal appeals courts is extremely formal. For example, when we write briefs for a federal appeal, we often spend almost as much time formatting the document as we spend researching and writing it.

Civil Appeals

Some environmental exposure victims bypass the civil system altogether. They file claims with a victim compensation fund. This process involves lots of negotiation, but little or no litigation.

However, most asbestos exposure victims go through the system. Victims are on offense during the above-discussed ALJ appeals. But victims are usually on defense during civil court appeals. They must prove the trial judge didn’t abuse his/her discretion.

Circuit Court

Generally, the losing party in a trial court is entitled to one free appeal in a circuit court. The U.S. appeals court system is divided into eleven circuits. The Fifth Circuit covers Texas, Louisiana, and Mississippi.

If the trial court sided with the victim, on appeal, the victim doesn’t have to prove the exposure case all over again. Instead, s/he must prove the judge didn’t abuse his/her discretion. Examples of an abuse of discretion include:

Making improper comments that favor one side,
Barring evidence that was clearly admissible or admitting evidence that was clearly inadmissible (balls and strikes in baseball), and
Clear legal mistakes, like using the wrong set of jury instructions.

Additionally, in most cases, the appealing party must prove the mistake affected the outcome. For example, if a confessed child rapist’s lawyer was inept, the attorney’s mistakes probably didn’t affect the trial’s outcome.

One further additional note about settlements. Usually, settlements are final and unappealable. For instance, if a victim’s settlement didn’t properly account for all future losses, such as future medical bills, the victim is usually financially responsible for these charges.

Supreme Court

Unlike circuit court judges, the Supremes can pick and choose the cases they want to hear. Currently, the Court only agrees to hear about 5 percent of appeals filed.

Back in the 1980s and 1990s, asbestos exposure and asbestos regulation were hot button issues. Today, the environment is much different. Nowadays, the Supreme Court might be interested in a headline-grabbing asbestos air quality regulation case. But the Justices rarely agree to hear asbestos exposure matters or any other personal injury appeals.

That said, in 2018, the Supreme Court confirmed that exposición de segunda mano is real, stating “[i]t has been repeatedly and consistently demonstrated in the medical and scientific literature that family members exposed to asbestos dust from laundering a worker’s clothing have a significantly increased risk of developing mesothelioma.”