If you're thinking about filing an asbestos case, one of the first things an attorney will probably ask is when you were diagnosed with an asbestos-related disease. That's because a state law called a "statute of limitations" places a firm deadline on your right to sue. While many cases are straightforward, it's not always easy to know what the applicable time period is.
One purpose of the statute of limitations is to keep people from suing over something that occurred many years ago. For asbestos cases, most states have statutory time limits of two, three, or four years. In a wrongful death asbestos case, a "survival" statute might apply, setting a different deadline altogether.
A statute of limitations is said to "run" when the time period in which you are allowed to sue begins. If you miss the applicable deadline, and no special circumstances warrant an extension, you've lost your right to file an asbestos-mesothelioma lawsuit and get compensation from the at-fault party.
Injuries resulting from asbestos exposure are very different from those arising from a car accident. If you are injured in a car crash, it’s evident at the outset what most of your injuries are and how they occurred. Mesothelioma and other asbestos-related diseases, on the other hand, are progressive, meaning they start out with no symptoms and gradually worsen. By the time symptoms appear, it is often years or even decades since the person was exposed to asbestos.
The law takes this gradual progression into account. You aren’t required to identify a specific date upon which you received your injury or to start counting from when you were first exposed to asbestos. Rather, the trigger is when your symptoms have progressed to the point that a diagnosis of asbestos-related disease can be made.
The statute of limitations "clock" generally begins to run at the time the plaintiff "knew or should have known" that their injury was caused by asbestos exposure. For most people this occurs at the time of diagnosis of asbestosis or an asbestos-related cancer.
If you have become disabled and had to quit working as a result of your asbestos-related disease, the clock might begin to run on the date you stopped working. If you are disabled as a result of some other condition—such as a back injury or non-asbestos-related disease—the clock will probably begin to run with the date of diagnosis.
In some circumstances the clock will be said to start even without a date of diagnosis, because it would have been reasonable for you to have known that asbestos exposure contributed to your disease. For example, if your union does asbestos exposure screenings, the defendants will argue that you should have known you were at risk for asbestosis or other asbestos-related diseases, and that the statutory peroid began when your symptoms became apparent.
If you have lived and worked in the same state all your life, then your state’s statute of limitations for asbestos lawsuits will apply. But if you worked in one state and retired to another, or worked in more than one state, it’s not so clear. The applicable statute might be determined by where most of your exposure occurred, or by where you lived when you were first diagnosed with an asbestos-related disease. If the statutory deadline has passed in one state but not another, your attorney might try to file a case in the state with the longer statute; of course, expect the defendants to argue that the shorter statute applies. Jurisdiction (where the case should be heard) can become a complicated legal issue that has to be decided by a judge.
Claimants sometimes develop an asbestos-related cancer years after they initially were diagnosed with asbestosis. Generally, the cancer is treated as a second injury, which means a new statute of limitations time period applies, even if the asbestosis-related deadline has passed.
Keep in mind that if you settled a lawsuit related to your asbestosis, you will probably not be able to sue the defendants you settled with. Occasionally, defendants in an asbestosis case restrict a settlement to asbestosis injuries, meaning they can be sued again if a different disease occurs, but this is fairly uncommon.
Occasionally a person develops cancer or dies as a result of asbestos exposure without knowing that such exposure was the cause of their illness or death. Often this situation arises because there is asbestos exposure that the injured person did not know about at the time of the diagnosis. If the statutory deadline has already passed, an attorney can argue that the clock should begin to run at the time of discovery of the asbestos exposure, not at the time of illness or death.
Factors such as when you first became noticeably ill, why and when you stopped working, what states you have lived or worked in, and how much you can be expected to know about asbestos as a cause of disease can all play into your right to file a lawsuit. If you have questions about the statute of limitations deadline and how it applies in your particular case, it may be time to talk with an experienced asbestos lawyer.