Asbestos and Wrongful Death Lawsuits

Heirs and others might be able to bring an asbestos-mesothelioma lawsuit after the death of a family member.

Updated By , J.D.

In most asbestos-mesothelioma lawsuits, the plaintiff (the person bringing the case) has personally suffered asbestos-related harm due to the negligence or wrongdoing of an employer, manufacturer, or other defendant. But when you're making an asbestos claim after the death of a loved one, your only legal option is typically a wrongful death lawsuit. In this article, we'll cover:

  • who has the legal right to file a wrongful death lawsuit after an asbestos-related death
  • evidentiary challenges in these kinds of cases, and
  • the importance of the statute of limitations filing deadline.

Who Can File a Wrongful Death Claim?

In a wrongful death case, family members are mostly seeking compensation (damages) for their own losses resulting from a loved one's death. The question of who has the legal right to bring this kind of lawsuit is usually determined by state law, but eligible claimants typically include:

  • surviving spouses
  • children
  • unrelated dependents (for example, minor stepchildren)
  • registered domestic partners, and
  • parents, siblings, nieces and nephews.

Adult non-dependent stepchildren who have not been adopted usually aren't able to bring a wrongful death claim, no matter how close they were to the deceased person (the "decedent"). On the other hand, biological children who weren't adopted by someone else are usually eligible, even if they were estranged. Even if the decedent had cut children out of his or her will, those children are still usually able to bring a wrongful death claim. Learn more about who can file a wrongful death lawsuit.

Many wrongful death claims are made on behalf of the decedent's estate, and these cases can be brought regardless of whether or not the decedent had a will. If a probate court has appointed a Personal Representative (who is not necessarily a wrongful death heir), that person can bring the wrongful death claim on behalf of all the heirs. There is no obligation that any heir participate in the wrongful death lawsuit, and sometimes heirs will waive their rights in favor of another.

One practical consideration: A wrongful death lawsuit can exacerbate family tensions. If there's conflict between members of a family, it's best to be upfront about this with your attorney at the beginning of the case. Settlements cannot be distributed until all heirs have agreed on the distribution.

Making a Wrongful Death Case

An asbestos wrongful-death lawsuit can be challenging with regard to evidence, because many of the details related to asbestos exposure died with the deceased person. Family members who did not work with the decedent may not be able to describe how the exposure happened, let alone what asbestos-containing products were involved. Since the exposure likely occurred many years earlier, even a family member who knew was what happening at the time may have forgotten significant portions of the work history.

For this reason, other witnesses (such as coworkers) and written evidence (such as work diaries or union dispatch slips) are very important. Your attorney will need to spend money on interviewing people, gathering records from workplaces and employers, and otherwise investigating the exposure in order to know who the viable defendants are. If specific defendants can't be identified, the case may have to be limited to claims against the now-bankrupt suppliers of asbestos fibers and manufacturers of widely used asbestos-containing products.

Depending upon the extent of the case, some or all heirs may be asked to provide deposition or trial testimony. Even if an heir knows nothing about the decedent's asbestos exposure, such testimony is still important in establishing the extent of the loss.

Valuing the Case Includes Multiple Factors

Any kind of civil lawsuit is in part an attempt to put a monetary figure on injuries and other losses (called "damages" in legalese). It's relatively easy to determine economic damages like lost wages and lost future income, medical expenses, and the cost of replacement services. What's more difficult to place a value on is non-economic damages. In personal injury cases, this includes pain and suffering. In wrongful death claims, loss is usually measured by what the decedent contributed to the surviving heirs: companionship, advice, household support, and so on.

This means that the case of a person who died from mesothelioma and whose only heir is a child living in another state may have smaller non-economic damages than that of a person who suffered from asbestosis and is survived by a spouse and a grandchild who lived with the decedent. Other economic damages will be based upon the decedent's income and how much the heirs depended on that income.

Since asbestos settlements are often made in a package, looking at the case as a whole, these distinctions may not matter much unless the case goes to trial. If damages are awarded by a jury, the jury will need to break them down into various categories.

Learn more about damages in a wrongful death case and how much an asbestos-mesothelioma case might be worth.

Watch the Statute of Limitations

Wrongful death cases are subject to a statute of limitations (the time window in which filing a lawsuit is permitted), which varies from state to state. Usually the deadline is one or two years from the date of death. The statute may be different for asbestos-related harm than for other kinds of wrongful deaths. Whichever statute of limitations applies, if the filing deadline has passed, the right to file a lawsuit is likely lost.

In rare circumstances, a claim can be brought after the statute of limitations deadline has passed, if the heirs had no reason to know that asbestos contributed to the death. For example, if a person dies of an asbestos-related cancer, but the heirs are never told—and could not reasonably have learned on their own—that asbestos was a factor in the death, the statute of limitations time period might be calculated from the date the plaintiffs learned of the connection.

To learn more about how the statute of limitations could impact your case, and for more details about bringing an asbestos-mesothelioma lawsuit after the death of a loved one, talk to an asbestos lawyer.