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Although you may think that the actions taken by corporations that may have led to the development of mesothelioma by many people amount to criminal acts of negligence and indifference, a mesothelioma lawsuit falls under the legal category of torts, or personal injury law. This is actually to your advantage however, because the standard of proof is less than that required of criminal situations.
The U.S. Constitution made certain that persons accused of crimes were afforded every right, protection and opportunity to prove their innocence. Felony trials are always conducted before a jury, and any verdict must be unanimous; the accused must be found guilty "beyond a reasonable doubt."
These standards do not apply in civil disputes. In cases involving a jury, the verdict is by majority; there only needs be a preponderance of evidence showing liability. This means that the evidence must only demonstrate that something is more likely to be true than not.
The procedure for filing a mesothelioma lawsuit is the same as that of any other civil action. Once you have a solid diagnosis by a qualified physician, it is highly advisable to contact a mesothelioma lawyer who has had experience and success in mesothelioma litigation.
Step One
Before you consider filing a lawsuit, it is important to be properly diagnosed with malignant mesothelioma by a medical professional, and even to seek out a second opinion.
It also makes a difference as to whether you have mesothelioma or some other type of asbestos cancer. Generally, the courts have been more generous to mesothelioma victims than plaintiffs with other cancers or non-malignant asbestos diseases; awards are made in 75% of all mesothelioma cases going to trial. Only about half of those involving asbestosis are found in favor of the plaintiff, however.
In any event, you may want to seek a diagnosis from your family doctor and /or an experienced oncologist, pathologist or another physician with experience in asbestos related diseases. It should include a biopsy which is examined by a pathologist, and may also include x-rays, or a CAT scan.. This is the solid documentation of your illness that your lawyer may want to have available for examination by the judge and jury.
Step Two
It is important to understand that your right to file a claim may be subject to a statute of limitations. This varies depending on the law of the applicable state. In any event, the sooner you file your complaint, the greater your opportunity may be for recovering your damages.
Although anyone who can write reasonably well and pay the filing fee (between $50 - $250, depending on the state or jurisdiction) can file a civil complaint, in a mesothelioma action, it is better to first discuss the case with an attorney. A good mesothelioma lawyer will be thoroughly familiar with the specific laws relating to your illness, and ideally will have successfully represented many such clients.
When you find an attorney willing to represent you in whom you have trust and confidence, s/he will need several pieces of information and documents in order to successfully prepare and file your complaint:
- Your occupation and place of employment
- Names and contact information of co-workers
- Specific asbestos products you used or saw in your employment
- How many years you worked at this job
Signed releases allowing your attorney access to any pertinent confidential materials, such as medical records, employment and Social Security documents, etc.
In addition, if you are in an advanced stage, your attorney will need to have a copy of any will you have made, as well as the names and addresses of all beneficiaries.
Once these are in order, the mesothelioma lawyer will file the formal complaint with the court clerk on your behalf. In essence, this document contains five pieces of information:
- A declaration of your illness
- Where asbestos exposure allegedly took place
- Name and location of the company or companies responsible
- The type of illness from which you are suffering
- The remedy (resolution) you are asking the court to provide
Once this paperwork has been filed with the court clerk, a copy is hand delivered to the defendant by an officer of the court known as a process server. The defendant(s) are provided time to respond. They will likely either deny all liability, or their lawyers will file a motion to dismiss your case.
Step Three
Before the actual trial begins, there will be a long and arduous process of discovery, the period during which evidence is gathered and examined, witnesses are scheduled and interviewed, depositions (sworn statements) are taken, and more.
During the discovery process, you will be interviewed by attorneys for the defense. Expect that they will use all their expertise to demonstrate that your claim has no basis. They will examine your entire life and all your medical records in an attempt to show that your illness was not their fault, or that you were aware of it earlier than you claim (therefore arguing that the statute of limitations had expired). They may even attempt to intimidate you. Your lawyer may guide you through this process and assist you as much as allowed under the law.
In the meantime, both sides may try to reach a resolution to the matter; some call this an out-of-court mesothelioma settlement. If this does not occur before the trial date, court action will proceed.
While this is a stressful process at a time when you are least able to deal with it, remember that the law and precedent are on your side and your lawyer is there to advise you along the way.
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