Mesothelioma cases are unique torts in the sense that a cause of action does not arise for many years after initial exposure to deadly asbestos fibers. All courts impose some time limit on virtually every type of case – both criminal and civil, and mesothelioma lawsuits are no different. However, the question of how long you have to file your mesothelioma lawsuit will depend on a number of factors. Primarily, the court will want to know when you knew or should have known there was a potential your illness was causally linked to asbestos exposure.
Like Massachusetts, Maryland imposes these time limitations as well, though there are some differences. According to a recent news article from Forbes, there are currently approximately 30,000 mesothelioma cases awaiting trial in Maryland. In that state, the highest court is slated Dec. 1st to hear an appeal of a 2015 decision regarding the 20-year statute of repose in an asbestos injury lawsuit.
If the court affirms the appellate ruling, thousands of these people whose exposure occurred prior to the 1970s will have their claims dismissed, per the 20-year statute of repose. While 20 years may be ample time to file litigation in most injury cases, mesothelioma cases differ because of the long latency period of the disease.
Statute of Limitations in Mesothelioma Lawsuits
As our Boston mesothelioma injury lawyers can explain, a statute of repose is similar to a statute of limitations, but there are some distinctions. A state of limitations is a time in which you have until you are no longer allowed to file a personal injury claim. The statute of limitations for personal injury cases in the Commonwealth, pursuant to Chapter 260, Section 2A is three years. This means that if you do not bring a case within three years of the time injury occurred, you will be time-barred from bringing the claim.
There are however, exceptions to the rule where the statute of limitations is put on hold (tolled) based upon a certain condition such as being a minor or being physically or mentally incapacitated. Once the incapacity is lifted, you will have three years to file such a claim.
A statute of repose, meanwhile, sets the deadline for filing a lawsuit bases the deadline on a specific passage of time (20 years from the date of exposure) or the occurrence of a certain event (one reaches a certain age), rather than basing merely on when a potential plaintiff suffered harm. It’s most often used in cases of product liability, construction defects and medical malpractice.
The Discovery Rule in Boston Mesothelioma Lawsuits
In the case of mesothelioma, the actual injury occurs when the asbestos fibers are inhaled, but it takes typically between 20 and 50 years for the plaintiff to become noticeably sick. The average is 40 years. Once a plaintiff develops noticeable symptoms like chest pain, shortness of breath or abominable pain, and goes to a doctor to learn they have malignant mesothelioma, they are often told they only have a short period of time left to live. In these cases, there was no way a plaintiff would feasibly know they had mesothelioma until decades after the tortious conduct occurred. However, due to the discovery rule, the statute of limitations is tolled until the first reasonable opportunity to discover the mesothelioma.
Gore v. Daniel O’Connells’s Sons, Inc.
In Gore v. Daniel O’Connells’s Sons, Inc., the Massachusetts court allowed for such a discovery rule in a cases so long as the occurrence of the injury condition was inherently unknowable. In this case, the plaintiff was suing for breach of contract and argued that the breach was not discoverable until much later than the date on which the breach was said to occur. In the context of contracts case, the breach might have occurred when the contract was exectuted, but the breach would not always be obvious to the plaintiff at that time. It will often be the result of a condition subsequent that demonstrates the flaw in the contract.
Statutes of Repose
To expand on the earlier explanation, the statute of repose is not a time for when you must file your claim, in many jurisdictions. Rather, it is the time by which the claims actually be adjudicated, meaning a trial must be held. The problem faced by plaintiff attorneys in resolving the thousands of pending mesothelioma lawsuits in Maryland is that while cases have been filed, the courts have no way to handle all of the matters before the statute of repose runs out. This means anyone who was exposed to mesothelioma prior to 1977 is facing the automatic dismissal of their cases – a potentially a harsh and unfair result whereby their claims are dismissed though no fault of their own.
The Maryland Court of Appeals, which is that state’s supreme court, is set to hear a case that would allow the cases to still be pending despite the statute of repose if the plaintiffs are successful. Another solution the plaintiff’s are trying though counsel is to have the cases consolidated. This would mean that tens of thousands of malignant mesothelioma lawsuits are going to be consolidated into a single lawsuit. This often happens in multi-district products liability actions, and it can have the result of getting the parties to settle since so much is at stake in a single legal action.
This is however, a very complex process where steering committees must be established and certain members of the class must be certified. There are representative plaintiffs and a certain number of the class must agree to a settlement. While this is typical in dangerous drug lawsuits, asbestos cases often involve different defendants and injuries that occurred in different years and at different places.
This class action cases can be much more complex than a traditional personal injury lawsuit so the best thing a plaintiff can do is speak with an experienced Boston products liability lawyer who has handles not only mesothelioma cases, but cases involving massive multi-district litigation (MDL).
On the other hand, the defendants are arguing that plaintiff attorney did not take of advantage of thousands of trial dates, and this attempt to consolidate the asbestos cases is an attempt to “goad” the defendants into reaching a settlement. Regardless of whether this argument holds any merit, we do know that it’s been proven many asbestos manufacturers knowingly exposed countless victims to these deadly fibers and did so to make money knowing they would not fact any litigation for many years to come, if ever. They traded short-term profits at the risk of workers’ lives and now must be held accountable.
If you or a loved one is diagnosed with mesothelioma in Boston, call for a free and confidential appointment at (617) 777-7777.
Peter Angelos, Facing The Loss Of Thousands Of Asbestos Lawsuits, Wants Lawmakers’ Help, November 13, 2017, By Daniel Fisher, Forbes
More Blog Entries:
Montana Settles Asbestos Claims for $25M, Feb. 19, 2017, Boston Mesothelioma Lawyer Blog