Are you considering whether you should file a mesothelioma lawsuit? It is critical to understand the timeframe that you need to follow. Sadly, it is common for people to lose their right to compensation because they wait too long to submit their mesothelioma claim. Given the often decades-long latency period for mesothelioma to appear, the rules regarding the statute of limitations can get rather complex.
Types of Statutes of Limitations
Every state has its own statutes of limitations during which victims of mesothelioma and asbestos exposure can file a lawsuit. This means you have a limited time to file your lawsuit. If you do not file on a timely basis, you may lose the right to get asbestos claims payouts for your pain and suffering, medical expenses, funeral costs and lost earnings.
In addition, other considerations can come to the fore depending upon whether victims are filing on behalf of themselves, or if a family member is filing a claim for a loved one who died from an asbestos-related disease. There are two types of statutes that deal with each type of claim.
Statute of Limitations for Personal Injury
Personal injury statutes of limitations are relevant for those who have been diagnosed for mesothelioma themselves. The clock on the statute starts to tick when the diagnosis is made. In some states, including California, the statute of limitations may be as short as one year. To meet vital asbestos timelines, it is critical to find a skilled mesothelioma lawyer as soon as you learn of the diagnosis. It may take many months to ready the lawsuit against the companies that exposed you to asbestos. Delaying even a few days can limit your ability to hold the negligent entities accountable.
Remember, if a doctor mentions the words ‘asbestos’ or ‘mesothelioma’ related to cancer, you should ask if they think the cancer is definitively related to asbestos. There are some doctors that may think that a cancer is not mesothelioma when it actually is. In any case, it is very important to work with the medical professional to reach a definitive diagnosis. This is important in terms of potential statutes of limitations. But it also matters because treatment options are often very different for various types of cancer.
Statute of Limitations for Wrongful Death
Wrongful death statutes of limitations are important for the loved ones of the mesothelioma victim who has died. The clock for filing a wrongful death mesothelioma lawsuit after death starts upon the death of the person who had the disease. In many states, the statute of limitations for a wrongful death lawsuit for mesothelioma is the same as for personal injury. But other states have a shorter statute of limitations for filing a wrongful death lawsuit.
A common issue for delaying the filing of a wrongful death lawsuit is that the family members may not have known their loved one was exposed to the toxic substance. It can take weeks or months to collect a list of former workplaces, employers, homes and other items to determine where the loved one might have been exposed to asbestos. Mesothelioma can take as long as 40 years to develop after exposure, so much legwork needs to be done to determine where and when asbestos exposure occurred.
If you have a loved one who passed away from this terrible lung disease, you should talk to an experienced mesothelioma attorney who has the skills, resources and experience to get going on researching who is responsible.
Statute of Limitations – Which State?
Another challenge with the statute of limitations for a mesothelioma claim is determining in which state the lawsuit needs to be filed. Which state that the suit is filed in can depend upon these factors:
- Where the person lives or lived
- Possible job sites or military facilities where the exposure may have happened
- Where the responsible companies are based
Some state courts have provisions for immediate trials to occur for people with mesothelioma or an asbestos-related condition. For instance, in New York City, there is a judge that has a case management order that states accelerated trials can occur for mesothelioma cases from April to October each year.
Below is a list of statute of limitations per state.
- Alabama: 2 years from diagnosis; 2 years from death
- Alaska: 2 years; 2 years
- Arizona 2 years; 2 years
- Arkansas: 3 years; 3 years
- California: 1 year; 1 year
- Colorado: 2 years; 2 years
- Connecticut: 3 years; 3 years
- Delaware: 2 years; 2 years
- Florida: 4 years; 2 years
- Georgia: 2 years; 2 years
- Hawaii: 2 years; 2 years
- Idaho: 2 years; 2 years
- Illinois: 2 years; 2 years
- Indiana: 2 years; 2 years
- Iowa: 2 years; 2 years
- Kansas: 2 year; 2 years
- Kentucky: 1 year; 1 year
- Louisiana: 1 year; 1 year
- Maine: 6 years; 2 years
- Maryland: 3 years; 3 years
- Massachusetts: 3 years; 3 years
- Michigan: 3 years; 3 years
- Minnesota: 4 years; 3 years
- Mississippi: 3 years; 3 years
- Missouri: 5 years; 3 years
- Montana: 3 years; 3 years
- Nebraska: 4 years; 2 years
- Nevada: 2 years; 2 years
- New Hampshire: 3 years; 3 years
- New Jersey: 2 years; 2 years
- New Mexico: 3 years; 3 years
- New York: 3 years; 2 years
- North Carolina: 3 years; 2 years
- North Dakota: 6 years; 2 years
- Ohio: 2 years; 2 years
- Oklahoma: 2 years; 2 years
- Oregon: 3 years; 3 years
- Pennsylvania: 2 years; 2 years
- Rhode Island: 3 years; 3 years
- South Carolina: 3 years; 3 years
- South Dakota: 3 years; 3 years
- Tennessee: 1 year; 1 year
- Texas: 2 years; 2 years
- Utah: 3 years; 2 years
- Vermont: 3 years; 2 years
- Virginia: 2 years; 2 years
- Washington: 3 years; 3 years
- West Virginia: 2 years; 2 years
- Wisconsin: 3 years; 3 years
- Wyoming: 4 years; 2 years
An experienced asbestos and mesothelioma attorney can provide advice about the proper venue to file a claim based upon the statute of limitations and other matters.
The Discovery Rule and the Statute of Limitations
Usually, the clock for the statute starts to run when the person is injured. A landmark mesothelioma lawsuit in 1973 called Borel v. Fibreboard Paper Prod. Corp. dealt with the immense challenges of applying this rule to mesothelioma victims. Since that case more than 40 years ago, courts have applied what is called ‘the discovery rule’ to asbestos and mesothelioma cases.
The plaintiff in that case was named Clarence Borel. He worked in industrial insulation and he was exposed to insulation containing asbestos for more than 30 years. From 1936 to 1969, he was exposed to insulation that contained the deadly mineral. In March 1969 came a diagnosis of pulmonary asbestosis.
Seven months after that, he and his attorney filed a personal injury lawsuit against the makers of the insulation materials he used on the job. His condition got worse and eventually developed mesothelioma. This grim diagnosis led to the removal of his right lung.
US Court of Appeals for the Fifth District Weighs In
The US Court of Appeals for the Fifth Circuit noted the unfairness of applying tradition rules to asbestos exposure victims. That court stated there were many personal injury cases that involved the victims’ exposure to hazardous substances. Those cases found that a cause of action had not accrued until the effects of the exposure began to truly show themselves.
The Fifth Court stated that the discovery rule was applicable in medical malpractice cases. According to that rule, the cause of action did not really accrue until the cause of the injury was found out, or should have been found out.
The court ruled that the discovery rule should be applied to cases of asbestos exposure. A court in Illinois further explained this issue in a mesothelioma and asbestos case against Johns Manville. It found that the cause of action only accrues when the victim knows or should have known about the injury, and also knows or should have known that the injury was due to the wrongful acts of another party.
The Borel lawsuit is a very important case because it was the first that held asbestos manufacturers liable for injuries caused by the toxic substance. Today, courts across the US apply this rule to asbestos and mesothelioma cases. Plaintiffs have a certain period of time to file the claim after they learned or should have learned about their injuries. This in most cases is when the victim was diagnosed with the disease.
Were You Injured?
It is critical to speak to an experienced asbestos and mesothelioma attorney in your state as soon as you have been diagnosed with mesothelioma or an asbestos-related condition by your doctor. The date of diagnosis will be well documented in evidence that is presented in court. If you do not meet the relevant statute of limitations – sometimes as short as one year from the date of diagnosis – you could be forever barred from obtaining compensation for your injuries.
- California Statute of Limitations Laws. (n.d.). Retrieved from https://statelaws.findlaw.com/california-law/california-civil-statute-of-limitations-laws.html
- Clarence Borel, Plaintiff-appellee, v. Fibreboard Paper Products Corporation et al.,defendants-appellants, Nationalsurety Corporation,intervenor-appellee, 493 F.2d 1076 (5th Cir. 1973). Retrieved from https://law.justia.com/cases/federal/appellate-courts/F2/493/1076/4552/
- Time Limits for a Personal Injury Lawsuit: Watch the Statute of Limitations. (n.d.). Retrieved from https://www.nolo.com/legal-encyclopedia/time-limits-personal-injury-lawsuit-watch-the-statute-limitations.html
- Mesothelioma Statute of Limitations. (n.d.). Retrieved from https://www.mesothelioma.com/lawyer/statute-of-limitations.htm