Between the 1920s and 1970s, hundreds of negligent companies exposed thousands of employees to toxic asbestos, putting the workers at risk of developing mesothelioma and other asbestos-related diseases.
Mesothelioma, a rare but aggressive form of cancer, attacks the mesothelium, the thin protective tissue that covers and protects most of the internal organs of the body. Most cases of the disease can be traced back to exposure to a carcinogenic mineral fiber called asbestos.
To pay for the high cost of mesothelioma treatment, many patients and families file lawsuits against manufacturers of the asbestos products related to their exposure. If you’re considering such a suit, be aware that there’s a deadline for filing such cases; each state limits the time you have to file a lawsuit after your diagnosis.
Asbestos Trust Claims
Many patients file out-of-court claims against one or more of the approximately 70 different former asbestos corporations that have filed for bankruptcy and established trust funds at the direction of the government to pay any current and future claims. Out of $37 billion deposited into those trusts, more than $18 billion has been paid to people who were injured after being exposed to asbestos.
The first trust was established by the Johns-Manville Corporation in 1982. Since then, virtually every asbestos manufacturer has filed for bankruptcy and created a trust.
Filing a claim and obtaining a settlement can be a painstaking process of documenting decades of exposure, potentially to different companies’ products, particularly if a plaintiff worked in the construction industry or something similar.
The asbestos trust funds are managed by bankruptcy trustees who determine the amount to be paid to individual plaintiffs. The amount of each award is based on a number of factors, such as the type of injury and the particular payment schedule of the individual trust involved. Most of the trusts don’t have enough money to pay all anticipated claims, and so they offer a percentage of their claims. This can be as little as 1.1 percent.
Because of issues with fraud, some states have attempted to limit the amount of time mesothelioma patients have to file trust fund claims. This has been criticized because of the lengthy process of identifying the source of the particular asbestos product that injured the plaintiff.
You should consult an attorney who specializes in asbestos litigation to see whether you can recover funds. Most mesothelioma lawyers work on a contingency basis, meaning they get paid only if you agree to a settlement or win your lawsuit.
How the Mesothelioma Lawsuit Process Works
While each mesothelioma lawsuit is unique, each generally follows a course similar to other litigation. Here are the general steps you can expect a case to follow if you file suit:
Step 1: File a Complaint
After gathering information, including identifying the manufacturer of the asbestos to which you were exposed, you and your attorney file a legal document called a complaint that details your injuries and says why the defendant is liable for your injuries. You may be eligible to file complaints against multiple defendants and file a lawsuit in more than one court. As of 2002, 730,000 people had filed lawsuits against more than 8,400 defendants, and the cost of resolving claims was estimated at $70 billion.
Step 2: Await Response
Each defendant in the lawsuit will receive a copy of your complaint and has a certain amount of time to respond to complaints, usually 30 days, depending on the state where it was filed and how long it takes to contact the responsible company. Most of the time, the defendant will try to get the judge assigned to your case to dismiss the complaint. Your attorney will try to keep that from happening.
Step 3: Discovery
Before the case goes to trial or settles, both sides gather evidence by taking depositions and requesting documents, including your work history and medical records and testimonials from coworkers and supervisors. Your attorney will prepare you for any questions the defense may ask you and will sit down with your former colleagues and other witnesses to try to pinpoint when and where your exposure to asbestos happened. The attorney may assemble a timeline to illustrate your experience with asbestos. Sometimes, the exposure involved several manufacturers. Documents important to the case include invoices, anything that details job responsibilities and anything that links the company to asbestos products and use. Medical records may also be sought. This phase may take several months, but if you are very ill, your attorney can request to expedite the process.
Step 4: Trial or Settlement
Mesothelioma lawsuits often settle before trial. In fact, history shows an overwhelming majority of cases end in a settlement before going to trial. Even if the case goes to trial, the defendant may settle before the jury delivers a verdict. In the case of a settlement, iIt usually is not necessary for you to appear in court. You may be able to participate in the proceedings before trial from your home and communicate by video or phone.
Step 5: Expect an Appeal
If you win the trial, the defendant may file an appeal. There is a deadline, usually between 30 and 180 days, for the appellate filing. But once it’s filed, the courts can take months or longer to issue a ruling. In the meantime, the defendant will have to post “bond” for the amount awarded while the appeal proceeds. This may delay receiving any money from the jury’s award. An appeals court decides whether the trial court correctly applied the law to the case. If the appeal is upheld, the defendant may end up paying a smaller amount or nothing at all. Your attorney will be able to explain the process.
Step 6: Receive Payment
If you receive a jury award and the defendant makes no appeal, or an appeal is denied, you and your family may receive payments a few months after the completion of the trial.
Most defendants in mesothelioma lawsuits prefer to settle out of court rather than face a jury trial, because juries are unpredictable. If, at the end of a trial, a jury decides that the defendant is liable, it can award compensation based on two types of damages: compensatory and punitive.
Compensatory damages are based on actual economic losses, as well as the pain and suffering of the plaintiff. Punitive damages are based on how offensive and malicious the defendant’s behavior was that led to the lawsuit. Punitive damages are meant to deter the defendant and other similar companies from causing the same types of injuries again.
While some states set a cap on compensatory damages, some states, such as Missouri, have held that it’s unconstitutional to put a cap on punitive damages. Because many of the companies named in asbestos-related lawsuits knew about the dangers of asbestos and willfully endangered their employees, the punitive damages can reach millions of dollars.
The first successful trial of a lawsuit for damage due to asbestos exposure occurred in 1973 and involved an insulation worker who sued one of the large manufacturers of asbestos insulation. The case of Borel v. Fibreboard Paper Products Corporation set a precedent for personal injury claims against asbestos companies.
The first successful trial of a lawsuit for damages related to asbestos exposure occurred in 1973.
The case involved Clarence Borel, who worked as an insulator in refineries and shipyards and was sickened with fatal pulmonary asbestosis and mesothelioma. Borel sued 11 companies that made the asbestos products to which he was exposed in his work, including Fibreboard Paper Poducts Corporation. The lawsuits charged negligence and breach of warranty. His attorney further argued that the companies should be held liable under a provision in the law called the doctrine of strict liability, because the asbestos products weren’t labeled with adequate warnings of their dangers.
The jury awarded Borel’s widow total damages of $79,436 in 1971, but that amount was reduced by previous settlements and legal fees. In the end, three years after the appeals were done, Thelma Borel collected $35,000.
But the impact of the legal strategy resonated well beyond the Borel case. Once word got around that the doctrine of strict liability could be applied to asbestos manufacturers, thousands of similar cases were brought.
Roby Worthington was exposed to asbestos when he worked for U.S. Steel from 1950 to 1981. In 2001, 40 years after the Borel jury decision, he was diagnosed with mesothelioma. Worthington won a $250 million verdict against his former employer.
In 2006, 49-year-old David Bakkie won a jury award of $18.5 million. He was exposed to asbestos while working as a plastic molder from 1974 to 1975 and was diagnosed with mesothelioma in 2005.
In 2007, the family of former U.S. Navy machinist’s mate Richard Walmach was awarded $5.2 million after he died from mesothelioma in 2006.
In 2012, a jury ruled in favor of construction worker Bobbie Izell and awarded him $48 million. Izell was exposed to asbestos on construction sites in the ’60s and ’70s and was diagnosed with mesothelioma in 2011.
In more recent cases, a publication called Mealey’s Litigation Report: Asbestos summed up asbestos-related verdicts for 2015. It reported on 42 verdicts in the year, 26 of which were won by plaintiffs, and 16 by defendants. The largest verdict resulted in a $25 million award to a mesothelioma sufferer. The average award in cases plaintiffs won was $7.4 million.
Why Veterans File Mesothelioma Lawsuits
About one-third of mesothelioma victims are military veterans who were exposed to asbestos. Ships, tanks, aircraft and trucks all contained asbestos, as did buildings on military bases.
While the Department of Veterans Affairs (VA) provides service-connected compensation benefits along with health-care services and disability benefits, some veterans find that they need additional compensation to pay for the costs of living with and fighting this disease. Because of this, many veterans elect to file mesothelioma lawsuits against the companies responsible for producing the products containing asbestos used by the military.
Elaine Silvestrini is a career journalist with a strong desire to learn, explain, and help people. While working at Drugwatch, Elaine has reported on breaking news involving prescription drugs and medical devices and has written pieces on several large pharmaceutical companies and other topics. She is dedicated to telling people what they need to know about developments in the news, and helping consumers understand what they can do when something goes wrong with their drugs and medical devices.
- White, Michelle J. (2014) Mass Tort Litigation: Asbestos, Encyclopedia of Law and Economics. http://econweb.ucsd.edu/~miwhite/asbestos_springer.pdf
- Keith, Robert Q. and Robertson, Robert J. (n.d.) Borel v. Fibreboard Paper Products Corporation, Texas State Historical Association. Retrieved from https://tshaonline.org/handbook/online/articles/jrb01
- Bloomberg News. (2003, March 31). U.S. Steel loses asbestos lawsuit. Retrieved from http://articles.latimes.com/2003/mar/31/business/fi-steel31
- Jury orders N.J. firm to pay $5.2M in asbestos case. (2007, June 5). http://blog.nj.com/ledgerupdates/2007/06/jury_orders_nj_firm_to_pay_52m.html
- Randles, Jonathan. (2012, June 21). Calif. Jury Awards $48M In Union Carbide Asbestos Case. https://www.law360.com/articles/352759/calif-jury-awards-48m-in-union-carbide-asbestos-case
- Asbestos Verdicts & Settlements: January 2015 – December 2015, Mealey’s Litigation Report: Asbestos.
- Information for Veterans, Mesothelioma Applied Research Foundation. Retrieved from http://www.curemeso.org/site/c.duIWJfNQKiL8G/b.8717509/k.71E1/Information_for_Veterans.htm
- Asbestos Exposure Compensation, U.S. Department of Veterans Affairs. (n.d.). Retrieved from http://www.benefits.va.gov/COMPENSATION/claims-postservice-exposures-asbestos.asp
- Williams, O. K. (2014, December 19). Statutory Cap on Punitive Damages Deemed Unconstitutional. Retrieved from https://apps.americanbar.org/litigation/litigationnews/top_stories/121914-statutory-cap-damages.html
- Hoban, R. (2017, May 25). Asbestos Victims Will Get Less Time to File for Damages Under New Bill. Retrieved from http://www.northcarolinahealthnews.org/2017/05/25/asbestos-victims-will-get-less-time-file-damages-new-bill/
Were you diagnosed with mesothelioma after being exposed to asbestos?