Mesothelioma is a rare form of cancer which develops in cells of the mesothelium, the protective lining covering many internal organs. The cancer is almost always malignant, and very difficult to treat.
There are about 2,000 cases of mesothelioma cancer diagnosed each year in the United States, mostly related to on-the-job exposure to asbestos.
Mesothelioma claims are most frequently filed by workers or their families.
What is Asbestos?
Asbestos is a naturally occurring substance used by various industries, including automotive, shipbuilding, and construction. It is a friable mineral, meaning it’s easily reduced to fine particles that can be inhaled by workers and others close by.
These carcinogenic particles embed themselves in tissues surrounding vital organs. Our bodies can’t flush out these particles, and the longer they remain, the greater the chance they will cause malignant mesothelioma cancer. In many cases, cancer doesn’t develop until decades after asbestos exposure first occurs.
Diagnosing mesothelioma is challenging for doctors because it often presents with symptoms common to other diseases. There is no known cure for mesothelioma, although surgery and chemotherapy can help improve a victim’s quality of life in the short term.
There are four primary types of mesothelioma claims:
- Product liability – can be filed against a company that manufactured a product with asbestos.
- Medical malpractice – can be filed against a doctor or hospital if they misdiagnose, or delay a diagnosis of mesothelioma.
- Workers compensation – can be filed against an employer if the worker was exposed to asbestos while on the job.
- Wrongful death – can be filed against the manufacturer or retailer of a product containing asbestos, a doctor or hospital for misdiagnosing mesothelioma, or even an employer if their actions constituted gross negligence (or a wonton disregard for a deceased worker’s safety).
Filing a Claim or Lawsuit
To have any chance of success in a mesothelioma claim or lawsuit, you will need the counsel of an experienced personal injury attorney. It’s impossible to handle a case like this on your own.
These cases are very expensive, often costing hundreds of thousands of dollars to pursue. To succeed, your attorney will need to take hundreds of depositions, and subpoena thousands of records. There will also be multiple court hearings, additional pretrial discovery, and more.
There are specified time periods, called statutes of limitations, during which a mesothelioma claim must be settled or a lawsuit filed. Each state has its own limitations period. If you miss it, you will be forever barred from recovering compensation for your injuries.
In a successful injury claim, you may be entitled to compensation for your damages, including payment for all your medical bills, out-of-pocket expenses, all your lost wages, and an amount for your pain and suffering. In wrongful death cases, the victim’s family may be entitled to similar compensation.
Let’s review some legal actions you can take if diagnosed with mesothelioma:
The basis of a claim against a product containing asbestos, is that the manufacturers knew, or should have known the asbestos could cause harm. And, with actual knowledge of the danger, the manufacturer took inadequate steps to stop manufacturing the product, recall it from the market, or indicate the type of protective gear which must be worn by users.
In this context, a medical malpractice claim is based on a doctor or hospital either failing to diagnose or misdiagnosing mesothelioma, and failing to timely treat the illness. The victim must prove that these diagnostic mistakes either caused or aggravated the cancer.
A victim of an on-the-job injury has a right to have all his medical bills, out-of-pocket expenses, and about two thirds of his lost wages compensated. Pain and suffering compensation is not included in workers’ comp benefits. If an employee can’t work and is permanently disabled, workers’ comp will pay out a lump sum settlement.
The same applies if the worker dies as a result of job-acquired mesothelioma cancer. In this case, the family of the deceased worker is entitled to the lump sum settlement paid by workers’ comp.
Wrongful death claims arise when an individual is exposed to asbestos, contracts mesothelioma, and dies. Wrongful death claims can also be product liability and medical malpractice claims. The court determines who will receive the monetary award, usually a surviving spouse or close family members.
Some products are still manufactured today that legally contain asbestos. These include brake pads, flooring materials, and chemical pipes. A victim of mesothelioma may be barred from filing an injury claim if the manufacturer, retailer, or employer makes clear that asbestos is present in a product, and mandates specific safety measures to follow when using it.
When someone ignores the safety notifications, and handles the product anyway, he or she may be prevented from filing a mesothelioma claim.
A good example is when a worker handling asbestos fails to follow the manufacturer’s clear notification to wear protective clothing and a respirator, and later contracts mesothelioma due to inhalation. The worker’s own contributory negligence was the reason for their illness, not the negligence of the manufacturer.
A class action lawsuit is when a group of people, through one or more attorneys, file a lawsuit against one or more defendants on behalf of a group of “similarly situated” victims.
State and federal courts have their own procedural rules governing mesothelioma class action lawsuits. The court will review the petition, and if the legal requirements are met, they will certify the lawsuit as a legitimate class action.
You may have the right to “opt in” to a class action suit against the manufacturer, construction company, or other company responsible for your mesothelioma. If you opt in, you won’t have to pay any legal fees. All costs are paid in advance by the attorneys representing you and the other members of the class.
When your class action is settled or won at trail, the attorneys will be paid a percentage of the total amount, and the balance will be distributed to you and the other victims.
Second-hand Asbestos Exposure
In this case, a woman who worked at a dress factory was exposed to asbestos and tracked the fibers home on her clothes, exposing her sister. Both women eventually developed mesothelioma.
Real life case examples:
Joining Multiple Plaintiffs Into One Trial
In this case, twelve plaintiffs allege their exposure to asbestos over prolonged periods of time resulted in serious bodily injury and death. The defendant company brought several arguments alleging their innocence.
Failure to Notify Insurance Company of Settlement
The surviving spouse of someone who died from mesothelioma cancer will often seek compensation for the wrongful death. In this case, the wife of a deceased man is appealing the denial of his workers’ compensation benefits.
Consolidating Multiple Cases
In this case, each plaintiff previously filed a separate lawsuit against the same defendant, and now they want to consolidate their cases. In their respective lawsuits, each plaintiff alleged they contracted mesothelioma while working for the defendant.
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