Unlike most common personal injury claims where the clock starts ticking at the specific moment of injury, it’s difficult to determine exactly when and where the asbestos injury occurred because an accurate diagnosis typically comes 20 to 50 years after the initial exposure.
Because of this long latency period, courts in some states have made exceptions applying statutes of limitations.
Statutes of limitations refer to the amount of time a person has to file a claim. For victims of asbestos exposure, this time frame typically begins once a person is diagnosed with an asbestos-related cancer.
The legal system is set up for one reason, and one reason only: to give justice to those who have been wronged. Like any system created by human beings, it is of course not perfect. However, when it comes to product liability issues such as asbestos exposure, it can give individuals who develop health problems (like mesothelioma) a way to pay for their medical expenses, lost income, and ongoing care.
The truth is, asbestos has been known to cause diseases for well over a hundred years – in fact, even the Ancient Greeks knew that asbestos was deadly. Yet companies have continued to use this dangerous substance, disregarding all medical and other evidence of its toxic nature. Even today, asbestos still is not banned, and it is still mined, imported, and used to manufacture a variety of products. Just in the past couple years, asbestos has been found in everything from typical products, like brakes and construction materials, to children’s products like toy forensic kits and crayons.
The solicitor will ask the claimant to sign authority forms so that the lawyer can access the person’s medical records from their GP and consultant. He or she will also arrange for a respected and experienced specialist consultant in this field of medicine to confirm the diagnosis of mesothelioma. The Ministry of Justice is working with the National Cancer Registration Service and Public Health England to speed up the process of obtaining hospital medical records.
A successful mesothelioma case can be complicated. It is not always enough to be diagnosed with mesothelioma and to identify a time and a place when the exposure took place. For example, it may be necessary to demonstrate that the level of asbestos dust inhaled was above the occupational hygiene level in place at the time of the exposure. The solicitor will be well practiced in gathering evidence from expert witnesses (medical consultants, engineers and care experts) to strengthen a case and may also have to appeal to former work colleagues to be witnesses for their claim.
How long you have to file a mesothelioma claim can vary depending on where you live and the type of claim you are filing.
Each state has its own laws, called statutes of limitations, that determine the time period within which a claim must be filed. Depending on the state, you may have as little as one year or as long as six years during which your asbestos claim can be filed.
The claim filing timeframe can also depend on which type of claim you are making (see below for a description of the different claim types). In some states, you have less time to file a wrongful death claim (filed by family members after a mesothelioma victim dies) than to file a personal injury claim (filed by a mesothelioma victim after diagnosis).
Pursuing a civil claim
If you were exposed to asbestos while in employment, you might wish to pursue a civil claim against that previous employer. It’s important to use a solicitor who is a specialist in mesothelioma claims and make sure that they have a good track record in this field. You can ask them how many cases they’ve won and ask for client stories, called case studies. Mesothelioma UK has advice about making a claim, what questions to ask and a list of solicitors. In Scotland, get in touch with Clydeside Action on Asbestos (CAA).
Common law claim
A common law claim is a claim process through a court. The claim is brought against the party or parties who caused a person to be exposed to asbestos. These parties are known as the «defendants». A common law claim begins by filing a formal court document known as an «originating process». The originating process must be lodged within your lifetime to protect your entitlement to compensation. As long as you start a common law claim during your lifetime, your estate will still be able to continue with your claim if you die before the claim is finalised.
You need to speak with a lawyer experienced in asbestos-related compensation claims as soon as possible after your diagnosis. If you’re too unwell to visit the lawyer in their office, they can visit you at home or in hospital to discuss the process and how it can be simplified for you and your family.
Asbestos Trust Funds
Many manufacturing companies that used asbestos in their products had to declare bankruptcy after a flood of mesothelioma claims wiped them out.
Realizing that there were thousands of individuals who could still develop mesothelioma, Congress amended the bankruptcy code in 1994. This allowed liable companies to set up trust funds for people they exposed to asbestos. Trust funds ensure that those harmed can receive compensation even if the company that harmed them has bankrupted.
How Does Asbestos Exposure Happen?
For close to a century, thousands of workers were exposed to asbestos for prolonged periods of time. Construction workers, oil refineries workers, steel and metal workers, military personnel, and even teachers have been exposed. In the 1970s, after in-depth investigations and studies, it was determined that asbestos is an extremely harmful mineral. There was strict regulations placed on the use of asbestos shortly after.
Yet, for millions of workers, the damage had already been done. Some employers even ignored the laws and continued to use asbestos. Since symptoms of mesothelioma can take decades to surface, the majority of these workers went for years without knowing the damage that had already been to their health.
Each defendant has a limited amount of time to respond to your complaint with a document known as an answer. A defendant usually uses the answer to deny all of the claims made in the complaint. This filing is usually followed by a motion to dismiss, which points out any failures on your part to state a sufficient legal claim or follow other procedural requirements. If the court grants the motion to dismiss, your case will end.
Otherwise, the parties will continue filing documents with the court to narrow the issues that will be addressed during trial. They will also engage in discovery, which involves gathering more facts, disclosing documents like your medical records and the defendant’s company records, and deposing witnesses. You can expect to be deposed early in your case. Your attorney will seek to have it done in a place, like your home, where you can be comfortable and receive necessary medical care.