Podcast Episode #1
Mesothelioma FAQs by Robert Shuttlesworth
Interviewer: Hi. I’m here with Robert Shuttlesworth of Shrader & Associates. Robert, could you please give us a brief background on your experience working with mesothelioma victims?
Robert Shuttlesworth: Sure. I’ve been working with mesothelioma cases for about 10 years, ever since I got out of law school. Before that I was a cancer scientist at MD Anderson Cancer Center and came into contact with some victims in that regard and decided to kind of make it my life’s work.
Interviewer: Great. I’m going to be asking you questions, some frequently asked questions that mesothelioma victims may have. When do I need to file a mesothelioma lawsuit? Is there a statute of limitations? What if I’m suing for the loss of a loved one?
Robert: Generally speaking, there’s a statute of limitations in every state that would dictate when a claim would need to be file. Some states are one year, some states are two years. Some states can go up to four and five and six years. Really that just depends on where you lived when you were diagnosed. And, two, where you were exposed when you were working around asbestos. So a lawyer would be the one best to ask exactly what specifically the statute of limitations is in your case. If the person is still living, it kind of runs from the date that you associate asbestos exposure with the mesothelioma cancer. Most states say that if you passed away there’s a hard line that it’s going to be one or two years from the date of death.
So to kind of answer the question, most of the time the statute of limitations is two years from the date of diagnosis. And almost all the time it’s one to two years from the date of death.
Interviewer: What if I can’t afford an attorney?
Robert: Most attorneys, including myself, in these types of lawsuits work on what they call a contingency fee basis, meaning that you never actually have to pay the attorney you hired until such time that a settlement or a verdict or some sort of money has been recovered in your case. Lawyers are expensive. A defense lawyer, for example–and anybody who’s been through a divorce or a criminal charge maybe, it’s $300 to $600 an hour. Most plaintiffs can’t possibly afford that number up front and pay a lawyer as they go. So the exchange is that the attorney is going to take a fee out of whatever is recovered on the case.
Interviewer: I filed and received compensation for an asbestos lawsuit, now that I have mesothelioma can I file suit again?
Robert: Generally speaking, the answer is yes. Most states have what they call a two disease rule, meaning that you can file once for a non-malignant form of asbestos disease such as pleural plaques or asbestosis or difficulty breathing. Then you can also sue again if you develop a lung cancer or a mesothelioma. So there can be two lawsuits. The only difference between them is that if you did file a case years ago for asbestosis and then later developed mesothelioma, the defendants in the mesothelioma case will have a credit if they were sued also in the asbestos case.
So if they had a settlement in the first case and they settle again in the second one, they’re going to discount whatever they paid the first time.
Interviewer: What role do I need to fill in a mesothelioma lawsuit?
Robert: Depending on who the plaintiff is, if it’s the person with mesothelioma, that person is the most critical witness in their case. Only the person with the disease who actually worked around asbestos knows specifically where they were and what they were working around. So the best thing is to be your own best advocate, is to explain how you were exposed to asbestos, where you were exposed to asbestos, and when you were exposed to asbestos. A person who’s filing a claim based on a loved one who is either too sick to talk and testify or has possibly passed away, the role in that is to be able to help identify where the loved one maybe have been during his life when he was working and to try to remember and conjure up old relatives and old friends that might have been working with the decedent.
So the trick in any asbestos case is it’s not enough just to prove that you have the disease, you have to prove which products you were specifically exposed to when you were working.
Interviewer: Will I have to go to trial?
Robert: The answer to that question is maybe. But let me explain it this way, most cases, regardless if it’s a breach of contract, a hit and run, a fender bender, or even a DWI of some criminal nature, most cases do not go to trial. They reach a settlement or a plea bargain. In an asbestos case it’s really no different. If a reasonable settlement offer is made, the client is the one who gets to determine if they go to trial. Sometimes the defendants take a position that they’re just not going to pay the claim at all. Again, it’s the client’s decision, but in those situations it’s possible that you will actually have to go to trial. But 98 percent of the time in almost any type of case that is filed, you do not have to go to trial.
Interviewer: OK. And what if I pass away before my claim is settled?
Robert: If you’re the person with mesothelioma and you pass away, the claim is treated as if it was a piece of property, not different than the house or a car or some land. If you have a will the will will dictate where your claim goes. If you do not have a will, the state that you live in when you die has what they call “intestate succession laws” which dictate who the claim belongs to. In addition to that, most states have a wrongful death statute which allows the surviving spouse and the surviving children to continue the case in their own name. So if you were to pass away before your claim is settled or before it goes to trial, the people who you want your surviving wife and children step into your shoes and continue the case as if you had not passed away.
Interviewer: If the company responsible for my asbestos exposure has filed for bankruptcy does that mean I can’t recover compensation in a mesothelioma law suit?
Robert: No, most companies who have gone bankrupt through asbestos litigation have established bankruptcy trust funds for asbestos victims to file claims against. There are two types of defendants in these kinds of cases, those that are solvent, which you can still sue in a court system, and those who are bankrupt that you cannot sue any more in a court system. The ones that are bankrupt have a claims process and your attorney will file your claim with that trust and it operates as its own mini individual law suit. The only difference between the two scenarios is the bankrupt defendants have a set amount, a top amount, that they can actually pay on a claim. That was decided years ago by a bankruptcy court judge.
The solvent defendants who you litigate in court, the people who determine what those claims are worth is the jury.
Interviewer: What kind of compensation can victims recover in mesothelioma or asbestos law suits?
Robert: That number varies significantly based on a lot of different factors. They’re the same kind of factors that would go into any personal injury law suit. Generally speaking, in an asbestos case, the more companies you can identify that exposed you to asbestos, the greater the value the potential claim holds. Things of age, things of minors that are still living in the home. These are all little factors that get brought in. If you’re still working and then now you can’t work because you have cancer. These are all different criteria or damage elements that get factored in: living, nonliving, surviving spouse, not having a surviving spouse, having a job, not having a job, age. And things of this nature all evaluated, ultimately by a jury in a lawsuit. But they’re also evaluated differently by the various defendants that may be wishing to settle.
Interviewer: I recently lost a spouse to mesothelioma. Can I file a lawsuit for compensation?
Robert: Yes. If your spouse passed away from mesothelioma, generally speaking you’re entitled to step into that person’s shoes and initiate a claim in your own name.
Interviewer: What is the difference between Shrader & Associates and other mesothelioma lawyers?
Robert: Shrader & Associates is a firm that’s specifically set up to litigate our client’s cases. We do not refer claims out. If you’re our client then we’re going to be your lawyers from the time that we meet to the time that the final checks are cut, or a trial or an appeal or anything of that nature. We handle all of that. There are a number of different law firms out there, and many of them you’ll see advertising on TV, that will talk to you at the beginning and then you’ll never hear from them again. They’re what I call referral firms. They will take your case and then, years later, you’ll get a call from a law firm you had no idea that was doing all the work in your case.
So the difference between us and them would be if we’re your lawyers we’re always going to be your lawyers. We’re going to treat you more like a member of our family than a number.
Interviewer: What can I expect during a mesothelioma lawsuit? How much will I be involved and about how long the process usually takes?
Robert: Generally speaking, the client can be as involved as they want or as little involved as they want. But the initial part of the case is pretty much going to be what the client remembers. So from the time that the phone call is made and we’re sitting there talking to each other, going over your work history, going over your disease process, the initial work from the client is much higher at the beginning than it is at the end. So after some interviews and setting who we should file a case against, there is not a lot for the client to do at that point. That’s mostly law work at that point, filing the pleadings, arguing discovery, taking depositions, reviewing documents. Things of that nature do not require a lot of client involvement unless it is something the client wants to do. It’s the client’s lawsuit, they’re the ones that get to determine how much or how little they work on it.
So at the beginning of a case that is when it’s going to be incumbent on the client to spend the time talking with us and gathering the information on their end, looking through old files, see if they have any old pictures, placing phone calls to loved ones and old coworkers to see if they remember anything. These are things that help speed the case up.
After that initial fury, there’s not a lot of involvement on the client’s end unless that’s something the client really wants to do.
Interviewer: If I was exposed to asbestos while serving in the Navy, will I need to sue the Navy for compensation?
Robert: It’s actually impossible to sue the Navy for almost anything. The federal government, like most state government, have sovereign immunity, meaning that they don’t allow you to file suit against them, really, unless it involves something much different than asbestos exposure. What we do in a situation where somebody was exposed in the Navy is all the various parts on that Navy ship were actually manufactured by a company that’s not the US Government. So the investigation is to try to figure out which of those products were on that particular ship or on that base or wherever the Navy client may be and to try to pursue those companies in the court system.
Interviewer: If I have mesothelioma can I receive worker’s compensation or disability benefits?
Robert: Yes, you can. Worker’s compensation and disability benefits are separate claims that don’t involve the court system. And both are dictated by state or federal law. Worker’s compensation is a scenario where you’re going to sue an insurance company or at least seek compensation from an insurance company from somebody you used to work for. The system specifically is designed to compensate lost time from work. So if you’re a retired person it’s difficult to prove that the cancer that you now have is keeping you from working if you were already retired.
Likewise in the disability area, most people who come down with mesothelioma are of a retirement age and therefore they’re nearing Social Security benefits anyway or they’re already on Medicare. So there’s not a lot of disability to claim for in those regards. You’re not missing time from work.
That being said, some people do miss time from work or are of a working age and those claims are available for people who can prove that they’re missing work because of the cancer.
Interviewer: If I’ve been diagnosed with mesothelioma what should I be focusing on?
Robert: Well, first of all, you’ve got a very serious disease and you need to focus really on three aspects of your life. There’s the medical end that needs to be considered. You need to be your own best health advocate, get your doctors, talk to your doctors, follow their advice, ask and inquire about treatment options and things of that nature. There’s certainly a spiritual and family element to it. Any time that there’s a disease like this, the family needs to come together for support. And the person that has the cancer, the spouse, the children, it changes everybody’s life. So there needs to be a focus on the family.
There also needs to be a focus on the legal end. You need three different types of teams on your side. You need your doctors. You need your family. And you need your lawyers seeking to help compensate everybody for the fight ahead.
So if I or a loved one had mesothelioma I would focus on the medicine, my family, and finding the right law firm for me.
Interviewer: Is there anything specific I should be looking for in a law firm?
Robert: Yes. You need to ask the right questions of your lawyers. First of all, you need to know if this particular law firm that you’re talking to is one that’s going to litigate your case individually or if they’re going to lump you into a bunch of other clients that have the similar disease. I’m a big advocate and a big believer in every case is different and every case rises and falls on its own merits. I would not want to be tied into somebody else’s lawsuit in the hope of tagging along, that maybe I’ll get a settlement that way.
You want a law firm that’s going to be small and energetic. And every time you call you’re getting a hold of the lawyer and not five paralegals. You want a law firm that’s responsive to your needs, to your questions. And most of all you just want to be able to know that your law firm is really on your team and is really advocating for you above anybody else.
Interviewer: If any of our listeners are seeking additional information, they can reach Shrader & Associates at 1.877.637.6347 or online at yourmesotheliomalawfirm.com