Every mesothelioma case is different, especially if the plaintiff accepts a settlement and the case is not taken to court. However, there is a general process that must be followed that can also provide insight for what patients and their families can expect.
Step 1: Free Consultation
Before filing a lawsuit, a mesothelioma law firm will provide you with a free consultation to talk about various parts of the process. This will give you an opportunity to ask any questions and express any concerns you might have.
The free consultation also gives your law firm the opportunity to understand more about how you or your loved one might have been exposed to asbestos. You’ll then discuss your medical history, including your diagnosis of an asbestos-related disease.
Step 2: Research Work & Medical History
Once the initial consult is completed and you choose to pursue a lawsuit, your mesothelioma lawyer will start collecting data to help build your case to make it as strong as possible. Research often includes:
Medical reports from facilities where you (or your loved one) were treated for mesothelioma
Employment history, military service records, union membership and other documents that support your employment history
Statements from witnesses such as coworkers, family members, friends and product-identification specialists
Step 3: Asbestos Trust Recovery
Once the necessary information has been collected, your asbestos attorneys will investigate the possibility of receiving compensation from an asbestos trust fund. These trust funds were created by companies who have previously admitted liability for asbestos-related damages, and if your case matches the trusts’ exposure criteria, you may be able to receive compensation quickly.
An experienced mesothelioma lawyer will be very familiar with asbestos trust requirements and will have a successful track record of submitting asbestos claims on behalf of qualified clients.
Step 4: Other Recovery Options
After evaluating the potential for compensation through asbestos trust funds, your mesothelioma attorney will also assess whether your case may merit an action against any companies who have not yet fully admitted their asbestos liability. Over the course of 1 – 2 months, your legal team will look at the various options available and provide guidance about the best course of action based on your individual case.
Step 5: Choosing the Complaint Venue
Before filing a complaint, it’s extremely important to choose the most appropriate venue, or where your case will be handled. Which venue is best for your lawsuit can be affected by a number of different factors, including:
Calendars and scheduling concerns
The process timeframe
Settlement and verdict history
Local and state laws
Mesothelioma lawsuits may be filed in any forum where a client has lived, worked or served in the military. There are also a number of “open forum” states that may allow filing, if no other suitable venue is readily available.
Step 6: Filing the Lawsuit
Once the venue is determined, your lawyer will file a formal complaint on your behalf. This will detail a number of legal causes of action against the asbestos company or companies likely responsible for the asbestos exposure that led to your mesothelioma diagnosis. The number of defendants named in the complaint will depend on various factors, including the amount and duration of asbestos exposure.
Step 7: Discovery Phase
Upon filing the lawsuit, the legal process will move to the discovery phase, both the defendant’s and the plaintiff’s lawyers will present information to support their side of the case. During this period, both sides will file various motions, usually with the intent of trying to reach some kind of financial settlement before the case goes to a full trial.
In most cases, the lawsuit will never reach the next stage of the legal process. Instead, most complaints will be settled before getting to trial. If the mesothelioma lawsuit does go to trial, which will only happen with your consent, your attorneys will be equipped with the experience, knowledge and competence to see it all the way through.
What to Expect During a Mesothelioma Lawsuit
Filing a lawsuit can be emotionally challenging, especially if any part of the process goes on longer than anticipated. The best way to avoid or deal with unexpected complications is to have a team of dedicated attorneys who specialize in asbestos litigation. Additionally, patients or loved ones can familiarize themselves with the process to get a better idea of what to expect.
Mesothelioma Lawsuit Duration
Mesothelioma victims often ask how long they can expect a mesothelioma lawsuit to last, especially when undergoing treatment after diagnosis. The amount of time that it will take to gain compensation is very difficult to predict, as it can vary based on a variety of factors, including:
Number of plaintiffs filing
Current docket load of chosen venue
Number of defendants named in the complaint
Individual lawsuit vs. consolidated case
Number and type of pretrial motions filed
Complexity of facts that need to be determined
Scheduling and availability of all involved parties
A study of consolidated cases in New York City Asbestos Litigation (NYCAL) showed that asbestos trials can range anywhere from 11 – 113 days, with an average of 11 – 38 days per plaintiff. Those averages also don’t include the weeks or months of consultation, research and discovery that happen before the trial. Lawsuits that are settled without going to trial may be shorter, but the duration can still vary greatly based on the factors above.
Behavioral and Medical Counterclaims
The defendant may try to defend their case by making counterclaims, such as blaming your medical diagnosis on other factors. This can occur before or during the trial. Asbestos companies may try to assert that your diagnosis of mesothelioma or asbestos cancer was caused by other factors, including:
Unhealthy behaviors such as drinking, smoking or using illegal substances
Exposure to asbestos somewhere other than identified, such as at home or a different workplace (for those who faced occupational asbestos exposure)
Genetic problems or a family history of predisposition for mesothelioma or other forms of cancer
They may also challenge the accuracy of your medical diagnosis or the qualifications of the medical professional that gave your diagnosis. While disconcerting, your mesothelioma lawyer can skillfully address these counterclaims on your behalf.
When faced with a lawsuit regarding asbestos exposure, the defendant may also attack the manner in which your complaint was filed. Some possible challenges include:
That the time limit afforded by the statute of limitations has expired
Other technical problems with the petition, even if it is filed within the right time frame
Problems with the venue chosen or reasons why a different venue is more suitable
Your authorization to file on behalf of someone who has died from mesothelioma
When handled by an established law firm that has spent time researching and building all aspects of your case, these types of counterclaims are rarely successful.