What documents and other items you need to file a Mesothelioma lawsuit

Any court action requires a fair amount of paperwork, whether it is a high-profile criminal case or an action in small claims court. Much of this paperwork must be in order even before filing a complaint.

If you have been diagnosed with mesothelioma, you should understand that (A) public record, legal precedent and case law favors the plaintiff in such cases, and (B) mesothelioma court actions are long, drawn-out and stressful procedures that may take two to three years to resolve.

You can also count on the defense to do everything it possibly can in order to prevail. There is no question of liability; since 1977, it has been public record that corporations (as well as the federal government) have known of the hazards of asbestos, yet deliberately suppressed the information so as to externalize costs while internalizing profits (this basically means they made their fortunes on the death and suffering of their workers). With the discovery of the “Sumner Simpson Papers” thirty years ago, the legal profession has had the asbestos industry “dead to rights.” (1)

Mesothelioma cases have a significantly higher success rate than those involving non-malignant asbestos-related diseases such as asbestosis. In a 2002 RAND institute study, 75% of all mesothelioma cases that went to trial ending in a ruling were resolved in favor or the plaintiff (2). A fair number are settled out-of-court, either before the trial begins, or prior to the trial’s conclusion.

Although this is good news for mesothelioma victims, it is important to make sure that prior to starting any legal action, any and all documentation is in order.   

It Starts With a Solid Diagnosis

Clear medical records will be part of the court record. The defense will make every attempt to show that your illness was not the fault of their client. They will put your medical and insurance records under the proverbial microscope to see if you had any possible conditions or lifestyle issues that might have led to your mesothelioma.

Herein lies the reason that mesothelioma victims are successful in recovering damages. While cancers in general can be caused by any number of things, mesothelioma has only one known cause – asbestos exposure (3).  Therefore, the defense will make every attempt to show that your illness isn’t really mesothelioma.

This is why it is vitally important to get a diagnosis from a qualified, experienced oncologist, or cancer specialist. The diagnosis should include not only an x-ray (cases based on nothing more than “discount x-ray screenings” are frequently dismissed (4)), but also a CAT scan, and a pathologist’s report based on a biopsy (tissue sample).

Prior to seeing an oncologist, you will want to have had a full physical by your primary health-care provider. If you have symptoms or concerns, s/he will refer you to an oncologist.

All of the medical records should establish beyond a doubt that you (A) had no knowledge of your condition prior to the diagnosis, and (B) that the diagnosis has been confirmed by medical authorities as being mesothelioma.

On To Legal Matters

Once your diagnosis is in place, it is important to find qualified legal counsel as soon as possible. The reason is that all states have a statute of limitations – a time limit – on filing an asbestos lawsuit. This statute can be anywhere from one to three years from the date of your diagnosis. In addition, mesothelioma is an aggressive disease; although some victims have managed to live with the disease for as long as ten years (5), most succumb within three to five years.

Once you have found a lawyer knowledgeable about mesothelioma and asbestos issues and in whom you have confidence, s/he will need information with which to file the formal complaint. A copy of the formal complaint will be hand-delivered to each named defendant by a process server, who is an officer of the court.

Normally, the defendant’s corporate legal department will file a motion with the court to dismiss the case; they may claim that the complaint was not filled out properly, that the statute of limitations has expired, or that the grounds for action are either not clear or else have no validity. An asbestos lawyer is trained to frame the complaint so as to leave as little room for argument as possible. In order to succeed, s/he will need documentation regarding your job title, names and contact information of any co-workers or colleagues, the specific asbestos product(s) with which you came in contact, how many years you were at the job in question, and signed releases that will allow your attorney to access confidential materials such as medical records and insurance claims as well as employment information (6).

Once the named defendants receive the complaint, they have thirty days in which to respond, or risk default judgment.

Preparing For Trial

The discovery phase is the period during which both sides “arm for battle,” metaphorically speaking. Evidence is gathered, examined, analyzed and organized; subpoenas are issued to witnesses; experts in medicine, chemistry, and industrial sciences are hired to offer testimony; sworn statements known as depositions are taken and filed.

In the interests of justice, any and all evidence and witnesses are available to both the plaintiff and the defendant for examination. In addition, you will most likely be subject to an interrogatory by the opposing counsel. In this procedure, the defense will do everything possible to discredit you; it is likely to be stressful and unpleasant. However, you will not be alone; your own attorney will make certain that you are prepared ahead of time, and will be there with you at the interrogatory.

'What documents and other items you need to file a Mesothelioma lawsuit' Resources:

Notes

  1. Bowker, Michael. Fatal Deception, pp. 165-166
  2. Carrol, Stephen J. et. al. “Asbestos Litigation Costs and Compensation,” pp. 58 -59
  3. Bowker,  op. cit., pp. 114-115
  4. Spier, Kathryn. “Settlement With Multiple Plaintiffs: The Role of Insolvency.”
  5. Kraus, Paul. Surviving Mesothelioma and Other Cancers: A Patient’s Guide (2005)
  6. Mesothelioma Information. “Mesothelioma Lawyer – Your Legal Rights” (2007).

Sources

  1. Bowker, Michael. Fatal Deception. (New York: Touchstone, 2003)
  2. Carrol, Stephen J., et. al. “Asbestos Litigation Costs and Compensation:
    An Interim Report.” (Santa Monica: RAND Institute for Civil Justice, 2002)
  3. Kraus, Paul. Surviving Mesothelioma and Other Cancers: A Patient’s Guide (Raleigh: Cancer Monthly, 2005)
  4. Mesothelioma Information. “Mesothelioma Lawyer – Your Legal Rights”  (Website).
    Accessed: 26 July 2007.
  5. Spier, Kathryn. “Settlement With Multiple Plaintiffs: The Role of Insolvency.” The Journal of Law, Economics & Organization, vol. 18 no. 2, 2002.