What You Need To Know About Damages In Asbestos Cases
July 17, 2017 | Mesothelioma
In negligence cases, “damages” refers not to an amount of money but to a concept that victims should be restored to their condition before the negligence occurred; in this case, that negligence is exposure to dangerous asbestos.
However, since no one on this earth has the power to turn back the clock to a time before the victim first experienced pericardial mesothelioma symptoms, and civil judges cannot put tortfeasors (negligent actors) in jail except in very extreme cases, money is the only remedy available.
Elements of a Mesothelioma Lawsuit
Since the plaintiff has the burden of proof in mesothelioma lawsuits, the amount of damages is directly tied to the amount of evidence in the first four elements of a negligence case.
- Duty: The nature of the tortfeasor’s legal responsibility depends on the nature of the relationship between the two parties. In most direct exposure cases, the tortfeasor has a duty to take reasonable care to ensure the safety of visitors; in most ambient exposure cases, the tortfeasor has a duty to warn potential victims about any hidden defects.
- Breach: In both types of cases, any exposure to asbestos is arguably a breach of duty, because these fibers are invisible (latent) and highly, highly toxic.
- Factual Cause: There must be a connection between the asbestos handling methods at that site when the victim/plaintiff was nearby and the victim/plaintiff’s mesothelioma.
- Legal Cause: The tortfeasor’s misconduct must have been a very substantial cause of the victim’s damages, as opposed to just one out of many causes. This element is not always easy to establish in asbestos-dense areas.
The plaintiff must establish each element above by a preponderance of the evidence (more likely than not), which is the lowest standard of proof in the American judicial system.
Compensatory damages, which are outlined below, are normally quite high in asbestos exposure cases, due to the nature of mesothelioma. Because it may take up to fifty years for mesothelioma to fully develop, early diagnosis is very rare, so the mesothelioma prognosis is usually quite poor with a life expectancy of less than two years.
As a result, mesothelioma treatments are usually quite expensive, since doctors must use very aggressive measures to contain the disease and prolong the victim’s life as long as possible. In fact, it is not unusual to see treatment costs of $1 million or more.
These damages include money for economic losses, such as medical bills, and noneconomic losses, such as loss of enjoyment in life. Typically, personal injury settlement money that is directly attributable to a physical injury is tax free.
The nature of damages largely depends on the mesothelioma stage. In treatable Stage I and Stage II cases, most victims have very high medical bills because of the treatment costs, but their pain and suffering may not be as severe. In untreatable Stage III and Stage IV cases, the medical bills may not be as high but the pain and suffering is quite intense.
Bear in mind that these comparisons are relative, because all cancer is expensive and painful.
To obtain additional damages, a New York mesothelioma lawyer must present clear and convincing evidence that the tortfeasor intentionally disregarded a known risk and therefore endangered the safety or property of others.
The risk must be more than a general awareness that asbestos is dangerous. Instead, the evidence must indicate that the tortfeasor knew the people might be exposed to asbestos fibers from its mine, shipyard, construction site, or whatever, yet the tortfeasor did nothing to protect people from these tiny fibers.
In some cases, a punitive damages cap may apply.
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