Since numerous people have filed a mesothelioma lawsuit in the past few decades alone, asbestos litigation has become one of the most expensive and intricate types of cases in the history of United States court cases. The majority of asbestos claims are made up of plaintiffs who have been diagnosed and are suffering from
malignant mesothelioma or other diseases after prolonged exposure to asbestos in the workplace. In other instances, a wrongful death lawsuit is filed on behalf of the victim by loved ones in the event that the asbestos illness causes death before the victim can seek
compensation.
Over $30 billion is currently available in trust funds for victims of asbestos-related diseases. If you or a loved one have been diagnosed with mesothelioma or asbestos-related lung cancer, you may qualify for substantial compensation. Use our free Asbestos Attorney Locator Tool today to find a leading mesothelioma attorney in your area.
Filing a Lawsuit for Mesothelioma
If you or a loved one is a victim of an asbestos-related illness and you’ve decided to file a lawsuit, keep in mind that it is crucial that you follow certain procedures in complex cases such as these.
Legal representation from an experienced attorney who has dealt with asbestos cases, whether mesothelioma class action lawsuits or individual cases, is highly recommended.
Asbestos laws and lawsuits have an array of complications and details that many general practice lawyers may not be familiar with, let alone an average person who is already dealing with a life-threatening disease. An experienced, knowledgeable asbestos attorney understands the detailed process of a lawsuit and will help you significantly.
1) Gathering Important Documents
To begin the process, you and your asbestos attorney will start by gathering pertinent information that will help you to prove your case. For example, typical information consists of your past employment history, medical history and reports, medical expenses that you’ve incurred since the beginning of your illness, documentation of asbestos in the workplace, documentation of physical disabilities and activities you can no longer do, and what disabilities you now live with after
asbestos exposure. Your asbestos attorney will be able to give you additional details as to what information needs to be gathered for your specific case.
2) Pre-litigation Stage
Before attorneys file a complaint, they go through a pre-litigation stage in which they’ll try to negotiate and settle with the defendants before submitting your case to the court. In some cases, the defendants may choose to settle at this point, but in most instances they will refuse to negotiate.
This is completely normal, as most defendants do not want to pay out money for their mistakes, and initially, they’ll deny your claim and deny that they were at fault for your illness. Experienced mesothelioma lawyers are well-aware that this will more than likely happen, and will know how to handle this part of the process.
If a settlement isn’t reached during the pre-litigation stage, your attorney will file then file a complaint, also called a written complaint. A complaint is a document submitted to the court that describes the basic information on your lawsuit, legal references that substantiate your claim, the names of other parties involved, and what your desired outcome is.
Keep in mind that other parties involved may be one person or company, or several. Once your complaint is submitted, it will get the process rolling in the court of law. The defendant or defendants involved will receive notification letting them know that you have filed a lawsuit against them. The defendants will receive a copy of the complaint and will then have a certain amount of time to file a response.
Usually, 30 days are allotted in order for the defendants to respond. Once a response is received, your attorney will spend time preparing the arguments and evidence. This can include gathering key witnesses and medical experts, preparing proof of asbestos use at your previous workplace, and gathering any other pertinent information. This process is known as the “discovery.”
If the defendant does not respond, the court may enter a judgement against them, which results in a default decision in your favor. At this point, your attorney will be able to provide you with information regarding the damages you’re entitled to.
3) The Discovery Phase
Mesothelioma lawsuits almost always have a discovery phase. During the discovery phase, the defendant’s attorney will typically try to rebuff your case and look for evidence that their client did not cause your illness. It’s your attorney’s job to gather as much evidence as possible, as previously mentioned, in order to prove your case.
Because of the complexities involved during this part of the procedure, the discovery process may take several months or more to complete, making it the longest part of the process. Both sides are afforded the opportunity to investigate the other side’s information and position regarding the case. Both sides are also allowed to ask questions, review your medical and work history, and take part in depositions.
It’s important to understand beforehand that the discovery phase is typically the most uncomfortable part of your lawsuit. Your personal life, habits, and history may be investigated and combed through thoroughly, and your family, friends, and even co-workers may be interviewed. Keep in mind that this is just part of the legal process.
In addition, during the discovery phase, the likelihood of the case going to a trial vs. a settlement will become more apparent. For example, the defendant’s attorney may see that the evidence against their client is overwhelming, whether through medical documents that supports the case, past work history of the plaintiff, history of asbestos use from the defendant’s company, and more. At this point, the defense may decide to negotiate a settlement instead of rebuffing the substantial evidence. If this happens, the discovery phase will be shortened significantly.
Once the discovery phase is over, your attorney may also offer to settle out of court with the defendant. If the evidence is strongly in your favor, the defendant’s attorney will have no problems attempting to negotiate a settlement. If, however, the defendant refuses the settlement amount, going to trial is the next step.
4) Trial or Settlement
If your case goes to trial, depending on the laws in your state, you may or may not have to appear. Your attorney will be able to provide you information pertaining to the laws in your state. Once the trial starts, both sides will be provided the opportunity to present evidence, examine witnesses, and provide information in order to convince the jury that their client is in the right.
The length of trial will depend upon witnesses, medical documents, and how complicated your case is. However, the trial phase is usually shorter when compared to the discovery phase.
After presenting evidence on both sides, the plaintiff and defendant’s attorneys will both have the opportunity to sway the jury via closing arguments. Closing arguments give both sides a final chance to reiterate why the verdict should go in their favor.
Once the jury has rendered a verdict, the trial phase is over. You’ll then learn if you have lost or won your case. If you win your case, you’ll be told the exact amount of damages owed by you from the defendant.
You can typically expect to start receiving payments within a few months if you win your case, although disbursements times will vary according to state. It’s important to keep in mind, however, that the defendant does have the legal right to appeal the court’s decision, which will ultimately end up prolonging your payments. Again, your attorney will be able to explain the appeals process and how it applies to your particular case.
If your lawsuit can be settled between your attorney and the defendant, then a trial will be waived once a settlement amount is agreed upon. It’s difficult to predict the exact settlement amount as each case differs and comes with its own wide array of different variables.
Yet, most settlements amounts generally factor in lost wages, medical expenses, the length of time you’ve lived with the illness, the severity of the illness, mental and emotional suffering, physical discomfort, and the amount of money, including filing fees.
Defendants can also choose to settle at almost anytime, even right up until the first day of the trial. In most cases, as previously discussed, mesothelioma and asbestos-related lawsuits are settled out of court. It’s not unheard of to go into court on the first day to learn that the defendants are ready to settle. In facts, studies suggest that between 80 to 90% of personal injury cases will settle.
“Most of the time, one of the parties has made some kind of miscalculation or mistake. The interesting thing about it is the errors the defendants make are much more costly,” said Cornell law professor, Jeffrey J. Rachlinski.
Regardless of whether your case goes to trial or is solved via a settlement, you can usually expect to receive your payments on a monthly basis as opposed to a lump sum, as most compensation amounts for mesothelioma cases are substantial. In rare instances, you may get offered a lump sum payment, but in most instances, large compensation amounts will come as recurring, monthly payments.
Although a settlement will not help you to completely rid yourself of mesothelioma, the painful
symptoms of mesothelioma, and other hardships because of the disease, the compensation is a way for companies, employers, and others who are at fault to pay back for the dangerous situations they exposed you to. In other words, it will not cure your disease, but it will hold the people responsible that contributed to your illness and will help ease the financial burden on you that was brought about from your asbestos exposure.
Wrongful Death Lawsuits
It’s important to note that there are generally two different
types of mesotheliomalawsuits: personal injury or wrongful death. A wrongful death lawsuit occurs when a family member files on behalf of someone who has died from their asbestos-related illness. A personal injury claim on the other hand, is filed on behalf of yourself if you have an asbestos-related illness or behalf of a family member who is too ill to personally file the case.
Although wrongful death is similar to a personal injury claim in that it involves asbestos-related illnesses, people who file wrongful death lawsuits may be eligible for damages that aren’t available in personal injury claims. For instance, funeral expenses and emotional suffering due to losing a loved one are generally honored.
Furthermore, damages for loss of consortium, loss of mentoring and guidance to minor dependents, and loss of financial care to dependents are also generally honored in wrongful death cases.
Statute of Limitations on Wrongful Death
Statute of limitations for wrongful death differ from personal injury claims. In some states, the statute of limitations may be as short as one year, whereas other states may offer two or three years.
In addition, some states’ statute of limitations starts during the “date of discovery,” meaning if a physician misdiagnoses a patient, yet it was discovered years later that the patient actually passed away from cancer, the statute of limitations begins on the date that family discovered the real reason for the victim’s death.
Additional Information to Consider
- There is a chance that you may need to file your lawsuit in a different state. However, this doesn’t mean you’ll need to travel. In instances when you have an out-of-state case, your attorney should make all of the preparations and handle the case. Your attorney will travel to you when needed.
- Although the lawsuit process can take several months or even years, the case may be expedited for those in extremely poor health. It’s common for the defense to try and drag the case out as much as possible, even when the plaintiff’s health is deteriorating, but an experienced attorney will work to get the case solved as soon as possible.
- Victims of mesothelioma and other asbestos-related diseases typically aren’t legally allowed to file a class action lawsuit. The reasoning behind this is because each person’s medical history is different. Each lawsuit must generally be filed individually.
Time Limitations
It’s important to file your lawsuit as soon as possible. These cases are time-sensitive and each state has its own statute of limitations. It’s important to look up your state’s statute of limitations or if your case is filed out-the-state, the statute of limitations for the state where your case is filed. State laws typically give plaintiffs one to five years to file the lawsuit, starting from the time the asbestos-related illness was diagnosed or from the time the illness was discovered.
If the victim of the asbestos-related illness has already passed away, the spouse, dependents, and/or heirs usually have one to three years from the date of death to file a wrongful death claim. Again, the time limit to file will vary according to state.
How to Pay an Attorney for Representation
Mesothelioma attorneys usually have different fees according to each law firm. However, an experienced and prominent
mesothelioma lawyer should always have the financial resources to handle your case. In turn, these attorneys are able to work on a contingency fee, meaning that you won’t have to pay anything up front. Once you win your lawsuit, whether through trial or settlement, your attorney will then be paid a percentage of the compensation you won.
Keep in mind that if an attorney doesn’t work on a contingency fee basis, it’s a good idea to find legal representation elsewhere. You need an attorney who has the up-front resources in place in order to prove your case.
The most common contingency fees range from 25% to 40% of the overall amount won by a plaintiff. Some
mesothelioma trust funds place a cap of 25% on contingency fees. Make sure you fully understand your attorneys contingency fees and how the fee process will work beforehand so that you don’t run into any confusion once you win your case.
What To Look for in a Mesothelioma Lawyer
As previously noted, mesothelioma lawsuits are some of the most intricate, difficult cases to handle. Therefore, it’s imperative to retain legal representation from a law firm that specifically specializes in asbestos-related cases. Not only should a law firm specializes in these types of cases, but they should also have a proven track record that indicates past success.
Keep in mind that just like physicians, there are different areas of expertise in law. For example, one physician may specialize in neurology while another may specialize in pediatrics. Lawyers are no different. There are a vast array of different law specialties, such as car accident, criminal, medical malpractice, general practice, and more.
Mesothelioma attorneys have in-depth knowledge regarding asbestos-related diseases, state statute of limitations, how to find the culpable parties, sharp investigative skills, and vast knowledge regarding asbestos trust funds.
History of Important Lawsuit Landmarks
Although mesothelioma is still considered a relatively rare disease in the medical world, it has been 50 years since the first mesothelioma lawsuit was filed.
The lawsuit, filed in 1969 by industrial worker Clarence Borel, became the legal turning point for victims of asbestos-related disease, as it gave victims a way to be compensated from their injuries after Borel won his case against the Fibreboard Paper Products Corporation.
Numerous memorable events preceded and followed the first asbestos, which has further helped victims and their loved ones have the ability to seek the damages they are entitled to, including:
1963-1965 Asbestos Medical Findings
Between 1963 to 1965, three physicians, Drs. Churgg, Hammond, and Selikoff, proved beyond a doubt that asbestos exposure was linked to damaging diseases. Dr. Selikoff, a general medicine physician in Paterson, New Jersey, was asked to treat members of the Asbestos Workers Union in the early 1960s. Shortly after, he noticed that a myriad of workers were suffering from mesothelioma, a disease that was and is still considered extremely rare.
In 1963, Dr. Selikoff, after extensive research, published his findings on the link between mesothelioma and asbestos in the Journal of the American Medical Association. Dr. Chugg and Dr. Hammond published similar findings, which prompted the Occupational Safety and Health Administration to enforce workplace safety regulations in regards to asbestos for the first time ever.
In 1965, Dr. Selikoff published what has become known as his most well-known findings of asbestos. Entitled “Biological Effects of Asbestos,” it was published in the Annals of the New York Academy of Sciences.
1965 Tort Laws
In 1965, the The American Law Institute of The Restatement of the Law of Torts published section 402A, which states that any party “who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is liable for the harm caused by that product to the consumer or end user.”
Although it doesn’t include harm that comes after people have been warned of the dangers of a product, when courts made the decision that
asbestos manufacturershad the obligation to inform people of the dangers of their product, a plethora of mesothelioma lawsuits followed.
