The Burden of Proof in Asbestos Cases: What You Need to Know
The minimum burden of proof in an asbestos exposure case is only a preponderance of the evidence, or more likely than not. That’s one of the lowest burdens of proof in American law. Note that we said this standard is the “minimum” burden of proof. Usually in life, minimum effort produces minimum results. So, a preponderance of the evidence is sufficient, if the victim is willing to settle for less.
Additionally, evidence is very hard to collect in asbestos exposure cases. The latency period for asbestosis, mesothelioma, and other asbestos exposure illnesses is usually more than fifty years. Over such a long time period, companies go out of business and records become unavailable. Or, to put it more precisely, those records are harder to find.
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If you may have been exposed to asbestos, speak with your healthcare provider about tests and screening to help detect the presence of asbestos fibers and asbestos-related diseases.
WARD, the worldwide asbestos research database, makes evidence collection much easier in these situations. This database, which only a select few Austin asbestos attorneys can access, quickly sorts through millions of documents from all over the world, just to find the one “smoking gun” in a specific case that makes the difference between maximum compensation and minimal compensation.
Additionally, there’s usually a connection between the amount of evidence an Austin mesothelioma lawyer presents and the amount of compensation jurors award. This dynamic doesn’t apply in all cases, meaning that the availability of evidence often affects the legal plan in the case. More on that below.
“The overall evidence suggests there is no safe level of asbestos exposure.”Source: National Cancer Institute (NIH)1 |
Evidence in Primary Exposure Asbestos Claims
Most asbestos exposure claims are primary (service or work-related) claims. Obtaining fifty-year-old service records is difficult, but usually not impossible. Obtaining fifty-year-old employment records is a different story. For example, if the victim worked in an asbestos hotspot like Shreveport in the 1970s, the victim’s employer has probably changed ownership several times or even gone out of business altogether.
How to find old evidence of asbestos exposure with W.A.R.D., the largest database of asbestos info on the planet.
That’s where a WARD-like database comes into play. An attorney can quickly locate employment records that might take weeks or months to find otherwise.
Accurate medical records are hard to acquire as well in primary asbestos exposure cases. Mostly because of the long latency period, asbestos exposure illnesses are difficult to diagnose. If a victim complains of trouble breathing or general pain, lung disease and mesothelioma aren’t on a doctor’s radar. No employment or service records contain red flags.
An Austin mesothelioma lawyer helps in these situations as well. Most states allow workers’ compensation claimants to choose their own doctors, at least for a second opinion. All VA disability claimants have the right to an IME (independent medical examination). Attorneys connect victims with medical toxicologists and other such professionals who have special expertise in this area.
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Evidence in Secondary Asbestos Exposure Claims
VA disability and workers’ compensation are no-fault claims. If the asbestos exposure injury was service or work-related, benefits are available as a matter of law. These benefits usually include some form of lost wage replacement, as well as some form of medical bill payment.
The government, and private insurance companies, often dispute the amount of damages, which in this case is usually a mesothelioma or other diagnosis. But that’s the subject of a different blog.
Proving second-hand asbestos exposure (secondary asbestos exposure)
Secondary, or environmental, exposure cases are usually failure to warn cases. Like all other companies, asbestos providers have a duty to warn about known side-effects. Like many other companies, asbestos providers didn’t do so.
“Generally, those who develop asbestos-related diseases show no signs of illness for a long time after exposure.”Source: National Cancer Institute (NIH)2 |
Evidence of primary asbestos exposure can help show that a family member came into regular contact with the primary person’s asbestos-tainted work clothing.
During discovery, an asbestos exposure lawyer typically finds smoking guns like safety memos that clearly show the company knew about the asbestos hazard, but it hid those hazards from the general public.
Attorneys easily subpoena documents during discovery, and easily analyze these documents thanks to WARD-like technology. Victims without lawyers have limited access to the subpoena power and are often unable to cope with document dumps. In response to a subpoena, a company might provide millions of pages of documents, none of it digitized. Looking for the smoking gun is like looking for a needle in a field of haystacks.
A person injured by asbestos exposure may be legally entitled to multiple types of asbestos claims for compensation.
These asbestos claims usually include a lawsuit, involving the laws and rules of evidence in litigation.
These claims often overlap. Assume Larry was a naval longshoreman who worked on vessels built before 1980. All navy ships built before 1980 extensively used asbestos insulation. He unwittingly brought a few stray fibers home on his shoes and in his car. Some fifty years later, Larry and his wife Jane are both diagnosed with mesothelioma.
Larry probably has a primary exposure VA disability claim. Jane probably has a secondary exposure failure-to-warn claim against the company that manufactured the asbestos-laced goods Larry handled.
Do You Qualify For Compensation?
Quickly and easily find out how you were exposed by searching W.A.R.D., the largest asbestos database on the planet.
FREE SEARCH >VCF Claims
Most people are well aware that the legal process can be long and cumbersome. An asbestos bankruptcy claim might be the fastest way to obtain compensation. Courts aren’t involved in these claims, which means no discovery.
These asbestos claims don’t have adverse lawyers, which means no depositions and a lower evidence requirement. No one contests the victim/plaintiff’s evidence, so a victim/plaintiff has the first and final word. In other words, a lack of evidence usually doesn’t affect the case.
Understanding asbestos bankruptcy trusts (also known as Victim Compensation funds, or VCFs..
As a condition of bankruptcy, most of thich were granted in the 1980s, a federal judge forced defunct asbestos companies to establish large Victim Compensation Funds. Even all these years later, these funds still contain upwards of $30 billion.
VCF claims may not require a lawyer to file, but they definitely require a lawyer to resolve, at least if the victim wants maximum compensation.
Why to get an asbestos attorney before applying for compensation
The lack of court supervision makes the claims process faster and the resolution process slower. Since there’s no judge, there’s never a duty to negotiate in good faith, and there’s no looming trial date to motivate settlement.
Therefore, fund administrators often make low-ball offers, and they are in no hurry to make a reasonable settlement offer.
In addition, proving second-hand asbestos exposure can require knowledge of how asbestos travels, how easily it is inhaled, and which of its effects can be proven.
Only an attorney who is a good negotiator as well as a good litigator, can overcome these hurdles.
AsbestosClaims.Law
For Justinian C. Lane, getting compensation for asbestos victims is personal.
Justinian’s grandparents and his father all worked with asbestos in their younger years and died from asbestos-related cancers in their later years.
At the time of each of their deaths, no one in Justinian’s family knew that they were eligible to file an asbestos lawsuit and to seek compensation from the asbestos trusts.
Because no one in Justinian’s family knew their options, they never received any compensation for the death of their loved ones.
If you believe that you or your family member’s injury was related to asbestos exposure, you could be entitled to significant compensation.
This is money you could use to cover the costs of asbestos removal services, pay for medical treatment, and preemptively protect your physical well-being.
There are also asbestos trusts that offer compensation much more quickly and easily (without filing a lawsuit.)
If you’d like help with filing a claim, please get in touch by email at [email protected], or call or text us at (833) 4-ASBESTOS (427-2378) or (206) 455-9190. We’ll listen to your story and explain your options. And we never charge for anything unless you receive money in your pocket.
In addition to legal claims, veterans disability, social security and employment protection like workers compensation, FELA and The Jones Act for maritime workers, there are asbestos trusts that have been set up to compensate those harmed by asbestos without having to file a lawsuit.
There is no risk or cost to speak with one of our staff about your asbestos litigation. There are no fees unless you receive money.
If you have any additional questions or concerns related to asbestos, check out our website and YouTube page for videos, infographics and answers to your questions about asbestos, including health and safety, asbestos testing, removing asbestos from your home and building, and legal information about compensation for asbestos injuries.
Introducing the largest database of asbestos information on the planet.
W.A.R.D., which stands for the Worldwide Asbestos Research Database, helps clients to narrow down when and where they may have been exposed, as well as which products may still contain asbestos. W.A.R.D. will also help indicate compensation types and how much a person may be entitled to.
1 National Cancer Institute (NIH), Asbestos Fact Sheet.
2 National Cancer Institute (NIH), Asbestos Fact Sheet.