Starting the mesothelioma lawsuit process can be difficult, especially when undergoing treatment or grieving for the loss of a loved one. Finding a lawyer who understands the process and will work with your situation can give you a refreshing sense of freedom so you can focus on recovering and spending time with family.
It is important to begin the asbestos lawsuit process right away, as every state has its own deadlines and statutes of limitations that can prevent you from getting compensation if you wait too long.
There are two primary types of mesothelioma claims that can be filed: personal injury and wrongful death. Which type of complaint gets filed depends on whether the mesothelioma victim is still alive and who is filing the lawsuit. An experienced mesothelioma lawyer can help you understand which type of asbestos lawsuit you will need to file based on your individual situation.
5 Facts About Asbestos Lawsuits
- Personal injury lawsuits related to asbestos are the longest-running “mass tort” litigation in American history.
- The majority of mesothelioma legal cases are settled out of court without ever going to trial.
- The number of mesothelioma and other asbestos-related claims has continued to increase rapidly in recent years.
- Non-traditional companies and products that contain asbestos, such as cosmetic talc, are increasingly at the center of new lawsuits.
- Mesothelioma trust funds contain more than $30 billion in assets to cover payouts of settlements and verdicts from mesothelioma disputes.
Types of Mesothelioma Lawsuits
Personal Injury Lawsuit
- Submitted by the patient after receiving a mesothelioma diagnosis.
- Filed against the company (or companies) responsible for the asbestos exposure leading to the disease.
- Claims specific damages due to illness caused by asbestos exposure.
- Allows the patient to recover money for treatment, travel, lost income, pain and suffering, and related costs.
Wrongful Death Lawsuit
- Submitted by surviving family after someone dies from mesothelioma.
- Filed against the company (or companies) responsible for the asbestos exposure that led to death.
- Claims specific damages related to the death of the individual.
- Allows family to recover money related to outstanding medical bills, funeral expenses, lost income potential, loss of consortium, and related costs.
Individual Lawsuits, Class Actions and Multidistrict Litigation
Some people may wonder whether their mesothelioma case will be handled individually, or as part of a mass tort such as a class action or multidistrict litigation. Your lawyer will advise you about which type of lawsuit is right for your specific situation.
Individual Lawsuits – These generally involve a single plaintiff who files suit against one or more companies over an illness related to their individual exposure to asbestos. Each side files motions and presents their evidence to a judge, ultimately being resolved either when both sides reach a settlement or the trial jury reaches a verdict.
Class Action Lawsuits – Class actions involve a person or group of people filing a lawsuit on behalf of everyone who is “similarly situated.” Classes can include anywhere from a few hundred to millions of people, and each person can decide whether to remain as part of the class action or opt out. While class actions have been filed over the years, most asbestos lawsuits are either individual or part of a multidistrict litigation.
Multidistrict Litigation (MDL) – This process allows people to file individual claims using a process that regularizes similar complaints and develops efficient procedural guidelines, allowing courts to handle more cases without lumping all 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 and which has included more than 186,000 cases since it was formed in 2006.
While every mesothelioma lawsuit is different, there is a succession of steps that every case will need to follow.
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 for your mesothelioma diagnosis, we will meet with you for a free consultation to talk about the various parts of the process. This will give you an opportunity to ask any questions you might have or go over any concerns about the legal process.
This free consultation gives us an opportunity to understand more about the way that you or your loved one might have been exposed to asbestos. We’ll also discuss your medical history, including your diagnosis, with respect to mesothelioma and other asbestos-related diseases.
Step 2: Research Work & Medical History
Once the initial consult is completed and you choose to pursue a lawsuit, our experienced mesothelioma lawyers will start collecting data to help build your case, including:
- 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 co-workers, family members, friends, and product-identification specialists
All of this information will help us build your case to make it as strong as possible.
Step 3: Asbestos Trust Recovery
Once we have collected all the necessary information, we will investigate the possibility of receiving compensation from an asbestos trust fund. These trust funds are created by companies who have previously admitted liability for asbestos-related damages, and if your situation matches one or more trusts’ exposure criteria, it’s possible you will be able to receive remuneration quickly.
Our attorneys are very familiar with asbestos trust requirements, and we have successfully submitted many claims on behalf of our clients who qualify.
Step 4: Other Recovery Options
Not every company that makes or has made products containing asbestos has a trust. Therefore, after evaluating the potential for compensation through asbestos trust funds, we 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 one to two months, our attorneys 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. Which venue is best for your lawsuit can be affected by a number of different factors, such as:
- 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, we will file a formal complaint on your behalf. The complaint will detail a number of legal causes of action against the asbestos company (or companies) that are likely culpable in causing or contributing to the mesothelioma diagnosis at the heart of the suit. The number of defendants (companies) named in the initial complaint will depend on both the type of mesothelioma that the victim was diagnosed with and the amount of exposure that person experienced.
Step 7: Discovery Phase
Upon filing the lawsuit, the legal process will move to the discovery phase, where lawyers on both sides will present information in an effort to either support the complaint (plaintiff) or undercut it (defendant). 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. On the rare occasion that a mesothelioma lawsuit does go to trial – which will only happen with your consent – our attorneys have the experience, knowledge, and competence to see it all the way through.
What to Expect During a Lawsuit
Filing a lawsuit can be emotionally taxing, 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, simply familiarizing oneself with the steps involved in a lawsuit may help a mesothelioma victim and/or family member to prepare mentally for any challenging situations that may arise throughout the course of the process of filing a lawsuit.
“How long will my lawsuit take?” is a common question asked by many mesothelioma victims and their families, especially given the dire prognosis of the disease. Unfortunately, it’s a question that cannot be answered up front, as the length of the legal procedures tied to the lawsuit can depend heavily on several different elements, including:
- How many plaintiffs are filing
- How many defendants are named in the complaint
- Whether the case is consolidated with other similar cases
- The number and type of pretrial motions that are filed
- Complexity of the facts that need to be determined
- Scheduling and availability of all the parties involved
- The current docket load in the chosen venue
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 — and that doesn’t include the weeks or months of consultation, research, and discovery that happens 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
At trial (or even before), the defendant may try to blame your medical diagnosis on things that let them eschew any responsibility. For example, companies may try to assert that your mesothelioma or asbestos disease was related to other factors, such as:
- 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 occupational asbestos exposure)
- Genetic problems or a family history of predisposition for mesothelioma or other forms of cancer
- The accuracy of your medical diagnosis or the qualifications of the medical professional who diagnosed you
Having all of these aspects of your life questioned again and again may cause anxiety. However, the good news is that you don’t have to respond to these assertions yourself. An attorney who has experience handling mesothelioma litigation will be able to skillfully address these counterclaims.
When faced with the prospect of being held liable for damages related to asbestos, many defendants may also attack the manner in which your complaint was filed. This includes, but is not limited to:
- 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 timeframe
- 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 diligently researched 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
How long do mesothelioma lawsuits take?
This is a common question, but a very difficult one to answer. In general, most mesothelioma lawsuits take about 1 – 3 years. For cases that go to trial, the average length of the trial is 38 days, but there is a lot of research, document preparation, and motion filing that must be done before the trial even occurs.
The biggest factors affecting the duration of a mesothelioma lawsuit are:
- The number of plaintiffs and defendants included in the lawsuit
- Whether the case can be consolidated with other similar cases
- The number and type of pretrial motions that are filed
- Complexity of the facts that need to be determined
- Scheduling and availability of all the parties involved
- The congestion of the calendar (docket) in the chosen venue
Throughout the process, your lawyer will be able to update you on how long each step could take based on previous experience – but keep in mind that every case is different, and past events do not guarantee a similar experience for you.
I lost a loved one to mesothelioma years ago. Can I still file a lawsuit?
Each state has its own set of rules limiting the amount of time you have to file a mesothelioma lawsuit. These rules, known as statutes of limitations, can range from 1 – 6 years by state, and some states even have different deadlines for personal injury claims and wrongful death claims. The good news is that victims of asbestos exposure can generally file a claim in any state where they have resided, worked, or served in the military, giving you more options and possibly extending your overall timeframe.
Even if the statutes of limitations have passed to file a lawsuit, you still may be able to receive financial assistance in one or more other ways:
- Trust funds set up by companies that have admitted liability for asbestos exposure
- Veterans’ benefits if you served in the military
- Workers' compensation, even if you are already retired
To understand all of your filing options and the associated deadlines involved, contact a lawyer who is knowledgeable and has the broad experience to handle your specific case.
I don’t know where/how I was exposed to asbestos. Who do I sue?
One of the first things your mesothelioma legal team will do is review your personal history. They will ask about:
- Where you have lived, traveled, and attended school
- What companies you worked for and what jobs you held there
- Whether you served in the military and what bases or ships you were stationed on
- Any other related details about your asbestos exposure
Your lawyers also will help you gather documentation to provide more details about each of these things, including employment records, union membership, military service records, etc.
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. 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 at a company that produces or uses asbestos products, you could even be at risk of second-hand 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 due to that exposure.
Since the only known cause of mesothelioma is asbestos exposure, if you are diagnosed with mesothelioma, then asbestos exposure must have occurred at some point in your lifetime. A lawyer with experience in mesothelioma cases can help you discover where that exposure occurred and hold the responsible parties liable.
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.
How much compensation can I receive if I file a lawsuit?
The actual amount you can receive for a mesothelioma claim depends on a wide variety of factors:
- Residence, employment, and military service locations
- Current age, age at exposure, age upon receiving a mesothelioma diagnosis
- The specific asbestos materials or products involved
- The amount of pain and suffering endured as a result of the disease
The final compensation amount will also take into account the amount of money spent due to a mesothelioma diagnosis, including:
- Lost wages from unemployment
- An inability to support dependents
- Medical expenditures for diagnosis and treatment
- Treatment-related travel costs
- Funeral arrangement expenses (for wrongful death claims)
To make sure you receive the highest level of compensation entitled to you, it is important to keep an organized folder with all of your bills, receipts, and other statements of payments or expenses related to your disease and/or exposure.
Will I need to travel if I file a lawsuit?
Asbestos attorneys understand that mesothelioma patients often have difficulty traveling, whether due to medical problems, appointments, or other concerns. With that in mind, conscientious mesothelioma lawyers will generally travel to the patient to conduct interviews, gather documentation, and perform other related tasks relevant to the case.
As your legal representative, a mesothelioma lawyer will also appear in court on your behalf, which means you will typically not need to travel in such instances. Even if you are not present in court, you will still retain full control over your legal rights, and your lawyer will be obligated to follow your instructions.
Who can file a mesothelioma lawsuit?
In general, there are two types of individuals who can file a mesothelioma lawsuit:
- Someone who has recently been diagnosed with mesothelioma
- The next of kin of someone who died from mesothelioma
In some cases, other family members may be able to file on behalf of someone who is too sick to file on their own, or who has recently died from mesothelioma.
Who gets the final say on whether to settle or go to trial?
The client always has the final say with regard to accepting or rejecting a settlement. This is done by formally agreeing, usually with a signature, to accept a settlement offer before any money is awarded.
Author: Linda Molinari
Editor in Chief, Mesothelioma Cancer AllianceRead about Linda
Reviewer: Jennifer R. Lucarelli
Lawyer for Mesothelioma Victims and Their FamiliesRead about Jennifer
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