Mesothelioma Legal Options

Before the mid-twentieth century, mesothelioma was exceptionally rare. A type of cancer that attacks the mesothelium (membrane that lines the lungs, inner chest wall and other internal organs), 19th century doctors would go through their entire careers without ever seeing a case.

Today, because of what is virtually – if not legally – a clear case of depraved indifference to human life on the part of wealthy corporate interests, this disease has afflicted far too many people. Mesothelioma is the least common of the major asbestos-related diseases; asbestosis and lung cancer occurs with greater frequency (1). Nonetheless, it is still the cause of action for hundreds of thousands of lawsuits.

Had the federal government been doing its job to investigate and regulate the asbestos industry, and had U.S. workers had the same single-payer national health care that citizens in the rest of the industrialized world enjoy as a right, the explosion of asbestos-related litigation would not be happening today. These are facts worth mentioning when contacting your member of Congress the next time s/he starts talking about “tort reform” and limiting the rights of victims to sue in order to protect the corporations who finance their elections.

In the meantime, mesothelioma legal options available to you include the right to sue for damages and recovery of your medical expenses and lost wages. If you are the family member of a mesothelioma victim who has died, you have the right to file a wrongful death suit.

Getting Started

Once you are diagnosed by a qualified oncologist, it is important to file a claim as soon as possible. The reason is because of the statute of limitations; the state laws give you from one to three years before you must start legal action in an asbestos case. Failure to do so within the specified time frame will result in forfeiture of your rights (2).

You have the legal right to file a complaint on your own without an attorney, but this is not advisable. Lawyers are trained in legal analysis of a wide range of issues as well as the use of language that will “frame” your issue in the clearest and most effective manner. A complaint that is not filled out properly or contains inaccurate information will cause delays, and in some states and under certain conditions may result in dismissal. In addition, most jurisdictions require a filing fee, which can be as much as $200. If an attorney files on your behalf, s/he may advance this fee to you (include it in their own bill, which in most asbestos cases, is paid a percentage of the award).

That said, a complaint is really nothing more than the answers to five questions:

  1. What happened to you?
  2. Where did it happen, or who was responsible?
  3. When did this occur?
  4. What is the nature of your injury or loss?
  5. What remedy (compensation) are you seeking? (3)

Just be certain this information is complete and accurate to the best of your knowledge.

Retaining Counsel

There’s an old expression: “The lawyer who represents himself has a fool for a client.”

Of course, there is no legal reason why you need to hire a lawyer; every citizen and legal resident of the U.S. has the right to represent themselves in a court of law. However, understand that the defendant – the asbestos industry – has virtually inexhaustible financial and legal resources, which they will use against you in every possible way.

It may be true that David was able to slay Goliath with nothing more than a sling and a rock – but David wasn’t an asbestos victim going up against a multi-billion dollar industry in a court of law.

The other element working against you is the pro-corporate bias of today’s legislative and judicial culture. Corporations contribute to political campaigns; many legislators today are not statesmen, but former corporate businessmen looking out for their own interests. The current Administration is made up of former oil and defense industry executives, and several judicial appointments have been filled by corporate lawyers.

In short, asbestos victims face an uphill battle.

The good news is that asbestos litigation is a “mature” tort (4). “Torts” refer to personal injury cases; describing it in legal terms as “mature” means that lawyers have over thirty years of case law and legal precedent on which to draw. In addition, massive amounts of evidence against these corporations has been collected over this time; several law firms now specializing in asbestos litigation have built and continue to maintain massive databases of such evidence and supporting information. Although it is hard and difficult fight, with strong evidence to support the claim, a jury is far more likely to find in favor of the plaintiff in a mesothelioma case.

For these reasons, you’ll want to find a lawyer from a firm that specializes – and more importantly, has experience and a record of success – in asbestos litigation. Such a lawyer will usually take an asbestos case on contingency, meaning that you will not have to pay legal bills up front; such fees and expenses are taken as a percentage of the monetary award. Because this means that the lawyer and the firm receive nothing if the judge finds for the defendant, the fact that a lawyer is willing to agree to a contingency arrangement is an excellent indication that you have a strong case.

If your case is strong enough, the opposition may agree to an out-of-court settlement. This actually happens on a fairly frequent basis; while an out-of-court settlement is usually smaller than one than you would receive from a jury, but it spares all parties the time and expense of a trial.

If The Judge Rules in Favor of the Defendant

If your lawyer has built a strong case with irrefutable evidence, it is highly unlikely that even the most conservative, pro-corporate judge will rule against the plaintiff in an asbestos case. Nonetheless, it is known to happen for various reasons. If this happens, you do have the right to appeal to a higher court. Likewise, if the judge rules in your favor, an appeal by the defendant is virtually a given, particularly if the jury awards a sizable amount in damages.

'Mesothelioma Legal Options' Resources:

Notes

  1. Martin, Dr. Lawrence. “Asbestos Lung Disease” (2004).
  2. Bowker, Michael. Fatal Deception, pp. 162-163
  3. Minnesota Judicial Department. “Filing a Summons and Complaint”
  4. Spier, Kathryn. “Settlement With Multiple Plaintiffs: The Role of Insolvency.”

Sources

  1. Bowker, Michael. Fatal Deception. (New York: Touchstone, 2003)
  2. Martin, Dr. Lawrence. “Asbestos Lung Disease: A Primer” (Online publication). Updated November 2004. 
    Accessed: 25 July, 2007.
  3. Minnesota Judicial Branch. “Filing a Summons and Complaint” (Online article).
    Accessed: 25 July, 2007.
  4. Spier, Kathryn. “Settlement With Multiple Plaintiffs: The Role of Insolvency.” The Journal of Law, Economics & Organization, vol. 18 no. 2, 2002.