Mesothelioma & Asbestos Claims & Lawsuits After Death
For those who have been exposed to asbestos, developed mesothelioma and then died, their loved ones have a right to make a legal claim. It is not uncommon for someone to start a lawsuit but to pass away before a settlement or verdict has been reached. In such cases, their loved ones would be the ones to take on the case on their behalf. Equally, families should be able to file a wrongful death lawsuit even if their deceased loved had not yet filed a case with regards to asbestos exposure.
However, it is vital that a mesothelioma wrongful death case is filed as soon as possible. While statutes of limitations vary, it is usually required that a suit is filed within two years of them knowing that the death of their loved one was as a result of asbestos exposure. Each state has its own laws and statutes in place, however, which you will need to investigate.
The Statute of Limitations
Asbestos cases are highly complex. One of the main reasons for this is that the latency period of asbestos-related illnesses, such as mesothelioma, is incredibly long, which on the average is longer than 40 years. Usually, a statute of limitations on product liability and wrongful death claims starts on the day of exposure to the product. Because of the latency period, however, this is not applicable to asbestos cases. Furthermore, since litigation didn’t start until the end of the 1960s, special provisions have had to be made.
A statute of limitations decrees how long claimants have before they can no longer file a Mesothelioma cancer lawsuit. Each state has its own statutes, and each type of claim has a different statute. The type of claim, in fact, is usually the more important thing that determines how long the statute is. For those who exceed that statute, their claims will be barred.
Why Statutes of Limitations Are Difficult to Apply to Asbestos Claims
In most legal cases, applying a statute of limitations is a very straightforward affair. It is a form of personal injury claim, and in most other such cases, the statute clock starts ticking as soon as the injury is sustained. With asbestos, however, this is impossible due to that long latency period. Furthermore, asbestos-related illnesses are generally caused by prolonged and heavy exposure to asbestos, and not to a single event that can be traced back.
Then, there is the fact that developing the illness takes a very long time, and having it diagnosed can take even longer. As such, if any regular product liability or personal injury statute of limitations would be applied to such cases, they would be barred long before they even started to develop symptoms. Luckily, the legal system across all states understands this, and exceptions are therefore made for asbestos claims, including after death.
The Asbestos ‘Discovery Rule’
In regular personal injury cases, the statute of limitations clock starts to tick from the moment of injury. However, a landmark asbestos case happened in 1973, which was the Borel v. Fibreboard Paper Prods. Corp., in which it was determined that the ‘discovery rule’ could not be applied to asbestos cases.
In this case, Mr. Borel was exposed to asbestos between 1936 and 1969, the asbestos coming from various products from different manufacturers. He underwent a lung biopsy in 1969 and was diagnosed to have asbestosis. He sued some of the manufacturers whose products he had come into contact with, while simultaneously becoming increasingly ill. By 1970, he had one lung removed. The defendants in the case claimed that the statute of limitations in the state of Texas, where it was filed, was two years and that the case should therefore be barred, citing that Mr. Borel started to become ill at the time of injury, which was in 1939. The U.S. Court of Appeals, fortunately, did recognize that applying the discovery rule to an asbestos case was unfair. As a result, it was agreed that, in asbestos cases, the statute of limitations starts to apply once ‘the effects of such exposure manifest themselves’.
Borel’s case was a landmark case. It was the first time in which manufacturers were considered liable for the injuries sustained as a result of asbestos exposure. Secondly, it changed the rules in terms of the discovery rule specifically to asbestos cases. However, this does not mean that there is no statute of limitations on asbestos cases. Usually, the statute is between 12 and 24 months from the date of diagnosis of an asbestos-related illness. While families can sue on behalf of their dead relatives, the same statute of limitations applies to them. The added difficulty is that some states, in these cases, set a statute of limitations of one to two years from diagnosis, whereas others set it on one to two years of death. It is vital, therefore, that you seek legal advice as soon as possible in order to determine whether you have a case to make in your state.
What to Expect from a Mesothelioma Death Settlement
A lot of people who consider filing a wrongful death case in a mesothelioma situation wonder whether it will be worth their while. There have been settlements that have reached into millions of dollars. However, estimating the amount that the claimants will be awarded is almost impossible to do. The judge will take into consideration the diagnosis, the medical history, the claim that has been filed, whether or not they are smokers, which companies they have sued, whether there is proof of negligence, and more.
Almost all mesothelioma death cases are settled out of court. If they do go to trial, the awards can be quite significant. Settlements, however, are usually private and closed, meaning that others will not be able to find how much was actually paid out. Usually, however, it will be an award that covers mental and physical distress, medical expenses, bills, and lost wages. However, the Mealey’s Litigation Report has stated that the average award in mesothelioma cases that go to trial is $2.4 million. In cases where a settlement is reached, they estimate that the settlement value is between $1 million and $1.4 million, and that this is usually paid by multiple defendants. That being said, no two cases are the same, so these are only estimates.
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