Overview of the Legal Process for a Mesothelioma Lawsuit

As a mesothelioma victim, your chances to recover expenses, lost income and compensation for pain and suffering are quite good; they are actually better than those who are victims of other asbestos-related illnesses (1). 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.

Regardless of where current legal opinion stands on the subject of punishing corporate malfeasance, you cannot be denied the right to sue for, and receive actual economic and non-economic damages.

However, as will all legal matters, there are certain steps that must be taken, and preparations made. Due diligence and careful attention to these steps will go a long way in making sure you have the strongest possible case.

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” are nothing more than an attempt by unethical individuals in the legal profession to “harvest” clients in order to make fast money. The courts have determined 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 usually refuse to provide detailed testimony (2).

It is vitally important that you are diagnosed by an experienced oncologist. Your family physician will refer you to one if s/he feels there is reason for concern. Such a diagnosis should include x-rays and a CAT scan, as well as a biopsy. At least one, and preferably two other physicians should concur with the diagnosis. In short, there should be no room for doubt.

On To the Legal Part

Mesothelioma litigation falls under the category of torts, or personal injury law. Therefore, you will 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. State governments usually maintain a website where such information is available; you can also call the attorney general’s office in your state. In any event, statutes of limitations are from one to three years from the time of diagnosis, so do not delay.

While it may seem intimidating, filing a complaint in civil court is a fairly simple and straightforward process. All the court needs to know is 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 (3).

Nonetheless, it is to your advantage to discuss your case with an attorney experienced in such matters beforehand. A lawyer is trained in the use of precise language that will 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 can take one to three months, and are often used by the defense to delay your case in hopes that you not survive. A good mesothelioma attorney will know how to phrase the complaint in such a way that there can be no confusion (4).

There is no shortage of lawyers in the field of mesothelioma litigation who can represent you effectively, competently and ethically. You may have trouble deciding which one should represent your case. In general, a good mesothelioma lawyer is one who:

1. has many years experience in asbestos law and litigation
2. has successfully won judgments in 75% or more of his/her cases
3. has excellent written and verbal communication skills
4. will take time to answer all your questions and concerns
5. will take your case personally, on a contingency basis
6. is spoken well of by others and has a high AV rating
7. is someone with whom you feel comfortable (5)

You can find a law firm’s AV rating at http://www.martin-hubble.com.

The Process

Mesothelioma litigation takes courage and endurance. Although law and precedent are on your side and your chances of winning are good, 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 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 move to settle the case. Normally, the defendant will make 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” (6).  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.

If a settlement is not reached, the case goes to trial (although a settlement may still be possible at any point prior to the judge’s final ruling). 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.

More commonly, a civil case is heard before a judge; no jury is present unless one or both sides request it. Witnesses are called and questioned under oath by both sides, evidence is presented, and arguments made. At the end of this 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.

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