If you've been exposed to asbestos and been diagnosed with mesothelioma, you may be wondering if you can recover compensation via a lawsuit or legal claim. In this article, we'll discuss:
This is the crucial threshold question to consider. But in general, there's a good chance you have a valid lawsuit on your hands (and a chance of receiving compensation ("damages") through a settlement or in court if you:
You might file a lawsuit or claim against a number of potential defendants or sources, including:
State laws called statutes of limitations usually give people one to five years to file a lawsuit, typically starting from the diagnosis or discovery of mesothelioma. But it's important to act promptly, because in a few states—including California, Louisiana, and Tennessee—the statue of limitations is only one year from diagnosis or discovery.
If a mesothelioma victim has already died, their spouse and other heirs typically have one to three years from the date of death to file a wrongful death action. We'll discuss these kinds of cases a little later on.
If your asbestos exposure occurred while working jobs in more than one state, it's not always clear which state's statute of limitations covers your lawsuit. And if you developed mesothelioma or another type of cancer because of your use of a talc product like baby powder, the applicable deadline could be one that applies to product liability lawsuits. Talk to a lawyer for details on the statute of limitations that might apply to your potential case.
(Note that mesothelioma victims can't file or join in class action lawsuits because each person's medical history and prognosis is different, so mesothelioma cases must be filed individually.)
Get more details on the statute of limitations and asbestos lawsuits.
Most asbestos cases are settled before they ever get to a jury (meaning the parties agree, outside of the court process, on how much the mesothelioma claimant will receive). If you've gathered all the facts about your medical condition and employment history, and your lawyer runs an efficient office, and there is an easily identifiable payment source—such as an insurance company or an asbestos victims' trust fund—you could get your money less than a year from the date your lawsuit or claim is filed.
In other situations, where the amount of money damages hinges on going to trial (or at least threatening to do so), it can take two years or more. Fortunately, the court rules in many states recognize that mesothelioma victims have a short life expectancy, and as a result, they fast track their lawsuits. Learn more about the timeline of an asbestos case.
The dollar amount you are likely to receive as compensation for developing an asbestos-related illness is hard to estimate. Some cases result in settlements or jury awards in the millions, while other claims settle for comparatively little.
Over the years, many companies that manufactured or installed asbestos have closed down or gone bankrupt, which in turn has resulted in courts' requiring that large funds be set aside to compensate future victims. Some of these funds are still large enough to pay out all claims at full value, but others have been depleted to the point that far less is available, so settlement amounts must be rationed.
In addition to the size of the asbestos victims' compensation fund available for payment, each victim's particular mesothelioma illness and how it has affected their life is important to valuing a potential settlement or jury verdict. The dollar amount of wages lost due to the illness, the cost of medical expenses, and, usually most important, the degree of the claimant's "pain and suffering" are all key factors in putting a dollar value on a particular case.
A third factor in estimating how much you'll recover is time. When cases are settled relatively quickly, the amount recovered tends to be significantly less than it might be if your lawyer waited to present your case at a court trial. But preparing and conducting a jury trial can take several years, whereas settlements can often be arranged in a year or less. For this reason, many seriously ill plaintiffs prefer a relatively quick settlement, and this is especially true when they learn that some lawyers charge substantially more when a case goes to trial, under their contingency fee agreement (more on this later).
The most common types of mesothelioma usually qualify for expedited disability benefits from the Social Security Administration. Learn more about getting disability for cancers like mesothelioma.
Expert witnesses are a necessary part of many personal injury cases in which legal and medical issues become complex, and asbestos lawsuits almost always fit that bill.
In an asbestos case, expert medical testimony is essential because it's what proves the plaintiff actually has mesothelioma or some other asbestos-related disease.
Expert medical testimony in asbestos cases is often provided by a radiologist, a pathologist, or both. A radiologist will testify that X-rays or CT scans show scarring in the lungs, which is characteristic of exposure to asbestos. A pathologist will testify as to the number of asbestos fibers located in a tissue sample, or the difference between types of cancer cells. A pulmonologist or oncologist might also be called to testify.
Proving that you have an asbestos disease is only half the battle. In order to recover for your losses, you also need to prove the defendant (or the company linked with the trust fund) is responsible for exposing you to asbestos. This usually requires the testimony of an industrial hygienist or a certified asbestos professional who can testify that, for example:
Learn more about on-the-job exposure to asbestos.
Most asbestos plaintiffs have suffered extensive monetary loss. If your illness caused you to retire early, an economist can estimate how much potential income you lost. An economist can also establish how much money you will lose from a premature death or from hiring people to do chores you no longer can do yourself.
Yes. But 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 didn't work with the decedent might 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 what was 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.
Some or all heirs may be asked to provide deposition or trial testimony in a wrongful death lawsuit over asbestos illness. Even if an heir knows nothing about the decedent's asbestos exposure, this kind of testimony is still important in establishing the extent of the loss.
Learn more about damages in a wrongful death case.
Most mesothelioma cases are handled on a contingency fee arrangement. This means your lawyer charges you no fees up front, but instead receives a percentage of the eventual settlement or money damages you receive as the result of a court judgment, plus any expenses (for things like depositions, copying, and postage) that you agree to pay as part of a written fee agreement.
A typical contingency fee is 25% to 40% of money damages you recover. The exact amount depends on several factors, including whether a victims' trust fund places a cap on contingency fees (some allow no more than 25%), whether you settle out of court or go to trial, how much the lawyer wants your case (if the attorney believes your case is certain to win a big settlement or court judgment, you are in a much better bargaining position than if you are likely to receive a lower amount), and how hard you bargain before signing a fee agreement.
Learn more about how to hire a mesothelioma or asbestos lawyer.