Will I Need to Testify in My Talc-Asbestos Injury Case?

In recent years, thousands of consumers have filed lawsuits alleging a link between talc-based cosmetic products and ovarian cancer and other illnesses. If you're considering a legal claim over harm caused by a popular product like Johnson's® Baby Powder, one concern might be whether you'll need to testify. The short answer is probably yes. But when and where?

When a Plaintiff Might Testify in a Talc-Asbestos Case

There are usually two potential times when a plaintiff (the person filing a talc-asbestos lawsuit) will need to testify. The first is during discovery, when the defendant (typically a talc product manufacturer like Johnson & Johnson) asks to take the plaintiff's deposition. The second potential setting for the plaintiff's testimony is during trial.

Deposition Testimony

A deposition is a live question-and-answer session in which a person (whether a party to a lawsuit or a witness) answers questions under oath. In a talc-asbestos case, the defendant manufacturer (usually through a team of attorneys) will want to take a plaintiff's deposition for a number of reasons, including:

• to get an idea of how credible and sympathetic the plaintiff might come across to a jury
• to find out more about the plaintiff's legal claims (including details of the plaintiff's diagnosis of health problems linked to the presence of asbestos in a talc product)
• to obtain additional information that may support or refute a potential legal argument
• to get the plaintiff to confirm a particular statement or fact while under oath
• to get information to potentially contradict something the plaintiff already said or might say in the future, and
• to ask questions that might lead to information not otherwise known.

Trial Testimony

Most talc-asbestos cases reach settlement, so it's rare for these kinds of lawsuits to reach the trial stage. And a plaintiff is not legally required to testify at trial, but it's usually expected. When a plaintiff doesn't testify, the judge or jury deciding the case might assume there's a weakness in the plaintiff's evidence or something he or she is trying to hide. But more importantly, a plaintiff's testimony can be very compelling, especially to a juror. Almost no other piece of evidence from the plaintiff can convey the extent of the harm and other losses the plaintiff has experienced.

Likelihood of Plaintiff's Testimony in a Talc-Asbestos Case

It's likely that the plaintiff will at least need to testify in a deposition. As mentioned above, most talc-asbestos cases reach settlement, but it's rare for any kind of resolution to take place before the two sides go through the information-gathering "discovery" process. A key tool in this process is the deposition. At a minimum, it will give the defendant an idea of what to expect from the plaintiff should they testify at trial.

While the plaintiff's deposition might not be as important as an expert witness's deposition in a talc-asbestos case, the defendant will want the opportunity to ask the plaintiff about a number of details related to the case, especially if the product manufacturer believes that:

• the true nature and extent of the plaintiff's claimed talc-asbestos illness is different from what's being alleged, or that
• a preexisting condition or some other cause might explain the plaintiff's claimed illness.

The likelihood of a plaintiff testifying at trial is much lower, simply because there's little chance of a trial actually taking place. But when a talc-asbestos case does make it all the way to trial, the plaintiff's testimony will only improve his or her chances of winning, since:

• The plaintiff's own words will help bolster the case. In many talc-asbestos cases, a plaintiff will want to recover compensation for pain and suffering, loss of consortium, and other damages that are fairly subjective from person to person. No one knows more about these damages, and their impact, than the plaintiff. (More: How much is a talc-asbestos case worth?)
• The defendant might contend that the plaintiff should have done more to reduce any harm or lessen the impact of any illness that could be linked to use of a talc product that may have contained asbestos. The plaintiff will want an opportunity to refute this argument.

If you're thinking about filing a lawsuit over cancer or some other health problem that might be caused by use of a talc-based product, you and your lawyer will work together to develop the best strategy for your case. Learn how to find the right attorney for you and your talc-asbestos case.