As a mesothelioma victim, your chances to recover expenses, lost income and compensation for pain and suffering are actually better than those who are victims of other asbestos-related illnesses. In addition, the jury may add punitive damages on top of your award, though such damages are frequently reduced by remittitur (judicial decree) or appeal, and in some cases are even overturned. With all mesothelioma lawsuits, each case is different and results vary greatly.
Regardless of where current legal opinion stands on the subject of punishing corporate malfeasance by awarding punitive damages, you may still have the right to sue for, and receive actual economic and non-economic damages.
However, as with all legal matters, there are certain steps that must be taken, and preparations made. Due diligence and careful preparation canl go a long way in making sure you have the strongest possible case for a mesothlioma lawsuit.
First Things First: Get a Professional Medical Diagnosis
An eye-catching advertisement in the newspaper literally shouts from the page: "You May Have MILLION-DOLLAR Lungs!" Underneath this text is the following: "If you have worked in any of the following industries, you've been exposed to asbestos - the deadliest cancer-causing substance in the world!" The ad goes on to list the industries, and provides a phone number where you can make an appointment for a low-cost screening.
These "screenings", although attractive because they are free or at little cost to you, may not provide the medical evidence necessary to support your claim. The courts have determined in some instances that such x-rays do not constitute valid evidence in asbestos cases. This is due in part to the fact that the "doctors" in these situations may refuse to provide detailed testimony.
It is vitally important that you have received your mesothelioma diagnosis by an experienced physician, often an oncologist or pathologistt. Your family physician may refer you to one if s/he feels there is reason for concern. Such a diagnosis should include a biopsy and may also contain x-rays and a CAT scan. If at least one, and preferably two other physicians concur with the diagnosis it may be helpful to remove any room for doubt.
The Mesothelioma Lawsuit
Mesothelioma litigation falls under the category of torts, or personal injury law. Therefore, you may file a civil complaint. It is important to do this as soon as possible after your diagnosis, because all states have a statute of limitations, or time limit within which you must file such a complaint. Otherwise, you will lose your right to sue. In any event, statutes of limitations vary from state to state so do not delay.
While it may seem intimidating, filing a complaint in civil court is a fairly simple and straightforward process. Among other things the court needs to know if you suffered an injury (illness), a loss, or both; where the injury/loss occurred, and who was responsible; when the injury or loss occurred; what type of injury or loss it was; and what remedy (compensation) are you asking the court to provide.
Nonetheless, it is to your advantage to discuss your case with an experienced mesothelioma lawyer who is familiar with such matters beforehand. A lawyer is trained in the use of precise language to try to make it clear to the defendant why they are being sued and on what legal basis. Motions to dismiss are frequently based on claims that the suit fails to make clear the cause of action, or that there are no legal grounds for the suit. Dealing with such motions takes time and can delay your case. A mesothelioma attorney may know how to phrase the complaint in such a way that there can be no confusion.
Lawyers in the field of mesothelioma litigation should be able to represent you effectively, competently and ethically. In general, you may want to look for a mesothelioma lawyer who:
- Has many years experience in mesotheliom lawsuits and litigation
- Has successfully won judgments in a large number of his/her cases
- Has excellent written and verbal communication skills
- Will take time to answer all your questions and concerns
- Will take your case personally, on a contingency basis or who has a network of attorneys whos can assist with matters in multiple states
- Is spoken well of by others
- Is someone with whom you feel comfortable
Mesothelioma litigation takes courage and endurance. Although law and precedent may be on your side and your chances of winning are always uncertain, it will be a long, uphill struggle against a powerful, well-funded adversary. Preparations are necessary, and may take several months.
The preparation stage of the legal process for a malignant mesothelioma lawsuit is called discovery. This is the process in which evidence is gathered, analyzed and organized. In the meantime, attorneys for the defendant - the corporation(s) against whom you are taking action - are doing the same thing. Each side has the legal right to examine evidence gathered by the other. This evidence can include any and all relevant documents, business and medical records, depositions (written, sworn testimony), photographs, samples, and anything else each side's counsel feels is relevant to their client's case. In the meantime, a trial date is set and placed on the docket (the schedule).
At anytime during the discovery process, either side may try to settle or resolve the case, by offering you a mesothelioma settlement. In this instance, the defendant maymake an offer, which may be substantially less than what you as the plaintiff are seeking. Your attorney can advise whether or not you should take such an offer, but ultimately, it will be your decision. On one hand, you will not receive as much as you might have been awarded by a judge or jury, and usually, the defendant will stipulate that such an offer does not constitute an acknowledgement of liability. On the other hand, your lawyer may recommend following the legal doctrine of "ad praesens ova cras pullis sunt meloria." In accepting a settlement, you will forego the trouble and expense of a lengthy trial, and when legal fees and expenses are taken into consideration, you may wind up just as well off. Keep in mind, you are not entitled to a mesothelioma settlement, but if you are offered one and accept, it will eliminate the uncertainty of trial where there are no guarantees.
If both parties cannot reach an agreement to resolve the matter, the case goes to trial (although a settlement may still be possible at any point ). If it is to be a jury trial, the lawyers for both sides will need to select a jury. If you have ever been called for jury duty, you understand the process; members of a large pool are interviewed and either accepted or rejected by either side based on that interview.
At trial witnesses are called and questioned under oath by both sides, evidence is presented, and arguments made. At the end of this mesothelioma lawsuit process, the jury or judge will decide in favor of one side or the other, depending on which side's evidence and testimony was the most convincing and how well the attorneys could support their arguments with law and legal precedent.