What’s Involved in a Mesothelioma Lawsuit?

Mesothelioma cases are filed in state courts and each state has a statute of limitations requiring claims to be filed within a limited time after the victim’s diagnosis (often between one year and three years). But before a lawsuit can be filed, time is needed for investigating the source of asbestos exposure and determing which companies are liable. Therefore, anyone contemplating a mesothelioma lawsuit should not wait until the time limit has nearly expired before engaging an attorney.

Time is important also because victims are frequently not diagnosed until they are in the late stages of the disease, and many will not survive more than a year or two. Though it’s possible to collect compensation for the benefit of the family after the victim succumbs, the amount of compensation can be greater if the lawsuit is settled or won while the victim is able to assist in the case.

Recognizing that they’re up against the clock, many victims’ attorneys will request the court grant an expedited schedule that can lead to concluding the case within one year instead of the more typical two years. Knowing the victim’s poor prognosis, judges will often grant such a request.

The bottom line is that unless an experienced mesothelioma attorney is retained within a few weeks of diagnosis, the mesothelioma victim may not live to see how the case turns out.

The Investigation

In most lawsuits, employers are not named as a responsible party or defendant because they are shielded from employee lawsuits by workers compensation laws. Therefore it’s necessary to determine the companies responsible for manufacturing, installing or maintaining the asbestos-containing products to which the victim was exposed. (There are exceptions in some states, however, for employers who acted with callous disregard for employee health and safety. Your attorney can advise you if your employer is in this category.)

In some cases, the source of exposure may be clear. For example, the Navy veteran whose military service involved maintaining asbestos-insulated boilers and steam pipes aboard ship knows clearly where he was exposed. Experienced mesothelioma attorneys have access to existing data bases cataloging each asbestos company associated with each and every ship in the U.S. Navy. Determining whom to sue in this case is not that difficult.

Some cases, on the other hand, may not be so clear. In the case of the welder who had worked at numerous power plants throughout his career, it may require some sleuthing to determine what asbestos products were in these plants and who the manufacturers and installers were. The process may require obtaining all the victim’s work records, and thoroughly researching asbestos cases from around the country to find links between specific asbestos companies and the victim’s work sites.

Claims Against Bankruptcy Trust Funds

Another issue that may be discovered during the investigation is that one, some, or all of the responsible asbestos companies in the victim’s particular case may have filed for bankruptcy and established trust funds to handle all asbestos-related claims.

Based on a court-approved bankruptcy settlement, such companies can no longer be sued for damages. Any claims for asbestos-related injuries must be submitted to the trust fund and are settled according to pre-established rules. The experienced mesothelioma attorney knows these trust funds and the rules for settling claims efficiently for the maximum permissible amount.

If there are no other responsible companies, then the case ends with the filing and receiving of a settlement from the relevant trust funds.

Filing the Complaint

When the responsible companies have been determined (and they still exist and haven’t created bankruptcy trust funds), the attorneys prepare a complaint naming those companies as defendants and file it in state court. The defendants typically have 30 days to respond. A hearing is then held to discuss motions and establish a schedule. The victim’s attorneys will usually request the expedited schedule at this point. When the schedule is set, the discovery phase begins.

Discovery

During the discovery phase, each side is given the opportunity to question the other, and to gather the evidence from whatever sources it can find. Each side is required to share with the other all the information it intends to bring to trial.

The victim and any witnesses may be asked to give statements regarding their knowledge of the facts of the case. These statements given under oath are called depositions. Depositions are not conducted in a court, but can be taken in any location convenient to all the parties. If the victim is very ill, the deposition can even be taken in the hospital or at the victim’s home.

Settlement Negotiations

In almost every case, the parties will enter negotiations to see if a mutually agreeable financial settlement can be reached without the need for a trial. By virtue of experience, the victim’s attorney knows in advance what a reasonable settlement should be. If a fair settlement is offered, the victim is advised to accept it. Though every situation is unique, settlements are often in the six and seven figures.

In the event the attorney feels the settlement being offered is not fair, the attorney will discuss with the victim the pros and cons of proceeding to trial. It is then up to the victim to make the decision. If the victim decides against a trial, then the case is settled for the amount of compensation offered by the defendants.

Upon settlement, the victim irrevocably agrees that the compensation received is satisfactory payment in full for all liability of the defendants and no further claims can be brought.

Trial

If the case is not settled before trial, it then goes before a jury. The victim’s attorney attempts to convince the jury that the victim’s disease was caused by the irresponsible actions of the defendants, and that they owe the victim compensation for the resulting injury. The defendants’ attorney may attempt to argue that it was not their products that caused the disease or that the defendants acted responsibly and the disease was the result of the victim’s irresponsible actions.

If the victim’s case is legitimate, and the attorney’s investigation was thorough and accurate, the jury will usually decide in the victim’s favor. That is why most cases are settled before trial. When the case is not settled, it means the defendants’ believe the victim’s case is flawed or the amount being requested for a settlement is more than a jury would award.

Before going ahead with the trial, the victim and victim’s attorney should be certain of the strength of the case and the reasonableness of the damages being sought.