Who Should I Sue for Asbestos-Related Health Problems?

Getting fair compensation for mesothelioma or any other asbestos-caused illness means figuring out who's liable and filing a lawsuit in court, or making a claim with an asbestos trust fund.

By , J.D.

For decades, asbestos has been linked to serious health problems like mesothelioma, other forms of cancer, and respiratory illness. But with a latency period (the time from exposure to asbestos until the time when the first symptoms of some asbestos-related disease appears) ranging anywhere from 10 to more than 40 years, new asbestos claimants are always emerging.

  • Lawsuits over health problems caused by asbestos in consumer products are fairly rare, but workplace exposure to asbestos leads to thousands of new claims every year.
  • Many asbestos manufacturers have gone out of business and/or filed for bankruptcy, but hundreds of these companies have also set up trust funds through which people harmed by asbestos exposure can make a claim for compensation.
  • When you file a lawsuit or claim for an asbestos-related health issue, your lawyer will want details on where you've worked and lived, and may also seek to obtain information related to your family members' work history.

Asbestos Exposure and Illness

Asbestos is a fibrous material that occurs naturally in the environment. For decades asbestos was used in a wide variety of products, and its durability and resistance to high temperature made it a common material used in construction, shipbuilding, oil production/refining, engineering, mechanics, the military, and elsewhere. People with a history of working with and around asbestos as part of their job represent (by far) the most common type of asbestos claimant.

Since the 1970s, as the health dangers of asbestos started to come into focus, its use has been greatly curbed, but the latency period discussed above means there's no shortage of new asbestos claims.

While we all breathe in trace amounts of asbestos every day, the inhalation or swallowing of significant levels of asbestos can lead to serious health problems like:

  • asbestosis (lung scarring)
  • lung cancer
  • mesothelioma (cancer in the lining of the abdomen and chest)
  • laryngeal cancer
  • abdominal cancer, and
  • ovarian cancer (especially linked to talc-based products like Johnson's Baby Powder).

Mesothelioma

The most common (and one of the most serious) health problems linked to asbestos exposure is mesothelioma, a cancer (often malignant) that attacks the lining of the lungs and the chest walls.

According to WebMD, symptoms of mesothelioma include:

  • chest/abdomen pain
  • dry cough/wheezing
  • respiratory complications
  • fluid around the lungs, and
  • shortness of breath.

Asbestos Lawsuit and Trust Fund Claim Basics

If you're wondering whether you can or should file an asbestos lawsuit or trust fund claim, the first thing to know is that it's not enough to have used an asbestos product in the past or to have worked with or around asbestos. Lawsuit-filing deadlines can also complicate things.

Who Is Eligible to File an Asbestos Lawsuit or Claim?

To file an injury-related asbestos lawsuit or claim against a manufacturer or anyone else, you need to be able to show that:

  • your employment history involves working with or around asbestos (often over a course of years), or
  • you've used a product containing asbestos (often extensively), and
  • you've received a medical diagnosis of an illness (such as mesothelioma) that might be linked to your exposure to asbestos.

Note: In some cases, the family members of people who have been exposed to asbestos on the job have themselves developed asbestos-related illness. More on these so-called "secondary exposure" cases later.

Should I File an Asbestos Claim?

The decision to file a claim for asbestos-related illness is a very personal one. Factors like the extent of your health problems, your chances of receiving adequate compensation from available defendants, and your willingness to go through the lawsuit/claim process all play a part in the decision.

Any legal action can be challenging on a number of fronts. But asbestos claims in particular can get very complicated, and a number of factors fairly unique to these kinds of cases can lessen the chance of full and fair financial compensation. Many potential asbestos defendants are out of business and/or bankrupt, meaning a lawsuit might not always be an option. While hundreds of bankrupt/defunct companies have set up asbestos illness trust funds to compensate people who have been harmed by asbestos exposure, making a claim with one (or more) of these funds almost certainly won't bring the kind of compensation that a lawsuit might. (More on asbestos trust fund claims later.)

So, after discussing your situation and your options with a lawyer, you might consider whether pursuing a claim will be worth it in the long run.

The Importance of Diagnosis In an Asbestos Case

Because illness/disease is a cornerstone of an asbestos-related case, lawsuit defendants often argue that the plaintiff doesn't actually have any disease, or that the plaintiff's damages are the result of some other, unrelated condition. An undiagnosed disease or an inaccurate diagnosis makes it much easier for the defense to avoid paying the plaintiff. It's a good idea to see a doctor at the first sign of any asbestos-related health problems—to protect your health and any asbestos case you decide to file.

What About Asbestos Lawsuit Filing Deadlines?

Laws called "statutes of limitations" set time limits on the right to file an asbestos lawsuit. Because asbestos-related diseases progress so gradually, there is often no clear date for the "onset of the injury." So, the date the person knew (or should have known in the eyes of the law) that the illness was related to asbestos is typically the start of the statutory time period. This date is often the date of diagnosis. If you wait too long after being diagnosed, you might be barred from pursuing a case, but an extension of the deadline might be possible if you didn't know (and couldn't have been expected to know) of the link between the illness and your asbestos exposure.

A number of states (including California and Texas) have a specific statute of limitations for asbestos lawsuits. In other states the deadline for "tort" or injury cases also applies to asbestos claims. Regardless of which of these time limits applies, the filing deadline in most states ranges from one to six years for a lawsuit over health problems caused by asbestos. For asbestos wrongful death lawsuits, a different statute of limitations applies (usually one to two years from the decedent's death).

In general, when it comes to making a claim with one of the asbestos trust funds established by bankrupt defendants (who can't be sued in court), filing deadlines aren't usually an issue, at least not with respect to getting the claim started a certain number of years after asbestos exposure/diagnosis.

Your lawyer will sort out all the particulars regarding how the statute of limitations or any other filing deadline applies to your situation.

How Do I Prove an Asbestos-Mesothelioma Case?

An asbestos lawsuit is usually filed based on a "product liability" theory of fault, where the manufacturer, supplier, or seller of a product can be held legally responsible when an unsafe product (like asbestos) is sold and used without proper warning to consumers and others, and ends up causing harm. Get details on proving a product liability case.

But from a practical standpoint, defendants in asbestos lawsuits (and administrators of asbestos trust funds) don't typically dispute every element of a plaintiff or claimant's case. The dangers of asbestos and a given company's use/promotion of asbestos are well-established, after all.

As discussed above, "proving" your asbestos case will come down to establishing:

  • the nature and extent of your asbestos-related illness, including a clear medical diagnosis, your prognosis for recovery, and your need for future medical care, and
  • the details of your connection and exposure to the company's product, including the nature and duration of that exposure.

So, these two areas are where asbestos defendants (in a lawsuit) and trust administrators (with a trust fund claim) might put up a fight. For example, a preexisting condition (whether one you actually have, or one the other side claims you have) can certainly complicate things, but it won't necessarily prevent you from receiving fair compensation for harm associated with a substance like asbestos, which carries such well-known health risks.

Keeping that in mind, don't be surprised to hear the defendant or trust administrator argue that:

  • a chronic condition like Chronic Obstructive Pulmonary Disease (COPD), bronchitis, asthma or even allergies could play a part in the health complications you're claiming
  • a current or past diagnosis of lung cancer, emphysema, pneumonia, or some other respiratory condition is to blame for the symptoms you're attributing to asbestos exposure
  • your respiratory problems or related health issues could be owing to a past or current coronavirus infection
  • your current or past use of cigarettes and/or other tobacco products is the source of your health problems, and
  • what looks to be peritoneal mesothelioma is actually celiac disease, Irritable Bowel Syndrome, or some other inflammatory bowel condition.

Fighting the "Preexisting Condition" Argument

You can theoretically try to show that any preexisting/chronic respiratory problems were of a certain type or severity before you used or were otherwise exposed to asbestos, and now your health problems are more acute or intense. But there is a large degree of subjectivity here, and an asbestos manufacturer or any other defendant will almost certainly argue that you're understating the impact of your preexisting condition, or that you're exaggerating the effects of any asbestos-related illness (though this defense strategy obviously won't hold up well in the face of a clear mesothelioma diagnosis).

Figuring Out Who Is Liable for an Asbestos-Related Illness

Finding the right defendant for a lawsuit over asbestos-related illness starts with understanding all of the avenues through which you might have been exposed to asbestos over the years (and over the decades):

  • Did you ever work in an industry that utilized asbestos?
  • Did you ever have a job that required you to work with or around asbestos?
  • Did a member of your household work with or around asbestos for a number of years?
  • Have you used a product (like Johnson's Baby Powder) that might have been tainted with asbestos?

Work History and Asbestos Liability

In most cases involving asbestos-related health issues, the plaintiff was exposed to asbestos on the job. Your lawyer will obtain a complete work history from you, and will collect records from all of your current and former employers in order to determine whether you were exposed to any asbestos-containing products at work. The manufacturers of those products are all potential defendants in your case.

Construction workers, firefighters, shipyard workers, industrial workers, power plant employees, and auto mechanics are some of the many types of workers who face an increased risk of asbestos exposure from the products they handle. Your lawyer will sue any manufacturers of those products, if they still are in business.

It's important to note here that an asbestos lawsuit against the employer isn't usually an option. A workers' compensation claim (not a lawsuit) is usually the exclusive remedy for harm caused by job-related asbestos illness. Learn more about liability for harm caused by workplace asbestos exposure.

Manufacturers of Household Products

People can suffer injury from asbestos-containing products at home, although this kind of exposure is not as common.

During the mid-to-late-1900s, home builders used asbestos-containing materials frequently. Asbestos in this form is considered to be dangerous only if disturbed. Accordingly, a remodeling process or damage to household items could cause the asbestos to become airborne and potentially harmful.

Some common asbestos-containing home building materials that builders used in this time period include roofing products, insulation, bricks, and vinyl flooring. Your lawyer will investigate where you lived and whether you were exposed to asbestos in this way, and can assess the viability of suing manufacturers of these products.

Talc-based personal products (such as powders and cosmetics), also may contain asbestos, since the mining process for both of these naturally-occurring substances (talc and asbestos) can cause cross-contamination. For example, in 2019 the U.S. Food & Drug Administration (FDA) found that a sample of Johnson's® Baby Powder was contaminated with asbestos, and in May 2020 Johnson & Johnson announced that it would stop selling this popular product in North America.

Family Members' Work History and "Secondary Exposure"

In the event that your own work history does not indicate asbestos exposure, your lawyer will explore the employment background of your family members to see if you might have suffered secondhand exposure.

Courts have established that people with asbestos-related health problems can sue manufacturers of asbestos-containing products and materials that another member of the household worked with or around at their place of employment

The theory here is that workers can transfer asbestos to other members of their households because the substance remains on their clothes and skin when they return home. Other household members can be exposed by sitting on furniture, through contact with the worker, or by simply doing laundry (shaking out asbestos fibers from tainted clothing and sending the fibers airborne, for example) over a course of years.

Get more details on lawsuits over secondary exposure to asbestos (from our partner site, Lawyers.com).

Landlord Liability for Asbestos In Rentals

It's rare for the presence of asbestos in an apartment building or other rental home to rise to the level of a serious health issue, but landlords and property owners do have a number of strict legal obligations when it comes to asbestos in rental property. Learn more about landlord liability for asbestos in rentals.

Your Lawyer Will Figure Out Who Is Liable

It's important to note here that if you've been diagnosed with an illness that's firmly linked to asbestos exposure (mesothelioma is a prime example), your best first step is to discuss your situation with an experienced asbestos lawyer. From there, you and your lawyer can work backwards and figure out when your asbestos exposure might have occurred. At that point the lawyer's network of investigators and experts will take over and narrow down the specific manufacturers, suppliers, and others who might be legally responsible for your asbestos-related harm.

How Can I Seek Compensation for Asbestos Illness?

The answer here depends on who is (or who might be) liable: a company that's still in business, or one that has gone out of business and/or filed for bankruptcy.

If the asbestos manufacturer or supplier responsible for your asbestos exposure is still around, and is still solvent, you (and your lawyer) can file a civil lawsuit against them in court.

But if the company is out of business or bankrupt, you'll need to hope there's an asbestos trust fund set up for people who have been harmed by the company's actions, and you'll need to make a claim for compensation under that fund.

What Is the Asbestos Lawsuit Process?

When you're filing a civil lawsuit over illness caused by exposure to asbestos, your court-based case will proceed through a number of typical stages, but it's important to keep in mind that settlement could occur at any point on the timeline. The basic framework of an asbestos lawsuit looks like this:

  • The plaintiff files paperwork that starts the lawsuit in court, and the defendant is provided ("served") with notice of the lawsuit.
  • The defendant files a response ("answer") in court.
  • Initial party requests ("motions") and other preliminary matters are considered by the court, usually after both sides prepare and present arguments on these issues. These can range from the broad (motions to essentially dismiss the case) to the specific.
  • The discovery process begins, meaning both sides send and respond to questions (interrogatories).
  • Additional motions are considered, in order to frame the case for trial.
  • Mandatory settlement conferences are held.
  • Trial takes place, after which a verdict for the plaintiff or the defendant will be entered. A verdict for the plaintiff will lead to a judgment ordering the defendant to pay the plaintiff a set amount of compensation (damages).
  • The outcome of the trial might be appealed.

What Is the Asbestos Trust Fund Claim Process?

Remember that a lawsuit isn't an option if the defendant has gone out of business and/or filed for bankruptcy. But as mentioned above, hundreds of these companies have set up trust funds for claimants who have been harmed by asbestos exposure over the decades. Most of these companies were major manufacturers or suppliers of asbestos decades ago. But most recently, in 2021, Johnson & Johnson dumped its liability over alleged asbestos-tainted talcum powder into a subsidiary, which promptly filed for bankruptcy. A trust-like claim fund is expected to emerge from that action.

The asbestos trust fund claim process will vary from fund to fund, but in general, once you and your lawyer have identified the proper trust to make a claim with—one set up by a company that played a part in your asbestos exposure—the process looks like this:

  • Get the claim process started. For many bigger trusts (such as Owens Corning/Fibreboard, W.R. Grace, and U.S. Gypsum) this means finding the trust's official website and signing up to use the claim filing/claim management program. At this stage (or a bit later) you'll typically need to choose either "individual review" or "expedited review". The trust website should provide details on the different processes, including eligibility and key differences.
  • Be prepared to provide all necessary evidence to show the nature and extent of your asbestos-related illness (medical records) and proof that you were exposed to the particular company's products (employment records, invoices, receipts, etc.)
  • Once all necessary information is submitted, claim review will begin, including assessment of asbestos exposure, disease level, and other factors.
  • Your claim will be given an appropriate dollar value (this is sometimes called the "liquidation" stage).
  • The trust will provide you with a compensation offer to resolve your claim. If you choose not to accept the offer, you can likely utilize the trust's ADR (alternative dispute resolution) process. You and your lawyer can also explore all other available options.
  • Payment will be made, often based on the trust's current "payment percentage" figures, which govern how much an individual claimant can receive in relation to all money currently available in the fund. For example, if the current payment percentage is 40 percent, and your claim was valued at $100,000, you'll receive $40,000.

How Much Is an Asbestos Lawsuit Settlement or Trust Claim Worth?

Every case is so unique that there's no reliable way to try to predict how much an individual asbestos lawsuit or trust claim might be worth.

As with any kind of injury case, the value of any asbestos claim hinges on the nature and extent of the claimant's "damages," which is a legal term that applies to the spectrum of harm and losses suffered by the claimant. "Damages" can refer to what's paid by the defendant to the plaintiff in a lawsuit (one that settles out of court or one that ends in a verdict for the plaintiff), or it can refer to a settlement award offered by an asbestos trust fund. (Learn more about damages in a personal injury case.)

Let's discuss common categories of damages, and how each can impact the overall value of an asbestos lawsuit or trust claim.

Cost of Past and Future Medical Care

This category of damages includes compensation for:

  • any medical treatment you've received as a result of your asbestos-related illness, and
  • any medical care you'll require in the future.

Note that if the full extent of your medical prognosis isn't clear, it's probably not in your best interest to accept an injury settlement offer. Your attorney will almost certainly want to wait until both of you have a clear picture of this component of your damages. Once you accept an injury settlement, you can't go back and reopen your claim, even if you learn that your health problems are worse than you first thought.

Lost Income/Diminished Earning Capacity

If your asbestos illness has forced you to take time off from your job, or has otherwise affected your ability to earn a living, that kind of economic harm will also factor into your damages in an asbestos claim. Specifically, you are entitled to compensation for any income you've already lost—and for income you would have earned in the future but now won't—due to your health issues. In "legalese," an award based on future income is characterized as compensation for the injured person's "loss of earning capacity" or "diminished earning capacity."

"Pain and Suffering"

While economic losses like medical bills and lost income are fairly easy to calculate, "pain and suffering" isn't so easy to quantify. But this category of damages plays a big part in determining how much you can expect to receive in an injury case, and can be a crucial component of an asbestos/mesothelioma lawsuit. Pain and suffering is often broken down into two types:

  • Physical pain and suffering includes the discomfort resulting from your asbestos-related health problems, including any pain caused by the course of care necessary to properly diagnose and treat your condition.
  • Mental pain and suffering can be viewed as the subjective psychological impact of your health problems. This includes anguish, emotional distress, loss of enjoyment of life, fear, anger, humiliation, anxiety, shock, sleeplessness, and other negative effects.

Learn more about pain and suffering in a personal injury case.

One thing to note here is that in general, a plaintiff who is able to file a lawsuit against an existing, solvent company is likely to receive significantly more than a claimant who is limited to making a claim with an asbestos trust fund. That's due to a whole host of factors, the biggest being the "payment percentage" limitation we outlined in the previous section. With a lawsuit, your $100,000 in damages might represent the lower end of what you can expect to receive in settlement. In a trust fund claim, your $100,000 in damages will be reduced according to the fund's current payment percentage.

When plaintiffs file asbestos claims, defendants regularly offer settlements based on what's known about the particular disease at issue. This is especially true with claims made through trust funds set up by bankrupt defendants. The value of claims made through these funds is usually based on a "payment schedule" that takes a number of factors into consideration. Payment is typically lowest for mild asbestosis, and highest for mesothelioma, but other factors (many fund-specific) come into play.

Case/Claim Value and Preexisting Conditions

We discussed above how preexisting health conditions can come into play in an asbestos case. Even if you can prove that your asbestos exposure made your preexisting health problems worse, it can be a challenge to establish the precise amount of damages you should receive. The biggest difficulty comes when trying to determine your more subjective and intangible damages, such as "pain and suffering." It's hard enough to calculate these losses when there is no preexisting condition. But when the earlier condition is aggravated by (or is very similar to) the harm resulting from the defendant's wrongdoing, the task becomes even more challenging. And whatever calculations you come up with, you can be confident the defendant will argue that your final figure is off the mark, or even excessive.

Damages In Wrongful Death Lawsuits/Claims

So far we've discussed the concept of damages in an injury lawsuit or trust claim filed by an individual who has been diagnosed with an asbestos-related illness. But some of these lawsuits and claims are brought by family members whose loved one's death was caused by exposure to asbestos. These "wrongful death" claims are somewhat unique, not least in terms of the kinds of damages that are available. The specifics depend on a particular state's wrongful death laws, but in general family members can receive compensation for:

  • the deceased loved one's "pain and suffering" arising from their asbestos illness (sometimes called a "survival" claim).
  • cost of medical treatment made necessary as a result of the deceased person's asbestos illness prior to death
  • funeral/burial costs
  • loss of the deceased family member's expected income
  • loss of any inheritance affected by the family member's death
  • loss of the family member's guidance and nurturing, and
  • loss of the family member's love and companionship (also known as "loss of consortium."

Learn more about wrongful death lawsuits.

Do I Need a Lawyer for an Asbestos Lawsuit/Claim?

The short answer here is almost always "yes." There's no substitute for having an experienced lawyer on your side at every stage of your asbestos lawsuit or asbestos trust fund claim. A lawyer will have the expertise, the professional connections, and the negotiating skills to put your best case together and get the best outcome for you. That means:

  • detailing the extent of your illness with medical records
  • documenting your work history through investigation, and
  • advocating for your full and fair compensation.

Keep in mind that most lawyers will not start an asbestos lawsuit until they have confirmed that a possible client has an asbestos-related disease. Some attorneys will provide screening and arrange for testing like a physical examination and preliminary X-rays for potential clients who have a history of exposure to asbestos. Other times attorneys will order medical records and existing X-rays, CTs, films, and pathology specimens from the person's doctor or hospital and send the material to medical experts for evaluation.

If you're thinking about filing a lawsuit over harm caused by asbestos exposure, your best first step might be to discuss your situation (and your options) with an experienced attorney. Learn more about how a lawyer prepares an asbestos-mesothelioma case. When you're ready, you can use the tools right on this page to connect with an asbestos/mesothelioma lawyer in your area. Answer a few questions and you could be eligible for a free case evaluation.

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