A mesothelioma lawsuit can seem daunting, especially as patients undergo their treatment journey. A mesothelioma lawyer can provide assistance throughout the legal process, providing a thorough understanding of how to successfully file and win an asbestos lawsuit.
There are two primary types of mesothelioma claims that can be filed, including personal injury and wrongful death. Both types of claims have important deadlines and statutes of limitations, as well as a detailed legal process that needs to be followed. An experienced mesothelioma lawyer can best advise patients and their families on the advantages and disadvantages of pursuing a mesothelioma lawsuit for financial compensation.
Types of Mesothelioma Lawsuits
Depending on who is filing the claim, mesothelioma patients or loved ones may file a personal injury or wrongful death lawsuit. The type of lawsuit differs based on who is filing, where the money is going and what expenses are being taken into consideration when determining the compensation amount. In addition to personal injury and wrongful death lawsuits, mesothelioma and asbestos cases may be handled as class action lawsuits or through multidistrict litigation.
Mesothelioma Personal Injury Lawsuit
- Submitted by the patient after receiving a mesothelioma diagnosis.
- Filed against the company or companies likely responsible for asbestos exposure.
- Claims specific damages due to illness caused by asbestos exposure.
- Allows the patient to recover money for treatment, travel, lost income, pain, suffering and related costs.
Mesothelioma Wrongful Death Lawsuit
- Submitted by surviving family member after the death of a loved one from mesothelioma.
- Filed against the company or companies responsible for the asbestos exposure leading to death.
- Claims specific damages related to the death of the individual.
- Allows the family to recover compensation related to outstanding medical bills, funeral expenses, lost income potential, loss of consortium and related costs.
Individual Lawsuits, Class Action Lawsuits and Multidistrict Litigation
Your mesothelioma lawsuit may be handled individually or combined with other similar cases through a class action lawsuit or multidistrict litigation.
- A single plaintiff files a lawsuit against one or more companies regarding injuries caused by asbestos exposure.
- Each side files motions and presents their evidence and information to the judge.
- Resolution occurs when a settlement is offered and accepted or when the trial jury reaches a verdict.
Class Action Lawsuits
- An individual or group of people file a lawsuit on behalf of a group of people that have similar injuries caused by the same incident. This can represent a few hundred people to millions of people.
- Each individual can decide whether to remain a part of the class action or to opt out.
- Most asbestos lawsuits are handled as individual cases or part of a multidistrict litigation.
Multidistrict Litigation (MDL)
- Multiple people file individual claims using a process that regularizes similar complaints.
- The procedure is designed to be quick, allowing the courts to handle a large amount of cases without lumping plaintiffs into a single class.
- The primary MDL handling mesothelioma cases is MDL 875, In re: Asbestos Products Liability Litigation, which is managed by the Eastern Pennsylvania District of the United States District Court. This includes more than 186,000 cases since it was formed in 2006.
Ultimately, an experienced mesothelioma lawyer will be able to provide you with information regarding all possibilities and advise what is best for you.
Mesothelioma Lawsuit Process
Every mesothelioma case is different, especially if the plaintiff accepts a settlement and the case is not taken to court. However, there is a general process that must be followed that can also provide insight for what patients and their families can expect.
Key Steps in the Lawsuit Process
Free Consultation Discuss legal process; answer questions
Research Work & Medical History Build your case
Asbestos Trust Recovery Assess eligibility to acquire compensation from companies via an established asbestos trust fund
Other Recovery Options Assess eligibility to acquire compensation from companies that have yet to establish an asbestos trust fund
Choosing the Complaint Venue Decide what venue will provide the best outcome for your lawsuit
Filing the Lawsuit File a formal complaint
Discovery Phase Try to reach financial settlement before the case goes to a full trial
Step 1: Free Consultation
Before filing a lawsuit, a mesothelioma law firm will provide you with a free consultation to talk about various parts of the process. This will give you an opportunity to ask any questions and express any concerns you might have.
The free consultation also gives your law firm the opportunity to understand more about how you or your loved one might have been exposed to asbestos. You’ll then discuss your medical history, including your diagnosis of an asbestos-related disease.
Step 2: Research Work & Medical History
Once the initial consult is completed and you choose to pursue a lawsuit, your mesothelioma lawyer will start collecting data to help build your case to make it as strong as possible. Research often includes:
- Medical reports from facilities where you (or your loved one) were treated for mesothelioma
- Employment history, military service records, union membership and other documents that support your employment history
- Statements from witnesses such as coworkers, family members, friends and product-identification specialists
Step 3: Asbestos Trust Recovery
Once the necessary information has been collected, your asbestos attorneys will investigate the possibility of receiving compensation from an asbestos trust fund. These trust funds were created by companies who have previously admitted liability for asbestos-related damages, and if your case matches the trusts’ exposure criteria, you may be able to receive compensation quickly.
An experienced mesothelioma lawyer will be very familiar with asbestos trust requirements and will have a successful track record of submitting asbestos claims on behalf of qualified clients.
Step 4: Other Recovery Options
After evaluating the potential for compensation through asbestos trust funds, your mesothelioma attorney will also assess whether your case may merit an action against any companies who have not yet fully admitted their asbestos liability. Over the course of 1 – 2 months, your legal team will look at the various options available and provide guidance about the best course of action based on your individual case.
Step 5: Choosing the Complaint Venue
Before filing a complaint, it’s extremely important to choose the most appropriate venue, or where your case will be handled. Which venue is best for your lawsuit can be affected by a number of different factors, including:
- Calendars and scheduling concerns
- The process timeframe
- Settlement and verdict history
- Local and state laws
Mesothelioma lawsuits may be filed in any forum where a client has lived, worked or served in the military. There are also a number of “open forum” states that may allow filing, if no other suitable venue is readily available.
Step 6: Filing the Lawsuit
Once the venue is determined, your lawyer will file a formal complaint on your behalf. This will detail a number of legal causes of action against the asbestos company or companies likely responsible for the asbestos exposure that led to your mesothelioma diagnosis. The number of defendants named in the complaint will depend on various factors, including the amount and duration of asbestos exposure.
Step 7: Discovery Phase
Upon filing the lawsuit, the legal process will move to the discovery phase, both the defendant’s and the plaintiff’s lawyers will present information to support their side of the case. During this period, both sides will file various motions, usually with the intent of trying to reach some kind of financial settlement before the case goes to a full trial.
In most cases, the lawsuit will never reach the next stage of the legal process. Instead, most complaints will be settled before getting to trial. If the mesothelioma lawsuit does go to trial, which will only happen with your consent, your attorneys will be equipped with the experience, knowledge and competence to see it all the way through.
What to Expect During a Mesothelioma Lawsuit
Filing a lawsuit can be emotionally challenging, especially if any part of the process goes on longer than anticipated. The best way to avoid or deal with unexpected complications is to have a team of dedicated attorneys who specialize in asbestos litigation. Additionally, patients or loved ones can familiarize themselves with the process to get a better idea of what to expect.
Mesothelioma Lawsuit Duration
Mesothelioma victims often ask how long they can expect a mesothelioma lawsuit to last, especially when undergoing treatment after diagnosis. The amount of time that it will take to gain compensation is very difficult to predict, as it can vary based on a variety of factors, including:
- Number of plaintiffs filing
- Current docket load of chosen venue
- Number of defendants named in the complaint
- Individual lawsuit vs. consolidated case
- Number and type of pretrial motions filed
- Complexity of facts that need to be determined
- Scheduling and availability of all involved parties
A study of consolidated cases in New York City Asbestos Litigation (NYCAL) showed that asbestos trials can range anywhere from 11 – 113 days, with an average of 11 – 38 days per plaintiff. Those averages also don’t include the weeks or months of consultation, research and discovery that happen before the trial. Lawsuits that are settled without going to trial may be shorter, but the duration can still vary greatly based on the factors above.
Behavioral and Medical Counterclaims
The defendant may try to defend their case by making counterclaims, such as blaming your medical diagnosis on other factors. This can occur before or during the trial. Asbestos companies may try to assert that your diagnosis of mesothelioma or asbestos cancer was caused by other factors, including:
- Unhealthy behaviors such as drinking, smoking or using illegal substances
- Exposure to asbestos somewhere other than identified, such as at home or a different workplace (for those who faced occupational asbestos exposure)
- Genetic problems or a family history of predisposition for mesothelioma or other forms of cancer
They may also challenge the accuracy of your medical diagnosis or the qualifications of the medical professional that gave your diagnosis. While disconcerting, your mesothelioma lawyer can skillfully address these counterclaims on your behalf.
When faced with a lawsuit regarding asbestos exposure, the defendant may also attack the manner in which your complaint was filed. Some possible challenges include:
- That the time limit afforded by the statute of limitations has expired
- Other technical problems with the petition, even if it is filed within the right time frame
- Problems with the venue chosen or reasons why a different venue is more suitable
- Your authorization to file on behalf of someone who has died from mesothelioma
When handled by an established law firm that has spent time researching and building all aspects of your case, these types of counterclaims are rarely successful.
File a Mesothelioma Lawsuit in Your State
Each state has its own rules and regulations covering mesothelioma lawsuits and other types of personal injury and wrongful death litigation, including the types and limits of compensation available. That is why it’s important to work with a nationally recognized mesothelioma law firm that has the experience and resources to handle a lawsuit in any state.
For state-specific information about mesothelioma and asbestos laws, choose your state from the list below:
Mesothelioma Lawsuit FAQs
Deciding whether or not to file a mesothelioma lawsuit can be difficult, especially for patients and family members that have no experience with the legal system. Below are common questions to keep in mind, though seeking a consultation with a lawyer is the best way to get answers to all of your questions.
I lost a loved one to mesothelioma years ago. Can I still file a lawsuit?
In addition to each state having different statutes of limitations, some states have different deadlines for personal injury claims and wrongful death claims. Even if you have missed deadlines in the state that you lived, worked or served, you still may be able to receive financial assistance in one or more other ways. An experienced lawyer can best discuss your options, which may include:
I don’t know where/how I was exposed to asbestos. Who do I sue?
Your mesothelioma legal team will thoroughly research your personal and occupational history to pinpoint potential instances of asbestos exposure. They will look into where you lived, worked, traveled and served, while also gathering employment records, service records and much more.
Based on these details and documents, it is usually possible to determine where and how you may have been exposed to asbestos by comparing your personal history to a list of known exposure sites and asbestos companies.
What if I’ve never worked for an asbestos company but still have mesothelioma?
Unfortunately, it is becoming more and more common that people who never worked at an asbestos company are developing mesothelioma. However, asbestos is the only known cause of malignant mesothelioma. Exposure can happen in any number of places, including:
- Nearby mining or manufacturing facilities
- Naturally occurring asbestos deposits
If you have a family member who has worked with asbestos products, you could be at risk of secondhand exposure. For example, as a little girl Heather Von St. James was exposed to asbestos dust brought home on her father’s jacket from a factory, and she developed mesothelioma in her mid-30s as a result.
The asbestos company where I worked has gone bankrupt or been bought by another company. Is it too late to get compensation?
Starting in the 1970s, after the link between asbestos and mesothelioma was identified a decade earlier, companies began to go bankrupt due to the high numbers of lawsuits being brought against them for personal injury and wrongful death. As a result, U.S. bankruptcy courts started requiring companies to set up asbestos bankruptcy trust funds (“asbestos trusts”) to pay both current and future claims brought against them.
Currently, there are approximately 60 different asbestos trusts that have been established to pay claims for mesothelioma and other asbestos-related diseases. Each trust has its own exposure criteria and procedures, so having an attorney who has successfully negotiated with asbestos trusts in the past is the best way to receive compensation.
In cases where an asbestos company has been bought by another company, it may be possible to bring a lawsuit against the parent company for damages its subsidiary was responsible for in the past, if an asbestos trust fund does not already exist. Talk to a qualified lawyer to determine whether filing a legal complaint is the best way to receive compensation.
Will I need to travel if I file a lawsuit?
Asbestos attorneys understand that mesothelioma patients may not be able to travel due to their health, treatment plan, appointments and other concerns. Mesothelioma lawyers typically travel to the patient for interviews, research and other tasks pertaining to the case. They will also appear in court on your behalf, allowing you to avoid travel.
It’s important to note that even if you’re not present in court, you will still retain full control over your legal rights, and your lawyer must follow all of your instructions in your absence.
Author: Jennifer R. Lucarelli
Lawyer for Mesothelioma Victims and Their FamiliesRead about Jennifer
Reviewer: Linda Molinari
Editor in Chief, Mesothelioma Cancer AllianceRead about Linda
Ableman PL. The Time Has Come For Courts To Respond To The Manipulation Of Exposure Evidence In Asbestos Cases: A Call For The Adoption Of Uniform Case Management Orders Across The Country. Mealey’s Litigation Report: Asbestos. April 2015.
Ableman PL, Kelso PR and Scarcella MC. The Consolidation Effect: New York City Asbestos Verdicts, Due Process And Judicial Efficiency. Mealey’s Litigation Report: Asbestos. May 2015.
Bates CE and Mullin CH. Show Me The Money. Mealey’s Litigation Report: Asbestos. December 2007.
Van Gelder SE and Linton AM. Non-Traditional Asbestos Litigation: New Products And Industries In The Crosshairs. Mealey’s Litigation Report: Asbestos. November 2014.