Thousands of companies over the decades have been sued for exposing employees to asbestos and causing them to develop mesothelioma. Some of the lawsuits are brought by the person who was exposed to the deadly substance. But other lawsuits were filed by the family of the person who was diagnosed with mesothelioma and passed away either before or during the legal action.
From 1999 to 2015, there were 45,221 deaths with mesothelioma mentioned on the death certificate in the United States. (Ohsonline.com). The greatest increase in mortality is among people 85 and older. (NPR.org). People who were closely related to the deceased party have the option to file a wrongful death lawsuit, if certain criteria are met.
Who Can File a Wrongful Death Asbestos Claim
For a wrongful death lawsuit to be filed successfully and won, certain criteria need to be satisfied. First, the asbestos or mesothelioma death needs to have occurred due to negligence on the party of an entity or multiple entities.
Also, the US and state governments have established rules for who can file such a lawsuit. For example, a cousin cannot come forward and say that they want to file a wrongful death asbestos claim. In legal terms, you must be eligible to file such a suit; this is known as ‘legal standing.’ Some of the common relationships that qualify to file a wrongful death lawsuit for asbestos exposure are:
- Husbands, wives and children; the latter can include adopted and stepchildren. Others that qualify to file are mothers and fathers, and usually brothers and sisters
- Some states allow grandparents to file
- Anyone who is financially dependent upon the deceased. In California, you need to be at least 50% financially dependent upon the deceased to have legal standing to file suit.
Wrongful Death Lawsuit Requirements
For an asbestos wrongful death lawsuit to be successful, the plaintiff must show the following:
- Exposure: There must be proof that the deceased was exposed to asbestos at a certain location or locations during a certain period. This proof can be obtained by job description, work that was done and recorded by the person, assigned job duties and testimony from witnesses, such as former coworkers who can describe how the deceased was exposed. Proof also must be demonstrated that the deceased suffered death due to asbestos exposure. Medical records from healthcare professionals can be subpoenaed to provide this necessary evidence.
- Negligence: Negligence must be proven on the part of the defendant (there can be more than one defendant). The defending company must have known or ought to have known that their workplace or product had clear health dangers related to asbestos exposure. This the essential legal element of an asbestos wrongful death claim. Negligence may be established by showing the history of the company, which could include exposing other workers to asbestos. A wrongful death lawsuit may be attached to a class action lawsuit.
- Impact: A successful lawsuit must show the survivors of the deceased have suffered a clear loss from the death. The deceased is not able to be compensated for their losses. Thus, it is incumbent upon the plaintiff to prove they have been affected by loss of financial support, guidance and/or companionship. Emotional suffering and sometimes punitive damages also can be part of the impact claims for the surviving family.
The Wrongful Death Lawsuit Process for Asbestos Claims
In every case related to an asbestos death, a good asbestos attorney will conduct a lot of research. This may start with the plaintiff. Good law firms have experienced teams of legal investigators who have done many asbestos claims in the past, and they have a vast resource database at their disposal.
Experienced asbestos case law firms know the names and contact information for most companies that have used asbestos. This allows the research process to be done quickly, efficiently and accurately. At the end of that research, your attorney should have enough information to know whether there is enough evidence to win a wrongful death claim.
The Decision to File a Wrongful Death Suit
If it is determined that enough evidence exists, your attorney will recommend that a suit be filed. In a wrongful death lawsuit involving asbestos and mesothelioma, it is not always obvious in which state the case should be filed. Usually, the wrongful death claim is filed where the victim lives or where they were exposed to the toxic material. But if there is another jurisdiction or state where the case could be filed with better results, the attorney may choose that state.
This is the next part of the wrongful death lawsuit process. This is where the attorney builds the best possible case on your behalf. The attorney will depose defendants and will collect information about you or your loved one’s work history, medical and personal information.
It is common at this point for the defense to make attempts to have the asbestos lawsuit dismissed before it ever reaches a courtroom. The defendant might also try to make a very low settlement offer.
If it is a wrongful death lawsuit and the defendant was negligent in exposing your loved one to asbestos, the possible settlement or verdict award could be in the millions of dollars in many cases. An experienced wrongful death attorney will not be fooled by any low settlement offer. Approximately 95% of asbestos lawsuits do result in a settlement, but it is very important that your attorney negotiate the maximum amount possible.
Statute of Limitations and Wrongful Death Lawsuits
Also be aware that wrongful death lawsuits for asbestos are governed by the statute of limitations for each state. This means the plaintiff is disallowed from making a claim from a certain period of time after the wrongful death allegation was made. For a suit related to asbestos, the statute of limitations ‘clock’ starts when the diagnosis for an asbestos-related disease was made.
The statute of limitations for a wrongful death action can run from one to six years from the date of diagnosis. Be sure to consult your state’s laws in this matter. In California, for instance, the statute of limitations is within two years of the death. (Courts.ca.gov).
It also is important to note that an asbestos wrongful death lawsuit can be filed in any state, regardless of the location where the major exposure occurred. Asbestos lawsuits often have complications over jurisdiction. Given that the length of time from exposure to diagnosis usually spans decades, many victims and decedents worked and lived in many states in that time. It is possible for several asbestos exposure periods to have occurred in different cities and states. Also, asbestos products are often produced in states other than where the actual exposure occurred. Thus, it is possible for the lawsuit to be filed in the state of product manufacture. Your wrongful death attorney will conduct research to determine the best venue in which to file suit.
Get Mesothelioma Legal Help
With over $30 billion available for victims through the Asbestos Trust Funds, you could be entitled to financial mesothelioma victim compensations without ever filing a lawsuit? Mesothelioma & Lung Cancer victims qualify immediately. Complete the form or call us toll free (800) 352-0871
- Asbestos Hazards Still With Us. (2017). Retrieved from https://ohsonline.com/articles/2017/04/06/asbestos-hazards-still-with-us.aspx
- Asbestos Deaths Remain a Public Health Concern. (2017). Retrieved from https://www.npr.org/sections/health-shots/2017/04/11/523277735/asbestos-deaths-remain-a-public-health-concern-cdc-finds
- Statute of Limitations in California. (n.d.). Retrieved from https://www.courts.ca.gov/9618.htm