The Legal Process of Filing a Mesothelioma Lawsuit (Podcast)

Listen as Paul Kelley talks with John Maher about mesothelioma lawsuits. He explains what you need to do to get started, and then, he outlines the stages and challenges of these types of lawsuits.

John Maher: Hi, I am John Maher. I’m here today with Paul Kelley. Paul is a partner with the Kentucky Personal Injury Law Firm Satterley & Kelley, which has over 30 years of collective experience in handling cases involving mesothelioma and asbestos exposure. Today, we’re talking about the legal process of filing a mesothelioma lawsuit. Welcome, Paul.

Paul Kelley: Hey, John. How are you doing today?

Step One: Find an Attorney

John: Good, thanks. So Paul, what are the first steps that someone who’s been diagnosed with mesothelioma should take if they’re considering filing a lawsuit against their former employer or the manufacturer of asbestos containing products that they may have been exposed to?

Paul: Sure, John. I think, obviously, trying to find a lawyer is the first step. And there are a lot of options out there, and I strongly encourage people to conduct research. The internet is a wonderful thing, because it can certainly give you a lot of options, but it’s also important to be able to assess those options. And one of the most critical criteria, I think, is where the lawyer is located relative to where you are and where you think your case would be.

So for example, if you’re in Louisville, Kentucky, which is where I’m sitting right now, you should strongly consider contacting an attorney from that particular area, because that person’s likely to know the lay of the land, know the judges, know Kentucky law, know how jury instructions work, and all those sorts of things. But that having been said, there’s a lot of options out there, and conducting research is critically important. So certainly, getting comfortable with a lawyer that you’re going to hire is by far probably the most important thing that you can do. You want to feel good about the person that you’ve retained.

Step Two: Start Gathering Information

Beyond that, the next step is to start assembling the information. A lot of the good cases come down to the testimony, what the evidence is, what was the person exposed to? Where did they work? What were the various products that they were exposed to? Can they name the manufacturers of those products? Can they name distributors of those products? Can they give good detail as to how those products were used? What were the products used for? So for example, if it was an insulation product, what was it used to insulate? If it was a raw asbestos material, what was it used to make?

I have a lot of interviews with potential clients about these sorts of things, and lots of times, the exposures occurred 40 years ago, so they can’t necessarily think of all those things just straight out of the box without really taking some time and effort and energy to think about it. But that’s really the biggest difference between a successful case and an unsuccessful case. If you can’t provide the details, or if there’s not somebody that can provide the details of what you were exposed to and how you were exposed to it, then most cases aren’t going to go particularly far. I don’t expect people to be able to have that kind of knowledge the second that they’re diagnosed with mesothelioma and say, “Hey, I want to do something.” It’s going to take some work between the two of us to get to that point.

One of the biggest problems, John, is that a lot of folks didn’t know that they were exposed to asbestos when they were working with it. And that’s not uncommon. And the reason why it’s not uncommon is because the manufacturers of products didn’t advertise, didn’t make people aware that they were exposed, that there was asbestos in their product, and that they were exposing people to it.

So another important point that I make is, if we kind of talk about the chronology of events, you have somebody that had various jobs during the course of their life. Most people are exposed occupationally. Some people are exposed in the home to a consumer product. Some people are exposed in the home, because their spouse worked with asbestos products. Some people bought a product that they used in some way and were exposed.

Asbestos has this really lengthy latency period. And what that means is it takes at least 10 years, but usually a lot longer from the time of exposure until the time of the diagnosis. So there’s going to be this huge period of time where people aren’t going to think about this at all. I mean, they weren’t really aware at the time that there was a problem. They lived their life, they worked hard for their family and did all the things that they do. And then there comes the point of diagnosis. And unfortunately, the point of diagnosis is going to be one of the bleakest periods of time in anybody’s life.

Mesothelioma is a devastating cancer. Most people are going to die from it in less than two years from when they’re diagnosed. So they have to process that information first and, of course, deal with medically what needs to be done in order to prolong their life as long as possible.

Critical Tip: Don’t Speculate to the Doctor About Where You Were Exposed

Then the questions start coming. And usually, it doesn’t start with lawyers, it starts with the doctors. The doctors say, “Well, you’ve been diagnosed with mesothelioma. Do you have any idea where you were exposed to asbestos?” And this is a common problem, and I hate to bring it up, but I think it’s important for people to know, the very worst thing that you can do is to guess. It’s the absolute worst thing that you can do.

Doctors are fantastic. The doctors that treat mesothelioma are fantastic. They are trained to record everything that they’re told, and if it’s important enough for them to ask, they’re probably going to report in some way in their medical record as to what you said the exposure was. What I see a lot is people don’t have the slightest idea, and when they’re asked that question, they start to guess. They’re like, “Oh, I lived in an old house when I was a kid.”

John: Right.

Paul: So what? You lived in an old house. I mean, what my adversaries say routinely is, “Just because asbestos is present somewhere doesn’t mean that there was an exposure to the product.” So speculating that you lived in an old house that could have had asbestos, that’s not particularly helpful to anything.

Now, some folks know that they were brake mechanics, and they learned at some point in time that brakes had asbestos, and they say, “Oh, yeah, I mean, I did thousands of brake jobs during the course of my life.” That makes perfect sense.

John: Right.

Paul: Because they know that. So I always tell folks, don’t jump to any conclusions as to where or how you might have been exposed if you don’t know. If you know, you know, and you should certainly tell anybody and everybody how you think you were exposed. But sometimes it’s not that easy.

John: Right.

Paul: And for example, you and I have talked in other settings about the fact that a lot of people didn’t know that brakes contain asbestos, and they did thousands of them. They didn’t know. So they go to their doctors, and their doctor says, “Where do you think you might have been exposed to asbestos?” “I don’t know.” And the doctors, at the end of the day, it’s not really critical to how they’re going to treat you if you were exposed in any particular way.

John: Right. One exposure is the same as another exposure, basically.

Paul: In terms of what they’re doing, absolutely.

John: Yeah.

Paul: I mean, ultimately, their goal is to determine a course of treatment that’s appropriate. But they always ask, because they like to know if they can.

John: Right.

Paul: And maybe in some way, for example, if you’re still being exposed, they want to be able to tell you, “Stop.”

John: Right.

Step Three: Work With Your Attorney to Identify Exposures

Paul: It’s probably not going to do anything to make your situation better, but stop. Stop getting the exposure. But for the most part, the doctors don’t particularly care how you were exposed in terms of how they were going to treat.

My job is to figure out all those exposures. My job is to go through every aspect of your life. And what I do in every case is, when I meet with somebody brand new, after we get to know who they are and understand their situation and answer their questions about medical treatment and those sorts of things, we get into the weeds.

And I want to find out what their parents did for a living. I want to find out what their siblings did for a living. I want to find out what their spouses did. I want to find out what their hobbies are. And when we assemble all of the answers to those questions, oftentimes, we conclude where we expected to, which is the person was a brake mechanic, and I was pretty certain that that was what their exposure was going to be. And sometimes we find out that their father was an insulator for 35 years and brought asbestos contaminated clothing home and exposed their child or their spouse, and they had an exposure in that way.

Critical Tip: Focus on Your Medical Treatment and Let the Lawyer Guide the Case

So thinking back as to how you think you were exposed, your life activities, if you worked in an occupational setting, you want to be able to identify all the coworkers you can, and having that stuff ready for the first time that you meet with a lawyer is hugely helpful. If you don’t have it, that’s fine. We’ll get there. We’ll figure it all out. It’s what I tell everybody, “When you’re diagnosed with this cancer, your job is to focus on cancer and treatment and doing the things you can do to feel better. Our job is to get the evidence. But the more help that you can provide us to do that, the more successful that we will be for you.”

John: Right. So once you’re past that sort of initial discovery phase and you’ve sort of figured out where the likely exposure to asbestos was, how else does a lawyer typically guide a client through the legal system?

Paul: Well, I mean, pretty much we are the client’s sole friend, we’re the client’s ambassador, if you will. Typically speaking, the clients don’t talk to the judge, they don’t talk to the other attorneys, except in a deposition setting. We’re the conduit for all of the information that’s going to be provided to the defendants, and we are the gatherer of the evidence.

And when I get hired for a case, there are kind of two different paths that we can follow. Either it’s an exposure, whether it’s a product or a location that I’m very familiar with and I already have a treasure chest of information and we can hit the ground running. Sometimes that’s not the case. Sometimes I have to beat the pavement and try to gather evidence before we can even get to the point where we file a lawsuit.

And our goal is to always move quickly for a lot of different reasons. The biggest being that, unfortunately, our clients won’t live probably very long, and we went to try to get them their trial and their day in court as quickly as we possibly can. The other reason is the system is slow. The quicker we can get a case filed, regardless of the situation, the quicker we’ll get it to trial.

But our job is basically to take the information that our clients provide and collect other evidence and put it all together and convince a judge and jury that our client has been harmed wrongfully, lots of times maliciously, by companies that just didn’t care enough to take any precautions and to protect innocent people who are just showing up every day, trying to do an honest day’s work. But that’s our job. And obviously, there’s a lot of details that aren’t interesting enough for me to talk about in a podcast. But I spend 10 hours a day, every day, working for a variety of people and just wading through the paperwork, the discovery, the games, and all the things that we have to deal with in order to get our cases, get our clients’ cases to trial and let them have their day in court.

Expect The Case to Last at Least a Couple of Years

John: Yeah. How long does a mesothelioma lawsuit process typically take? What should clients expect in terms of timelines and potential outcomes?

Paul: Unfortunately, John, in today’s day and age, a couple years is the minimum period of time. We try like heck to get cases to trial as quickly as possible. There are certain limitations that we have no control over. I mean, the courts, we are still trying to catch up from COVID, and there is still a huge backlog of criminal cases and civil cases. So that right there can slow the process down.

Lots of times when I file a case, there are numerous defendants, anywhere from five to 45. And when you have that many defendants, you have a lot of lawyers, you have a lot of schedules.

So from filing date to trial, I would say you can count on two years. It can take longer if there are appeals, continuances, things like that. But if I were giving folks an average, I would say about two years. And it seems like a long time, and two years is a long time, I mean, it’s a long time for anything, but it goes by fast. There’s a lot of work to be done, and we get it done during that period of time. And the big fight we have is the defendant’s not wanting to do things so that they can try to delay the case. So we just put our head down and work hard to do everything we can do to get the case to trial.

And typically speaking, the court system will hold the defendant’s feet to the fire and say, “We’ve got to be able to try this case within a year and a half or two years of the plaintiff filing it.” I mean, unless there’s a reason, a good reason not to. And I think our court system and our judges work very hard to make sure that both sides have a fair opportunity to work up their case and get it to trial. But two years is a lot longer than I wish. I wish I could get it to trial. Most cases, I could probably try six months, nine months from the date that I file it. I mean, I would have it ready to go and could do it. But we have a lot of things.

John: Yeah. If you could get the day in court, you’d be able to do it in six or nine months.

Paul: Absolutely.

Stages of a Mesothelioma Lawsuit

John: Right. Can you walk us through the various stages of a mesothelioma lawsuit, from filing that initial complaint to reaching a settlement, or perhaps going to trial?

Filing the Complaint

Paul: Yeah, absolutely. So typically speaking, we file the complaint. The complaint is just, basically, a legal document that gives the defendants an idea of what the case is against them. We have, what we call in Kentucky, notice pleadings, so we don’t have to put a lot of information into a complaint. The defendants get 20 days after they’re served with a complaint to file an answer.

Asking and Answering Questions With the Defence

And from that point, there’s about six months, where the primary activities are answering and propounding written questions to the other side. So they’ll send questions to us, we’ll send questions to them. And the purpose of those questions is to kind of get a little bit more information than what we had before the case was filed. And obviously, the defendants didn’t know the case was coming, so it’s for them to get more information about what the case is about.

Preserving the Client’s Testimony

Also, during that six month period of time, I want to be able to take the plaintiff, my client’s deposition. I want to put them on videotape and present the testimony as if they were there in court. The goal is they will be there in court when the case gets tried. Unfortunately, the harsh reality is several of our clients may not make it to trial, and we want to be able to preserve their testimony and make sure that in some way they’re able to look the jury in the eye and tell the jury what happened to them.

Taking Depositions From Defendants and Witnesses

And then at some point, and I’m, obviously, going on general averages, there’s no hard and fast rule that it’s six months or nine months, but at some point in that six to nine month range, I want to start taking depositions of the defendants. Sometimes it’s a defendant that I’ve deposed before, so I really want to refine and hone in on something that hasn’t been covered before, or make sure that evidence is crystal clear as to what their responsibility is for causing our client’s disease.

Sometimes it’s defendants that we’re not as familiar with, and we’re in more of a discovery phase where we’re trying to gather information and also get some admissions as to what products they made, the asbestos content, and those sorts of things.

Then there would be witness depositions, like our client’s coworkers, people that will corroborate what our client said. Sometimes our clients have passed before we get their deposition. So a lot of times, the evidence has to come in through coworkers. So identifying and putting those coworkers up.

Gathering Expert Opinions

And then we get to the expert phase. We hire experts, who will evaluate the exposures and come to opinions concerning the cause of the disease. Maybe it’s an industrial hygienist that’ll give opinions concerning the levels of exposure. And then the defendants will put up their experts as well, who, a hundred percent of the time, say that their product didn’t… Their client didn’t cause the disease.

Filing the Evidentiary Practice

Once that part of it’s closed, we’re fairly well ready for trial. There are some other things that happen. The defendants always file something called a motion for summary judgment. It’s a legal mechanism that’s essentially a request to the court to dismiss them from the case, because there’s not enough evidence against them. It doesn’t matter how good my evidence is against the defendant. They file that motion every case. And then there’s evidentiary practice. We both file motions to say, “This evidence should come out,” for whatever reason. It’s not relevant, it’s too prejudicial, whatever the situation is.            

Settling the Case or Moving Forward With the Trial

Once a court rules on that, then it’s trial time. And at that point, when the judge says, “Defendant, I’m denying summary judgment. You have two options at this point. You try this case, or you settle with the plaintiff.” Most cases do settle. I’d say we probably try no more than three or four a year, sometimes not even that many, because most cases do settle. But lots of times, they will not settle until the defendants are staring down the barrel of a trial, and they know that the only way they’re getting out of this case is to finally, finally, accept some responsibility for causing the plaintiff’s injury.

Challenges During Mesothelioma Lawsuits

John: Okay. What are some of the biggest challenges that clients might face during the Mesothelioma lawsuit process? And how can they prepare themselves for that?

Paul: Well, I personally think the biggest obstacle that I think is unique to everybody, except for lawyers, is the timing. We just talked a moment ago that it takes a couple years to get from diagnosis, filing the trial. That’s foreign to a lot of folks. Why does it take so long? Too many people have watched attorney shows on TV, where the crime happens on Monday, and the trial happens the next week.

John: Right.

The Length of the Process

Paul: So it’s difficult for people to deal with the time factor of it. And of course, as I’ve mentioned, mesothelioma patients have other problems. They want to be able to live to be at their trial. So that, emotionally, can be difficult on people. This is what I tell everybody from that standpoint, you have to, again, focus on you.

The legal process is the wonderful thing in the United States, the jury system, and the Seventh Amendment are the foundation of what I think a civilized society should be. It’s not perfect. Nothing’s perfect. The more time that we have to prepare a case, the better it’s going to be for them. So while, yes, I could try a case in six or nine months, and in most instances for one of my mesothelioma clients, that’s what I’d like to do. But if I can’t try that case in six or nine months and it takes two years to do, that’s going to give me a lot more time to prepare and do a better job for them than if we tried the case in six or nine months.

Now, somebody might say, “Well, gosh, doesn’t that give the defendants more time?” It does, but I promise you, except for in extremely rare circumstances, they don’t utilize that time the same way we do. They don’t… The case isn’t as personal to them as it is to me. They, lots of times, represent that defendant in dozens of cases. I represent dozens of clients, but I represent one client for one case.

And it’s just different for us in how we prepare and utilize the time and the amount of years that go by. The only way that really benefits the defendant is they don’t have to pay. I’m sure you’ve heard the term to delay is not to pay. Well, their biggest strength is being able to delay a case. But their lawyers aren’t necessarily using that time the same way I am, and they’re not obsessing over the case the same way I am. Because I have one shot for this client, I mean, and I want to be as successful as we possibly can.

The Adversarial Nature of the Process

The other obstacle, I think, is just most of my people, clients, and anybody that’s a normal person that’s involved in the legal process, it gets frustrating. You want to be a nice person. You want to be the person that you always are. When you go into these depositions, and you’ve got 10 lawyers that are on the other side, and your instinct is to be who you are. And most people are nice people, they’re polite, they’re pleasant. They don’t want to think that people have ulterior motives. They don’t want to think that people are trying to get them, so to speak.

But the legal process is adversarial, and that’s exactly what’s happening on the other side of the table. And I think sometimes folks get a little flustered by the adversarial nature of the process. They get a little flustered by aggressive lawyers that may be not completely respectful of them during the deposition. They get frustrated with lawyers that might think that they’re not telling the truth, or being honest, or fully honest with them.

And what I tell everybody is, “Look, you can’t worry about what the person across the table thinks about you, or thinks about your case. The good news is our adversary’s not the decision maker, the jury is. And it’s what the jury thinks. And there comes a time where the jury doesn’t believe us either. But they usually do, and I think they will, because you tell the truth, you give the facts the best way you can, then justice will prevail in some way. But it’s like everything with life, you’re not going to make everybody happy. And you’re sure as heck not going to make the person asking you questions across the table happy when you keep identifying their client and you keep saying that their client exposed you to heavy levels of asbestos. Yeah, they’re going to get aggressive, they’re going to challenge you.”

John: Right.

Paul: “And when that happens, it means that you’ve hurt them. So don’t worry about those things.” But it’s hard to tell a nice person not to be nice.

John: Right. Right.

Paul: And that’s a challenge. But people generally get it, and they understand the process. And with everything in the legal system, you are who you are and you’re not going to change yourself, because you’re testifying in court, or in a deposition. You’re going to be the person you are. And quite frankly, those lawyers on the other side, they’re going to be who they are too. And we just have to let that all play out, and all you can control is what you can control.

Contact Satterley & Kelley If You Need Help

John: All right. Yeah. Well, that’s really great advice, great information, Paul. Thanks, again, for speaking with me today.

Paul: Thanks, John. I appreciate it.

John: And for more information about mesothelioma and asbestos exposure, visit the law firm of Satterley & Kelley at satterleylaw.com, or call (855) 385-9532.