Common Legal Issues in Mesothelioma Cases
There are certain legal issues that arise repeatedly or have particular significance in mesothelioma cases. Here you will learn about many of the common legal issues that might impact your case. Please keep in mind that the law governing these issues varies by state, and their application will depend on the particular facts of your case.
The State of Limitations and the Discovery Rule
The law limits the amount of time that an injured person has to file a lawsuit. Learn about the statute of limitations and the discovery rule and what they mean for your case.
The Second Injury Rule
In many states, if you were previously diagnosed with a non-malignant disease like asbestosis and even filed a lawsuit, you may still be able to pursue compensation if you are later diagnosed with an asbestos-related malignancy like mesothelioma. Find out more about what’s commonly called the second injury or separate injury rule.
The Statute of Limitations and the Discovery Rule
People who have not been involved in litigation are often not aware that the law puts time limits on filing a lawsuit called statutes of limitations (or in Louisiana, the “prescriptive period”). Generally, a mesothelioma claim must be filed within a certain time frame, with the length of time varying from state to state. Under the laws of most states this time period begins to run when a person has been diagnosed with the disease mesothelioma and is aware that asbestos exposure likely caused the disease.
Mesothelioma is an example of a latent injury or illness—one that does not appear until many years after exposure to a toxic substance like asbestos.
In fact, it is well known that mesothelioma can take decades to develop after a person’s initial exposure to asbestos. Of course, at the time a person is exposed to asbestos they have no way of knowing whether they will ever develop mesothelioma or any other asbestos-related disease, and in most states, they cannot bring a lawsuit for asbestos exposure unless they have actually been harmed by the toxic substance. To be fair to people with mesothelioma and other latent injuries, most states have adopted what’s known as the “discovery rule”.
Here’s how the discovery rule works in asbestos cases: When someone develops a disease as a result of another’s wrongdoing that happened many years prior, he or she is allowed to bring the claim within a set period after the illness is diagnosed and they know or should have known the cause of the disease. Under traditional statutes of limitations that existed in most states many years ago, the time period for bringing suit might have expired just a couple years after a person’s exposure to asbestos, even if no asbestos-related disease was diagnosed until many years after the fact. Fortunately, the discovery rule has been adopted by most states to protect the rights of an injured person to seek justice.
The Second Injury Rule
If you have been diagnosed with asbestosis or asbestos-related pleural disease, you probably know that you are at greater risk for developing certain forms of cancer in the future, including malignant mesothelioma. If you brought an asbestos lawsuit in the past based on that previous diagnosis, you may wonder what will happen if you develop asbestos-related cancer in the future.
Fortunately, the law in most states would now allow you to bring a new lawsuit to recover for the asbestos-related cancer. In Texas, the law changed in 2000 thanks to a legal battle fought by Baron & Budd. Before that time, Texas law prohibited the victim of a second asbestos-related disease from bringing a second lawsuit. But now, asbestos victims have the right to pursue a second, separate claim if they develop asbestos-related cancer.
In Pustejovsky v. Rapid-American Corp., Baron & Budd represented an ironworker who developed asbestosis in the early 1980s. He sued one asbestos company responsible for his disease and won a settlement. Then, in the 1990s, the same man was diagnosed with pleural mesothelioma, a cancer of the lining of the lung caused by exposure to asbestos. The ironworker then filed suit for his mesothelioma, but the trial court threw out the case because of the 1980s asbestosis lawsuit. The judge ruled that Texas law gave the ironworker the right to file only one lawsuit, regardless of the fact that he had developed a separate asbestos-related cancer many years after the conclusion of his asbestosis lawsuit.
Fortunately, the Texas Supreme Court rejected the trial judge’s reasoning. Instead, the court agreed with Baron & Budd attorneys that a person who develops a asbestos-related cancer has a right to bring a lawsuit under Texas law even if they previous filed a lawsuit for a different asbestos-related disease.
In addition to convincing the Texas Supreme Court to change Texas law on this issue, Baron & Budd also lead the charge to convince the supreme court of Iowa and an appellate court in Florida to recognize this important right for the victims of asbestos-related cancers. Today, many states around the country allow an asbestos victim to file a second lawsuit if they develop a separate, asbestos-related disease like mesothelioma.
