If you recently lost a loved one to cancer, you are dealing with a devastating loss. But if your loved one’s death certificate says the cause of death was mesothelioma, you might have the option of obtaining compensation for the loss in a wrongful death lawsuit.
Some physicians have been known to mistake mesothelioma for lung cancer, and the death certificate then is incorrect. Mesothelioma is different from lung cancer in critical ways. Most significantly, mesothelioma is only caused by asbestos exposure.
Asbestos is a dangerous carcinogen that was used for decades in many manufacturing, industrial, military, and other industries for its heat-resistant and fireproof properties. But inhalation or swallowing of tiny asbestos fibers can lead to deadly mesothelioma in the lungs, abdomen, and heart. (Cancer.gov)
Filing a mesothelioma wrongful death lawsuit can help the loved ones of the deceased to pay for piled-up medical bills, funeral and burial costs, future lost wages, emotional pain, and suffering, and more.
Below is detailed information about what you should do if your loved one died from mesothelioma. If you have any questions, be sure to speak to a skilled mesothelioma attorney in your area.
Who May File a Mesothelioma Wrongful Death Lawsuit?
This question is addressed by the laws of the state in which the person died. But in most cases, the following people can bring a wrongful death mesothelioma lawsuit:
- Surviving spouses
- Minor stepchildren
- Domestic partners
- Parents and siblings
- Nieces and nephews, in some cases
Note that adult, non-dependent stepchildren who were not legally adopted usually cannot file a wrongful death lawsuit. But biological children who were not adopted by another person usually can file. Even if those children were estranged and removed from the will, they usually can still file suit.
Many asbestos wrongful death lawsuits are filed by the decedent’s estate. Such cases can be filed even if your loved one did not have a will. If the state probate court appoints a personal representative, that individual can file the wrongful death lawsuit for all heirs.
Damages That Can Be Won in a Mesothelioma Wrongful Death Lawsuit
According to a 2016 Mealey’s Litigation Report, the average trial award for a mesothelioma case is $2.4 million, and settlements range from $1 million to $1.4 million. A mesothelioma wrongful death suit could result in less compensation, as the victim is no longer alive and incurring ongoing medical expenses.
Damages that you may be entitled to in a wrongful death lawsuit include:
- Projected lost wages: The amount of money the decedent would have earned until they retired.
- Cost of medical care for their mesothelioma
- Funeral and burial expenses
- Loss of future services, assistance and care the decedent would have given to the family
- Loss of comfort, companionship, and guidance
If the case results in a settlement, you may be able to obtain compensation within a month or two of filing the claim. If the case goes to trial, it could take a year or more to be compensated. It is important to talk to your mesothelioma attorney about whether to take a settlement or go to trial. While a settlement might result in less compensation, the money comes much faster. And, if you go to trial, you could lose and get nothing.
How To Make a Mesothelioma Wrongful Death Case
A mesothelioma wrongful death lawsuit can be filed if the death certificate says the cause of death of your loved one was mesothelioma. However, obtaining evidence for this type of wrongful death lawsuit is challenging. Much of the evidence regarding asbestos exposure died with the victim.
Family members who did not work with the deceased loved one might not be able to describe where and how the asbestos exposure happened. They also probably do not know which products containing asbestos were involved. Asbestos exposure usually happened decades earlier, with the latency period between exposure and disease manifestation taking up to 40 years. (EPA.gov). That is why the average age that people are diagnosed with mesothelioma is 72. Unfortunately, most people are diagnosed late and do not live beyond a year or two. (Cancer.org). The five-year survival rate for all types of mesothelioma patients is 9%.
For these reasons, witnesses to the asbestos exposure, such as former co-workers, and written evidence from work diaries or union documents, are vital to prove the case. Your mesothelioma wrongful death attorney will need to expend significant financial resources on interviewing witnesses, collecting records from employers and worksites, and generally investigating, when, where, and how asbestos exposure happened.
This work is essential to pinpointing who the defendants are. It is possible the decedent was exposed to asbestos by multiple employers and asbestos product manufacturers. If the defendants cannot be found, the wrongful death case could be limited to bankrupt suppliers of asbestos products and manufacturers of products that contain asbestos.
How To Value a Mesothelioma Wrongful Death Lawsuit
Any personal injury lawsuit attempts to put a monetary amount on injuries and damages. It is quite easy to determine what the economic damages are, such as lost wages, medical bills, funeral costs, and lost future income.
What is harder is to put a value on noneconomic damages. In a personal injury lawsuit, these are usually referred to as pain and suffering. In a wrongful death lawsuit, the loss is generally measured by what the loved one contributed to the surviving family in terms of advice, companionship, household, and emotional support, etc.
This means if the person who died from mesothelioma had only one child heir living in another state could have similar noneconomic damages as that of a person who had an asbestosis diagnosis, and whose heirs are a spouse and grandchild who lived with the deceased party. Medical damages usually are greater in a mesothelioma lawsuit than an asbestosis one because cancer treatments are very expensive.
Other economic damages in the mesothelioma lawsuit are based on what the decedent’s income was and how much heirs were dependent on that income.
Because many mesothelioma settlements are made in a package, which involves looking at the case from a high level, such distinctions might not matter unless the case goes to a jury. If you obtain a favorable verdict from a jury, it is required to break down damages into several categories.
Statutory Issues in a Mesothelioma Wrongful Death Lawsuit
All wrongful death cases are subject to a statute of limitations, which is the time in which filing suit is allowed. This time limit varies by state. In most cases, the time to file a wrongful death lawsuit is one or two years from the date of death. But the statute can be different for illnesses related to asbestos than for other types of wrongful death actions. If the statute of limitations has expired, a claim cannot usually be made.
In rare cases, however, a claim might be brought later IF the heirs had no way to know that asbestos was the cause of death. For example, if the original death certificate states the cause of death was lung cancer, the family may not know for some time about the actual cause. If it is later determined that the decedent died from mesothelioma, it may be possible to file a wrongful death lawsuit.
To learn more about how to file a wrongful death lawsuit when it said mesothelioma on the death certificate, talk to an experienced mesothelioma attorney in your state.