Is It Too Late to File a Mesothelioma Lawsuit?

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Dealing with a mesothelioma diagnosis of your own or a family member is an overwhelming experience. Getting a proper diagnosis and making sure appropriate care and treatment are received are essential. But vital financial decisions, such as how you will pay medical bills, make up for lost wages and cover funeral expenses, can be forgotten in a time of emotional crisis.

Delaying the legal and financial aspects of a mesothelioma diagnosis is usually a colossal error. The time period a victim or family can wait to file an asbestos cancer lawsuit usually is 12-48 months from the date the cancer was diagnosed; this depends on the statute of limitations for your state of residence.

Mesothelioma Lawsuit By Deceased Becomes Part of the Estate

In many cases, the asbestos cancer victim will file a personal injury lawsuit against the company that exposed them to asbestos. While they live, the person would usually get compensation in the personal injury claim or through an asbestos trust fund claim.

If the victim dies during the lawsuit, the injury claim is transferred to the estate. Legal decisions then are made by the estate representative. This individual usually is an immediate member of the family, such as a husband or wife, but it also can be someone who is not related.

If the deceased’s will did not name a family member or friend as the estate representative, one will be appointed by the court. This representative will decide if the claim should be pursued further.

How a Mesothelioma Lawsuit Claim Changes After Death

If the person who filed the personal injury claim passes away from mesothelioma, any monies awarded are given to the estate, not the representative. The funds can be split in several ways, just like a will splits the assets of the estate among members of the family.

The damages awarded in this situation is usually less than if the person had lived. This is because the cancer victim is presumed to have ongoing bills and expenses to pay, as well as pain and suffering. But if the asbestos cancer victim dies, those aspects of the claim are no more.

Winning a claim can be more complicated if the original claimant died because:

  • The deceased’s asbestos exposure history can be harder to prove.
  • The deceased is not around to be questioned or deposed under oath.
  • Evidence can be harder to find, such as work records, medical reports, etc.
  • It may be harder to find witnesses, including former co-workers, who can testify about asbestos exposure.

How to File a Wrongful Death Lawsuit

If your loved one died of mesothelioma, another option is filing a wrongful death lawsuit on behalf of the estate. This type of legal action can offset the medical debt, funeral costs and lost income.

Of critical importance is the statute of limitations in asbestos cancer cases. It is important because mesothelioma has a long latency period. It can take 40 or 50 years for symptoms to appear and the disease to be diagnosed. In asbestos lawsuits, the latency period is a critical part of the statute of limitations.

It is critical to be sure that the statute of limitations has not passed to file the mesothelioma wrongful death lawsuit. In most states, the statute of limitations is two or three years from the date your loved one died, or from the date the disease was diagnosed. If you wait until the statute of limitations passes, it is too late to file a mesothelioma lawsuit.

The most common family members who file wrongful death lawsuits are:

  • Husbands, wives, or life partners
  • Children, including stepchildren and adopted children
  • Parents and grandparents
  • A person who was financially dependent on the deceased

Your mesothelioma attorney can help decide when is the best time to file, and which party should file the claim.

Wrongful Death Process for Mesothelioma Claims

The mesothelioma wrongful death lawsuit process is similar to a personal injury claim. The initial step is for your attorney to conduct in-depth research on companies that may have exposed your loved one to asbestos. Also, your attorney may interview former co-workers, friends, and family who knew the person who died of asbestos cancer.

As with a personal injury lawsuit where the victim dies during the legal process, a wrongful death lawsuit can be hard to prove because the person is no longer around to provide testimony.

The wrongful death plaintiff and his attorney need to find former co-workers and related witnesses of the deceased to provide testimony about the possible asbestos exposure that occurred.

A skilled mesothelioma attorney knows most of the companies that processed asbestos or used it in their products. He can conduct research to find the company or companies that exposed your loved one to asbestos.

Best States to File Mesothelioma Claims

Your wrongful death attorney also can recommend the best state in which to file the claim. If the deceased worked in several states, a claim could be filed in many jurisdictions. Your attorney will decide which one is the most likely to generate the best results.

Companies can be liable for secondhand asbestos exposure in some states. Asbestos fibers can adhere to skin, hair, clothes, or shoes. The fibers can go home with the worker and expose family members to the deadly toxic substance. Your lawyer can determine if a secondhand exposure lawsuit is viable.

Wrongful death and personal injury lawsuits end with either a mesothelioma settlement or verdict. Most mesothelioma cases end in a settlement.


Mesothelioma has a long latency period, with some patients not being diagnosed until 50 years after asbestos exposure. It is vital to be aware of time limits to file a personal injury or wrongful death lawsuit in a mesothelioma case.

As soon as you or your loved one has been diagnosed with the disease, you should consult with an experienced asbestos cancer attorney. The statute of limitations to file a claim can vary widely by state, so the sooner you file, the better. Waiting until the last minute to file a claim may mean that it is too late to obtain compensation.