Filing a Mesothelioma Lawsuit

Although it is the result of what amounts to criminal acts of negligence and indifference on the part of the corporate world, a mesothelioma lawsuit falls under the legal category of torts, or personal injury law. This is actually to your advantage however, because the standard of proof is less than that of criminal cases.

Because of a long history of abuse under European and early colonial rulers, and because it was strongly believed that the decision to deprive someone of their liberty, property and even life should never be made arbitrarily or lightly, the Founders and Framers who drafted the U.S. Constitution made certain that persons accused of crimes were afforded every right, protection and opportunity to prove their innocence. Felony trials are always conducted before a jury, and any verdict must be unanimous; the accused must be found guilty “beyond a reasonable doubt.”

These standards do not apply in civil disputes. In cases involving a jury, the verdict is by majority; there only needs be a preponderance of evidence showing liability. This means that the evidence must only demonstrate that something is more likely to be true than not. It is why Orrin J. Simpson was found not guilty in criminal court of murdering his ex-wife and her companion in 1994, yet was held liable for their deaths in a civil suit (Simpson v. Goldman et. al.).

The procedure for filing a mesothelioma lawsuit is the same as that of any other civil action. Once you have a solid diagnosis by a qualified oncologist, you may proceed on your own; however, it is highly advisable to contact a lawyer who specializes in or has had experience and success in mesothelioma litigation.

Step One

Before you consider filing a lawsuit, it is important to be properly diagnosed by a medical professional, and even seek out a second opinion. Avoid “discount screenings” that are held in hotel suites and parking lots; these are scams perpetrated by shysters who should rightfully be disbarred, and the “evidence” from such a screening is likely to hurt your case (1).

It also makes a difference as to whether you have mesothelioma or some other type of asbestos-related disease. Generally, the courts have been more generous to mesothelioma victims than plaintiffs with other, non-malignant asbestos diseases; awards are made in 75% of all mesothelioma cases going to trial. Only about half of those involving asbestosis are found in favor of the plaintiff, however (2).

In any event, your diagnosis should be made by your family doctor and an experienced oncologist. It should include x-rays, a CAT scan and a biopsy which is examined by a pathologist. This is the solid documentation of your illness you’ll need to have available for examination by the judge and jury.

Step Two

It is important to understand that once you are diagnosed, your right to file a claim is subject to subject to a statute of limitations. Depending on your state of residence, this can be as little as one year or as long as three. In any event, the sooner you file your complaint after your diagnosis, the greater your chances are of recovering your damages.

Although anyone who can write reasonably well and pay the filing fee (between $50 - $250, depending on the state or jurisdiction) can file a civil complaint, in a mesothelioma action, it is better to first discuss the case with an attorney. A good mesothelioma lawyer will be thoroughly familiar with the specific laws relating to your illness, and ideally will have successfully represented many such clients.

When you find an attorney willing to represent you in whom you have trust and confidence, s/he will need several pieces of information and documents in order to successfully prepare and file your complaint:

Your occupation and place of employment

Names and contact information of co-workers

Specific asbestos products you used or saw in your employment

How many years you worked at this job

Signed releases allowing your attorney access to any pertinent confidential materials, such as medical records, employment and Social Security documents, etc. (3)

In addition, if you are in an advanced stage, your attorney will need to have a copy of any will you have made, as well as the names and addresses of all beneficiaries.

Once these are in order, the attorney will file the formal complaint with the court clerk on your behalf. In essence, this document contains five pieces of information:

A declaration of your illness

Where asbestos exposure allegedly took place

Name and location of the company or companies responsible

The type of illness from which you are suffering

The remedy (resolution) you are asking the court to provide (4)

Once this paperwork has been filed with the court clerk, a copy is hand delivered to the defendant by an officer of the court known as a process server. The defendant(s) usually have up to 30 days in which to respond. They will either deny all liability, or their lawyers will file a motion to dismiss your case (5).  If your attorney has done his/her job properly, the defense will be unable to find grounds for dismissal.

Step Three

Before the actual trial begins, there will be a long and arduous process of discovery, the period during which evidence is gathered and examined, witnesses are scheduled and interviewed, depositions (sworn statements) are taken, and more.

During the discovery process, you will be interviewed by attorneys for the defense. Expect that they will use all their expertise to demonstrate that your claim has no basis. They will examine your entire life and all your medical records in an attempt to show that your illness was not their fault, or that you were aware of it earlier than you claim (therefore arguing that the statute of limitations had expired). They may even attempt to intimidate you (6).

In the meantime, both sides may try to reach an out-of-court settlement. If this does not occur before the trial date, court action will proceed, and may last as long as two years.

While this is a stressful process at a time when you are least able to deal with it, remember that the law and precedent are on your side.

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