The Mn Criminal Defense, Personal Injury & Family Law Blog
Brainerd, MN Injury Lawyers and Mesothelioma Claims
November 3, 2019
In a nutshell, mesothelioma is one of the most difficult cancers to diagnose and treat. For these reasons, and because asbestos exposure is basically the only cause, compensation in these cases is usually quite high.
Initially, mesothelioma victims exhibit the same symptoms as Non-small cell lung cancer patients. NSCLC is much more common, so many doctors confuse these two different kinds of cancers. Because NSCLC is often treatable or even manageable, many doctors prescribe conservative treatment regimens. These approaches do not work against aggressive cancers like mesothelioma. So, the victim usually gets worse. Mesothelioma is hard to treat because the tumors are in the meso lining between the heart and lungs. It’s almost impossible to remove them, and difficult to shrink them with radiation without affecting other vital organs.
These issues help a Brainerd, MN injury lawyer build a claim for damages. These claims give victims the financial resources victims need to take on mesothelioma.
Generally, the statute of limitations in injury claims is two years. But mesothelioma’s latency period may be more than twenty years. So, if a person was exposed to asbestos in 2000, there is a good chance that this person is not even coughing yet. Furthermore, as mentioned, many doctors do not promptly diagnose mesothelioma. By the time the diagnosis comes, the two-year exposure statute of limitations has long passed.
The delayed discovery rule comes into play in these cases. In most cases, the two-year statute of limitations clock does not start ticking until the victim discovers the full extent of the injury and the victim seeks out a Brainerd, MN injury lawyer about a legal claim.
This legal principle comes up in other situations as well, such as occupational disease workers’ compensation matters. Most people do not run to the doctor as soon as they feel a twinge in their knees or they have trouble hearing. The discovery rule protects victims in these situations.
Brained, MN Injury Lawyers and Causation
Mesothelioma claims usually involve either direct exposure or ambient exposure. In general, Brainerd, MN injury lawyers may only file civil claims in ambient exposure claims.
For years, builders used asbestos, which is a fibrous mineral, as a fireproofing agent in buildings and ships. If the victim was exposed to asbestos during construction, demolition, renovation, or other projects, workers’ compensation may be the proper avenue. However, if the victim was exposed to asbestos during non-work hours, or the victim did not work in an asbestos-related industry, ambient (indirect) exposure probably caused the victim’s mesothelioma.
Sometimes, there is some overlap. Workers’ compensation is not always the exclusive remedy in direct exposure cases. Recklessness is a good example. If the employer knew that workers might be exposed to asbestos and the employer did not take all necessary precautions, a civil damages claim might be in order. The same thing is true if a defective product or a negligent co-worker substantially contributed to the injury.
Generally, the burden of proof on this point is a preponderance of the evidence (more likely than not). In most cases, either direct or ambient exposure is a possibility. A Brainerd, MN injury lawyer only needs to tip the scales of justice ever so slightly in one direction or the other.
Trust Fund or Direct Action
To get past this final legal hurdle, Brainerd, MN injury lawyers must do some detective work and also use the proper approach.
In the late 20th century, many companies that used asbestos declared bankruptcy rather than face lawsuits. Federal courts allowed these companies to do so if they funded trust funds for future victims. Today, these funds contain some $30 billion.
That sounds like a lot of money, but there may be millions of asbestos exposure victims. The trust funds must cover not only mesothelioma, but other asbestos-related illnesses as well, such as asbestosis. So, trust fund administrators are often very stingy. A Brainerd, MN Injury lawyer must have plenty of evidence as to damages. Without such proof, the victim may not receive fair compensation.
Many asbestos companies, especially renovation and demolition companies, are still in business. In these situations, Brainerd, MN injury lawyers may file claims against the companies. Causation, and not damages, is usually the biggest issue in these cases. Without sufficient proof of ambient exposure, a Crow Wing County judge may throw the claim out of court.
In addition to compensatory damages for things like medical bills and emotional distress, substantial punitive damages may be available in these claims as well. Typically, the company knew about the dangers of asbestos exposure but purposely failed to take the proper precautions for its workers.
Reach Out to Savvy Attorneys
Mesothelioma claims involve some complex legal issues. For a free consultation with an experienced Brainerd, MN injury lawyer, contact Carlson & Jones, P.A. We do not charge upfront legal fees in injury cases.