ASBESTOS LITIGATION - Complete Guide

INSIDE 

> Filing an Mesothelioma Lawsuit 

“Looking back in the light of present knowledge, it is impossible not to feel that opportunities for discovery and prevention of asbestos diseases were badly missed. All workmen should be told something of the danger of the material with which they come into contact and not left to find it out for themselves -- sometimes at the cost of their lives”

Thomas Legge Ex Chief Medical Inspector of Factories in Industrial Maladies 1934 London, Oxford University Press

Filing a Lawsuit for Mesothelioma

If you or a loved one have been 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, as asbestos-related cases are intricate and complex. Missing even one step has the potential to hinder your case significantly, which it’s why it’s extremely important to find a lawyer who knows and understands the process of asbestos claims and lawsuit.

You should always find legal representation from an experienced attorney who has dealt specifically with asbestos-related cases, whether mesothelioma class action lawsuits or individual cases. 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. Again, an experienced, knowledgeable asbestos lawyer 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 any and all pertinent information and documentation that will help you to prove your case. For example, typical information consists of your past employment history, your medical history and reports, the medical expenses that you’ve incurred since the beginning of your illness (including travel expenses to medical appointments, prescription costs, tests, therapy, home accommodations for medical reasons, etc.), 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. This is completely normal, as most defendants don’t 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 then file a complaint, also known as 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 people or companies. 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. They’ll also 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 on your behalf. 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” phase.

If the defendant(s) fails to 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

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.

Keep in mind that the the discovery phase is generally the most uncomfortable part of your lawsuit. Your personal life, habits, and history will more than likely be investigated and combed through thoroughly, and your family, friends, and even co-workers may be interviewed. This is just part of the legal process, and although it’s not exactly comfortable having your personal life aired to strangers, it’s a necessary step in order to get to your ultimate goal of compensation and hold the negligent party responsible.

During the discovery phase, you’ll find out the likelihood of the case going to a trial vs. it ending in a settlement. For example, the defendant’s attorney may see that the evidence against their client is so 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, that they know the best option is to settle the case. 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.

Remember, if the evidence is strongly in your favor, the defendant’s attorney will probably have no problems attempting to negotiate a settlement. If, however, the defendant refuses the settlement amount, going to trial is the next step. In most instances, mesothelioma lawsuits end in settlements.

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.

Common Mesothelioma Lawsuit Myths

There’s a myth that compensation in tort lawsuits take quite a bit of time. Yet, most mesothelioma lawsuits end in settlements, which means that you may receive your money faster than you think. Additionally, with the addition of trust funds from numerous different companies, you may qualify for an expedited review so that you can get your compensation as soon as possible.

Another common myth is that if an employer or an asbestos manufacturer went out business, there is no party left to sue. Even if the responsible party sold the company, there are normally stipulations in which the new company must take over pending or future lawsuits. If the party went bankrupt, there is a good chance they may have set up an asbestos trust fund to compensate people who file against them.

Yet another common myth is that employers can’t be sued at all, since it’s generally manufacturers that supply asbestos products to companies, and not employers themselves. This is true, but at the same time, employers are expected to follow federal, local, and state government asbestos laws. Claiming ignorance to these laws is not an excuse, and if you think an employer violated your rights and broke laws, you most certainly have the right to sue.

In addition to filing a lawsuit against your employer, you may also be eligible for workers’ compensation or for veteran’s benefits (if you served in the military).

Wrongful Death Lawsuits

It’s important to note that there are generally two different types of mesothelioma-related lawsuits: 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.

Class Action Lawsuits

Class action lawsuits are rarely filed by asbestos victims, but they’ve been known to happen every now and then. These types of lawsuits occur when a group of people file lawsuits together, alleging the same complaint as each other. In general, mesothelioma class action lawsuits are filed by people against companies who exposed them asbestos after knowing the dangers, but not informing the plaintiffs. Defendants can include manufacturing companies, shipbuilding companies, construction companies, mining companies, and more.

One of the most notable class action lawsuits involving asbestos was the Georgine vs. Amchem Prods., Inc. case, which occurred after 1991, when federal courts consolidated numerous cases, known as MDL 875  and sent them to the U.S. District Court for the Eastern District of Pennsylvania.

Once the cases were consolidated, it was expected that a global settlement between the plaintiffs and defendants would follow. However, this approach failed, and a large group of plaintiffs and defendants attempted to negotiate a settlement before going to trial, which resulted in the Amchen case. The parties tried to create a class action “settlement” at this point, and future claimants were to be paid from the payment system set up. Ultimately, a judge ruled against it, stating that there were far too many cases with too many different situations, which would make it unfair. After the failed Amchen class action case, most federal judges haven’t been too accepting of mesothelioma class action lawsuits.

Before deciding if you want to participate in a class action lawsuit, it’s recommended to consider other options first, as there are a few distinct disadvantages to these types of cases. Plaintiffs involved in class action lawsuits generally do not have as much control over their cases when compared to those who file individual lawsuits. In addition, class action cases usually won’t get the individualized attention from a mesothelioma lawyer that a single lawsuit does.

Class action lawsuit settlements, although ideal (you don’t have to go to court), are almost always difficult because a large amount of people don’t always agree on the same exact amount of compensation. Even if all involved parties do reach an agreed upon settlement amount, there is no guarantee that the court will approve it.

Mesothelioma Lawsuits vs. Asbestosis Lawsuits or Asbestos-related Lung Cancer Lawsuits

Although mesothelioma, asbestosis, and asbestos-related lung cancer are all diseases caused by asbestos, filing lawsuits for different kinds of asbestos illnesses aren’t always the same.

Asbestosis is life-threatening because it can lead to mesothelioma, but asbestosis alone is not considered as dire as mesothelioma. Therefore, the compensation amount may be less when compared to mesothelioma lawsuits, but there are cases in which plaintiffs have won millions for their asbestosis lawsuit. Many states will accept cases in which people with asbestosis may reasonably develop mesothelioma, and in turn, the compensation may be higher.

Asbestos-related lung cancer lawsuits have reached the thousands, annually, for the past several years. It’s considered just as life-threatening as mesothelioma, and it’s also usually diagnosed when the patient reaches the later, more advanced of the disease (also similar to mesothelioma). After surgery, however, lung cancer patients generally have a better survival rate when compared to mesothelioma patients.

Furthermore, treatment options, pain, suffering, and other conditions that come along with asbestos-related lung cancer differ from other types of asbestos illnesses, and therefore the claims process and the compensation amount may also differ.

For example, a New York boilermaker who was diagnosed with asbestos lung cancer won a settlement of $3.7 million, while during the same year, a building maintenance worker who was diagnosed with mesothelioma won a settlement of $2 million. Thomas Brown, Jr., a former oil field worker from Mississippi, was awarded $322 million for present and future medical costs after he developed asbestosis. It’s important to reiterate that each case is unique, regardless of the type of asbestos disease the plaintiff has, and the compensation can vary greatly.

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.