Types of Mesothelioma Lawsuits
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.
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.
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.
Lawsuit Process
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.
Lawsuit Duration
“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.
Procedural Motions
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:
- Home
- School
- 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.
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