Many illnesses are idiopathic, meaning of unknown cause; no specific substance is responsible for causing the disease. Mesothelioma is different because its only known cause is exposure to asbestos.

For decades, asbestos companies knew of its dangers, yet they failed to take the simple steps that would have protected tens of thousands of workers and consumers – and their families – from these dangers. Most asbestos companies failed to put warnings on their products or use substitute materials. In fact, many companies went to great pains to keep the known dangers of asbestos secret from both their workers and the public. They put profits before safety.

This bad behavior is why most people with mesothelioma and other asbestos-related diseases file lawsuits – to hold asbestos companies responsible and to get compensation for their injuries.

In this chapter, we explain your rights and options as a victim of asbestos exposure. First, we explain the time limits in your state for filing legal claims for asbestos-related disease. Then we provide advice for finding the right attorney for you and your family. Finally, we provide an overview of the various kinds of financial help that may be available to you so you know which options to discuss with your attorney.

Filing a Timely Claim

To protect and assert your rights as a mesothelioma patient (or victim of another asbestos-related disease), you have to act quickly after you’ve received your diagnosis.
Every state has placed a time limit, called a statute of limitation, on mesothelioma claims. The clock starts ticking as soon as you receive your initial diagnosis, and if you don’t file your claim within the specified time frame, you lose many of your rights to compensation. In addition, because many people with mesothelioma live less than a year after diagnosis, it’s important to act quickly.

Here are the statutes of limitations for each of the 50 states and the District of Columbia:

Choosing an Attorney

The laws and options surrounding mesothelioma and asbestsos- related disease claims are varied and complex, and you’ll want the help of a qualified and experienced mesothelioma attorney to help you decide which options make the most sense for you and your family.

Find an experienced mesothelioma lawyer who has tried mesothelioma cases in court (gone to verdict) as well as negotiated out-of-court settlements, and is respected nationally as a mesothelioma attorney. It’s also important to hire an attorney who will actually work on your case – not one who will refer your case to another law firm. Many lawyers advertise for mesothelioma cases, but they don’t actually work those cases; instead, they refer you to another lawyer. You should avoid this situation.

To protect your legal rights, you should contact an attorney as soon as possible after you’ve been diagnosed with mesothelioma or any asbestos-related disease. It’s best to choose an attorney or law firm with significant experience in asbestos-related cases, but you also want an attorney you feel comfortable with.

Here are some things to look for when shopping for an attorney:

• Experience. The attorney should give you an overview of his or her experience and success rate in mesothelioma cases.
• Attention. Your attorney should listen to the specifics of your case, understand and address any concerns you have, and explain your options – and the pros and cons of each option – in language you can understand. Your attorney also should make recommendations based on your specific case.
• Fairness. Attorneys who work with mesothelioma patients typically accept cases on a contingency basis, which means they don’t get paid unless they win your case or negotiate an acceptable settlement. Contingency fees are usually a percentage of a settlement or jury award – generally between 33.3 and 40 percent of the total money received. Make sure you understand what percentage your attorney will take and whether there will be any expenses in addition to that percentage, such as postage, travel, or other expenses, and get the fee agreement in writing. Expenses should be taken out of the total settlement, not your share of the proceeds.
• Responsiveness. Does the attorney (or someone from the firm) return your calls promptly? Do they answer your questions fully and courteously?
• Comfort. You should feel comfortable talking and working with your attorney, just as you should feel comfortable dealing with your doctor. If you don’t feel comfortable, don’t hesitate to check out other attorneys.

Your first meeting with an attorney, called an initial consultation, should be free, and the attorney should offer to come to your home. During that first meeting, here are some questions you may want to ask:

• What is your experience (or the firm’s experience) successfully trying mesothelioma cases and lawsuits?
• How many cases have you handled?
• Will you handle the case, or will you refer it to another law firm?
• If you accept my case, will I be working with you or with someone else in your office? Who else will be on my legal team?
• What are my legal options, and which options do you recommend?
• What are the chances of success in my case?
• If you accept my case, how long will it take to receive my compensation?
• Will my case be part of a class-action lawsuit, or will it be an individual suit?
• Will I have to go to trial to resolve my case, or will it be settled out of court?
• If I’m too sick to work with you, will you work with a member of my family on my behalf?
• How will you protect my privacy within the firm and in dealing with potential defendants?

Be wary of law firms that send investigators or other non-lawyers to your initial meeting. You are hiring a lawyer, not a professional investigator or marketer – and you should be meeting with a lawyer, not someone who travels around signing up cases.

Relatives may be able to file suit on behalf of someone who has died from mesothelioma or another asbestos-related illness, as long as the claim is filed within the time frame dictated by law. Contact an attorney to find out what your options are.

Belluck & Fox has a national reputation as asbestos and mesothelioma attorneys. We have recovered more than $500 million for our clients with mesothelioma and asbestos-related cancers, and Belluck & Fox has been named one of the top law firms in the United States.

Checking Out Financial Assistance Options

A mesothelioma diagnosis often includes a hefty financial burden. If you don’t already have health insurance, you likely won’t qualify for a new health insurance plan. Even if you have health insurance, your out-of-pocket expenses for doctor’s appointments, tests, treatments, and prescriptions may go up significantly – and some treatments may not be covered at all. You’ll also likely spend more on transportation to and from various appointments and may have to spend more on meals and other travel-related expenses, depending on how far you live from your doctor and/or treatment center. You also may want to participate in experimental treatments, which typically are not covered by insurance.

Most mesothelioma patients have several avenues available to them to help out with the costs associated with their illness. The following sections describe some of these options. Be sure to discuss these with your attorney; in some cases, filing certain claims may limit your rights to other forms of compensation. It’s important to have your mesothelioma lawyer handle all your compensation benefit claims to make sure you’re fully protected.

Individual Lawsuits

If you decide to file a lawsuit, your attorney will seek both compensatory and punitive damages. Compensatory damages cover your economic losses – such as medical expenses,
lost income, and any additional costs related to your illness, and your non-economic damages, such as compensation for pain and suffering. Punitive damages are designed to punish the company (or companies) for their negligence or other bad behavior in exposing you to the risks of asbestos. Lawsuits also can recover damages for your spouse’s loss of companionship.

Your attorney will look at several factors in your case, including:

• Your work and life history. An experienced attorney will take a detailed history to identify every way you may have been exposed to asbestos at work and at home – even from dust and fibers carried into your home by a household member who worked with or was exposed to asbestos. Because so many products (ranging from car brake pads to floor tiles) contained asbestos, it’s not uncommon for people to be unaware or unable to remember how they were exposed. (See Chapter 1 for information on direct and indirect exposure.) Experienced mesothelioma attorneys have a vast store of knowledge and resources to identify how and where you may have been exposed to asbestos – and who is responsible for that exposure.
• Your eligibility to file a claim, including whether your claim is timely.

If you’re a smoker and have mesothelioma or another asbestos-related illness, you are still eligible to file a claim. Smoking and asbestos exposure both can cause lung cancer, and these two factors combined increase your risk for developing lung cancer. However, smoking does not cause mesothelioma, asbestosis, or other asbestos-related diseases. If you’ve been diagnosed with one of these diseases, the cause is asbestos exposure and your smoking habits have nothing to do with your illness.

• Your rights under various bankruptcy trust funds. Your attorney will determine your eligibility for payment from mesothelioma trust funds established under bankruptcy proceedings.
• Existing documents and new evidence pertaining to your circumstances. Your attorney should have an extensive library of documents and testimony from other asbestos cases that can be used in developing your case. In addition, your attorney may interview you and other witnesses (such as co-workers, medical experts, and so on) to help build your case.
• Who should be sued. Even if you don’t remember where or when you may have been exposed to asbestos, your attorney can help you determine these details by examining your work history and other facts. Generally, the defendants in an asbestos exposure case include the manufacturer(s) of asbestos-containing products; contractors that installed and/or repaired asbestos- containing products and equipment; suppliers of materials to the work site; and property owners who allowed asbestos to be used on their property.
• What is a fair level of compensation for your suffering? An experienced mesothelioma attorney will be able to give you a rough idea of what your claim should be worth, based on the circumstances of your case and the outcome of similar cases. However, it’s important to remember that each case is different. While most attorneys won’t accept your case unless they believe it has a very good chance of being successful, no attorney should make any promises about the amount of compensation you’ll receive. Instead, as your case progresses, your attorney will evaluate any offers based on what he or she feels is fair and reasonable compensation for you. (See Chapter 7 for more on how your case will proceed.)

Mesothelioma Trust Funds

Many companies that manufactured asbestos products have filed for bankruptcy protection to avoid making huge payouts to injured workers and their families. In many cases, bankruptcy judges have ordered the companies to establish trust funds specifically for victims of asbestos-related illnesses. (The nearby sidebar lists some asbestos companies that have declared bankruptcy or are no longer in business as of this writing, but have active trust funds for asbestos claims.) These trust funds pay at a very reduced rate, and the proceeds from these funds aren’t enough to fully compensate you.

Your attorney can help you determine whether you have a legitimate claim against one of the mesothelioma trust funds. These claims must be coordinated with your lawsuit, because they can affect other attempts to win compensation for your illness.

Asbestos Companies with Active Bankruptcy Trust Funds

As of 2010, 54 asbestos companies had filed for bankruptcy and established trust funds to deal with claims of asbestos- related diseases. Other companies are awaiting court approval for their bankruptcy trust funds; your attorney will have
up-to-date information.

The following page contains a partial list of asbestos companies with active bankruptcy trust funds.

Class Action Lawsuits

Class action lawsuits involve a large group of people who suffer similar injuries or wrongdoing at the hands of the same defendant(s). Class action lawsuits aren’t used in mesothelioma and asbestos cases. Class action suits most often are settled out of court and therefore often appeal to people who don’t want to go to trial. However, because of the large number of claimants (those suing for damages), settlements in these cases are typically based on the broadest interests of the class. Individual circumstances that may warrant a larger settlement amount aren’t considered in class action cases.

The lack of consideration for individual circumstances is the main reason that the U.S. Supreme Court has ruled that class action lawsuits aren’t appropriate for asbestos cases. People who are exposed to asbestos have widely differing circum- stances, including different exposure levels, different ages, different diseases, and different medical treatment. Such variety makes it virtually impossible to craft a class action settlement that would be fair to every member of the class.

Other Kinds of Assistance

Depending on your circumstances, you may be eligible to receive other kinds of assistance to help you with the financial impact of your illness. You should discuss these options with your attorney, who can tell you more about the process of applying for these forms of assistance and the impact such applications may have on your case.

• Worker’s compensation. If you worked for an asbestos company, you may also have the right to file a claim. In most states, you cannot sue your employer, but you can file a worker’s compensation claim. The laws governing worker’s compensation claims vary from state to state and can be extremely confusing. Your attorney can explain your options and the pros and cons if you want to file a claim against your (current or former) employer.
• Veterans’ benefits. Many members of the military were exposed to asbestos during their service. You may be eligible to file a claim with the Department of Veterans Affairs.
• Social Security disability benefits. If your asbestos related illness has forced you to quit working before you reach retirement age, you may be eligible for Social Security disability benefits. Again, filing for these benefits can be complex and confusing, so talk with your attorney about the filing process and what you can expect.
• Medicare/Medicaid coverage. If you’re over age 65, you should qualify for Medicare coverage. However, Medicare itself doesn’t cover all medical expenses. If you’re transitioning from an employer health insurance plan to Medicare, your out-of-pocket expenses could increase significantly, depending on what kind of supplemental Medicare insurance you purchase. Medicaid is a state-federal health insurance program that covers low-income individuals and families. Be sure to check with your attorney or ask for a referral to a Medicaid expert to stay up-to-date on changes in coverage, eligibility, and other factors.
• Long-term disability insurance. If you don’t already have a long-term disability insurance policy before you’re diagnosed with mesothelioma, you probably won’t qualify for a new policy. However, if you’re already covered before your diagnosis, this policy should begin paying benefits (usually a percentage of your former salary) after you’ve been disabled for six months. Check with your employer’s human resources department or with the insurance carrier to find out when your benefit kicks in, how much you’ll receive, whether your payments from the policy are taxable, and the policy’s time limits. Most policies only pay out for two or three years because they assume that, if you’re permanently disabled, you’ll apply for and receive Social Security disability benefits.
• Community assistance programs. Many communities have organizations that help arrange such things as transportation to and from doctor visits, home-delivered meals, help with household chores or errands, and financial assistance with out-of-pocket expenses. Your local chapter of the American Cancer Society should be able to provide referrals to this kind of help in your community.