Asbestos & Mesothelioma Law Blog

Individuals who have been diagnosed with mesothelioma as a result of exposure to asbestos fibers may choose to file a lawsuit against those responsible for the exposure. These lawsuits can be critical in helping an individual recover resources that will help them pay for medical treatment. One way in which the amount of damages may be determined is by valuing the victim’s pain and suffering.

What is Pain and Suffering in Mesothelioma Cases?

An individual may experience physical and mental pain and suffering as the result of developing mesothelioma. Physical pain and suffering includes a person’s actual physical injuries. This involves the pain and discomfort that the person’s condition imposes on them. In mesothelioma claims, this may include pain in the chest, abdomen, or pain during coughing. Additionally, there is pain and discomfort as a result of treatment the individual receives.

The workers’ compensation system was developed with the purpose of compensating laborers who were injured in the workplace. For victims of mesothelioma and other asbestos-related diseases, workers’ compensation claims may be a method for recovery. However, there are limitations and issues to account for when considering whether to file a workers’ compensation for asbestos claims.

About Workers’ Compensation

Most states adopted laws in the 1920s putting in place workers’ compensation programs. Today, every state has a system, as well as a federal system for federal employees. Workers’ compensation eliminated the need for an injured worker to file lawsuit against his or her employer. Instead, the worker files a claim and may receive the following:

1. Medical care, such as the costs related to hospital visits, surgery, or medication;
2. Disability income; or
3. Help finding another job.

Generally speaking, an injured worker is not allowed to file a lawsuit against an employer for injuries sustained in the workplace. This is because workers’ compensation does not require the worker to prove fault for his or her injury. In exchange for not having to prove fault, employers are usually shielded from lawsuits. However, there are exceptions, such as if the employer intentionally injured the worker.

Mesothelioma is a devastating disease, often not manifesting itself for many years following exposure to asbestos fibers. A particularly aggressive treatment for mesothelioma treatment extrapleural pneumonectomy (known as EPP). The surgery is quite complicated and serious, but, if successful, can offer significant benefits.

What does the Surgery Involve?

EPP involves the removal of as much of the cancerous material as possible, which includes a lung, as well as the lining around it, lymph nodes, diaphragm, and the heart lining. The surgery requires that the patient be placed under general anesthesia. Because one lung is removed, tests must be conducted prior to surgery to ensure that the remaining lung will be strong enough to take over all lung function. Additionally, it must be determined that the cancer has not spread to other parts of the body.

The surgery is only viable if the mesothelioma is diagnosed in its early stages, before it can spread to the lymph nodes or other organs. As a result, EPP is often not a treatment option because mesothelioma is usually not diagnosed until stage III or IV. “Staging” is a method of describing the severity or extent of the cancer, with a range between stage 0 and stage IV. At stage IV, the cancer has spread to other tissues or organs far in distance from the area it first developed.

In mesothelioma lawsuits, the burden of proof is on the victim (known as the plaintiff). Simply being diagnosed with mesothelioma is not enough to make a successful claim. The Throneberry Law Firm has extensive experience in helping victims of mesothelioma obtain the compensation they need in order to fight this terrible disease.

Mesothelioma and Product Liability – Asbestos in Products

The use of asbestos in products was widespread for a majority of the 1900s. It is not uncommon for people to come across asbestos today, particularly when renovating homes or other buildings. The theory of product liability makes manufacturers responsible for certain injuries caused by the products they make. For example, a defective product that injures people who use it in the manner in which it was designed to be used may give rise to a product liability claim.

As part of his or her employment, a person may have used many different component products in the creation of a new product. The manufacturers of those products that contained asbestos may be liable to people who developed mesothelioma due to exposure to asbestos fibers.

The use of asbestos in products ended several decades ago, but it is still very possible that you may come across it, particularly in older homes or buildings. So the dangers of asbestos today still exist. It is very likely, for example, that any house built before the 1980s still contains some products with asbestos in them. Therefore, if you plan on completing work on your home, you should be aware of what to do in the event you come across asbestos.

Some Background on Asbestos

Asbestos was widely used in a significant number of products until the 1970s when it was publicly recognized that exposure to asbestos fibers was dangerous. While most products manufactured today do not contain asbestos, it still may be found in many places. Some of the products that asbestos was used in include, but are not limited to:

1. Steam pipes, boilers, and furnace ducts;
2. Soundproofing material that was sprayed on walls and ceilings;
3. Patching and joint compounds for walls and ceilings;
4. Resilient floor tiles, backing on vinyl sheet flooring, and adhesives used for installing floor tile;
5. Brake pads, clutches, mufflers and gaskets in older vehicles; and
6. Significant amounts of insulation material.

For victims of mesothelioma, obtaining compensation to help pay for medical treatment is a major concern. Fortunately, there are several ways in which compensation can be obtained. The Throneberry Law Firm has extensive experience in obtaining compensation for victims through each of the following means.

Meosthelioma Compensation – Bankruptcy Trust Funds

Many victims of mesothelioma developed the disease as a result of exposure to asbestos, often in relation to employment. Companies that used asbestos can be held liable through lawsuits. However, it is possible that these companies filed for bankruptcy, which provides them protection from being sued. But, in exchange for this protection, companies entering bankruptcy are required to set up trust funds that compensate victims who make successful claims.

There are many factors that contribute to how much compensation a victim will receive from a trust fund, such as the severity of the condition and the age of the victim. Approved claims are liquidated, which means they are assigned a monetary amount. The actual compensation received is usually a percentage of the liquidated amount. This is to help ensure that there will be enough funds in the trust to make all payments to future claimants.

The majority of mesothelioma cases never make it to a trial. Instead, it is often beneficial for both sides to agree to a settlement. A defendant may wish to settle to avoid the possibility of having to pay a large award if the case goes to trial. An injured person may find settlement advantageous because it allows faster recovery of compensation and avoids the potential of an unsuccessful lawsuit. The Throneberry Law Group has successfully negotiated for millions of dollars in settlements for the victims of mesothelioma.

How are Mesothelioma Settlements Obtained?

The first step towards obtaining a settlement is contacting an attorney with experience in mesothelioma claims. Your attorney will begin collecting materials to prepare for the filing of a lawsuit against the parties responsible for exposing you to asbestos. At this point, and any time after this, a settlement may be agreed to.

Exposure to asbestos fibers can lead to the development of mesothelioma which is a form of cancer. The most common form is pleural mesothelioma, which develops in the tissue surrounding the lungs. More than 2,000 people are diagnosed with this form of cancer each year.

It is possible to file a lawsuit against those responsible for your exposure to asbestos fibers. The possible modes of recovery include a settlement, winning the lawsuit, or, if the company has filed for bankruptcy, successfully making a trust fund claim. However, it is also possible that the development of mesothelioma will make an individual eligible for mesothelioma disability benefits.

Social Security Administration

The Social Security Administration (SSA) publishes a Listing of Impairments to aid in the evaluation of claims for disability. Under §13.15, there are two forms of mesothelioma listed under the category of impairments for mesothelioma disability benefits. They include:

It wasn’t until the late 20th century that the Environmental Protection Agency (EPA) officially concluded that exposure to asbestos caused certain serious diseases, including mesothelioma. As a result of this, along with the potentially long period before symptoms appear, many new cases of asbestos-related disease arise every year. At the Throneberry Law Group, we work diligently for you to obtain the resources you need in order to receive the best medical treatment available by filing a mesothelioma lawsuit.

Statute of Limitations

The statute of limitations describes the amount of time an individual has to file a lawsuit. Each state has different laws regarding the statute of limitations as it relates to asbestos-related claims. Generally speaking, the person making the claim (the plaintiff) must file a lawsuit within two years of the diagnosis. If the person exposed to asbestos has died, a wrongful death lawsuit may be initiated by that person’s survivors. In this case, the wrongful death lawsuit must be made within two years of the victim’s date of death. Again, each state has different statute of limitations so speaking with an attorney is necessary to determine if you are within the statute of limitations to file a mesothelioma lawsuit.

Information Required

In order to prove a mesothelioma case, there are several items that must be documented, including, but not limited, to:
The victim’s past employment history;
The victim’s medical history and reports;
The medical expenses related to the illness;
The asbestos in the workplace;
A list of activities the victim can no longer do as a result of the illness; and
Disabilities the victim now has due to the illness.
It is important to locate and provide as much of this information as possible. The more thorough the documentation, the better chance of success you will have.

What happens if the Victim in an Asbestos-related Case has died?

Asbestos can remain in the body, seemingly dormant, for a long period of time. As a result, it may be very near the end of the victim’s life before it is clear that exposure to asbestos caused a life-threatening disease. This raises an important question for victims and the families of victims: if the victim predeceases a lawsuit for being exposed to asbestos, what recourse does the victim’s family have?

Mesothelioma Wrongful Death Lawsuit

A claim of wrongful death alleges that the death would not have occurred were it not for the negligent actions of the defendant. In mesothelioma or asbestos-related claims, the defendant is often the company the victim worked for. It is important to note that it is irrelevant that the exposure may have been unintentional. Another consideration, particularly because of the long period in which asbestos-related injury may not appear, is the statute of limitations. It is critical to determine if the statute starts from the time of the misconduct or from the date of the discovery of the disease. The statute of limitations varies from state to state.

In a wrongful death claim, a representative will file suit on behalf of the victim’s survivors, who are called the “real parties in interest.” The representative is typically the executor of the estate. In all states, immediate family members, such as spouses and children, are considered the real parties in interest. Other individuals, such as more distant relatives or domestic partners, may also be considered the real parties in interest, but this varies by state.