Asbestos was perhaps the largest mass tort of all-time, and the damage is still being realized. Just by the end of 2000, over $54 billion had been paid out in asbestos claims, and the number has multiplied exponentially since then. Tens of billions of dollars more will likely be paid out in the future. In the end, the total tab for mesothelioma lawsuits will reach into the hundreds of billions of dollars.
If you or a loved one have been sickened by asbestos exposure, you are wondering how this all impacts you. The short story is that you have a right to financial compensation. How you get it all depends on who the defendant is and how your family is impacted by your situation. The first thing you need to do is contact a mesothelioma lawsuit lawyer.
Liability Is Pretty Much Settled in Most Asbestos Claims
Filing a lawsuit after being diagnosed with mesothelioma can be difficult, even when liability is pretty well settled. The court process can take its toll on a family that is dealing with the illness or death of a loved one. If you have been diagnosed with this aggressive disease, you may not want to spend what may be your remaining time dealing with the court process. In addition, while most mesothelioma cases are successful, there is always a chance that the lawsuit may be fruitless.
There are some defendants who have already established mesothelioma trust funds. They have either entered into a global settlement of all their mesothelioma claims or had transferred assets to these trusts as a condition for their bankruptcy. These trusts are already funded to pay mesothelioma claims without the need for a lawsuit.
Many Companies Went Bankrupt Under the Weight of Asbestos Claims
When the general public learned how bad the asbestos crisis was, it caused an outpouring of lawsuits. Families who saw their loved one sickened or die from mesothelioma immediately looked to be compensated, as was their legal right. The rush to file lawsuits took down many old-line companies that simply did not have the money to pay mass torts. Not only were they inundated with present lawsuits, but they had no idea of the extent of their future liability. Mesothelioma is a disease that takes decades to develop, so these companies had no idea what they would be facing far into the future.
Congress wanted to act to protect both the companies and potential plaintiffs, especially when businesses were declaring bankruptcy because of asbestos liability. Without a solution, families with sickened loved ones could be left holding the bag. In turn, companies would not be able to continue operating, and the bankruptcy would mean that families have to fight for their limited share of the corporate assets.
Trust Funds Were Established as Part of Bankruptcy Proceedings
Mesothelioma trust funds are created through the bankruptcy court. They are used when a company is filing Chapter 11 bankruptcy. There are two types of bankruptcies that companies go through:
- Chapter 7, which involves a complete liquidation of the company
- Chapter 11, which is a reorganization that allows the company to keep operating
In Chapter 7 bankruptcies, there is a mad scramble for all of the creditors to get their hands on the companies assets because there is no company after the process is complete. Chapter 11 involves a lessening of the debt load. However, Congress recognized that plaintiffs who have been sickened deserved to be taken care of as a condition for giving these companies bankruptcy protection.
Large Companies Funded the Trusts with Billions of Dollars to Pay Claims
As part of the bankruptcy process, large companies began trust funds of billions of dollars that they set aside to pay future claims. First, the bankruptcy court and the companies were required to rigorously estimate their approximate present and future claims. They were not allowed to just haphazardly estimate how much money they may owe. Here are some of the major trusts that were established and the amount of money that was in them at the beginning:
- S. Gypsum – $3.9 billion
- Pittsburgh Corning – $3.5 billion
- Owens Corning – $3.4 billion
- R. Grace – $2.9 billion
- DII Industries – $2.5 billion
These trust funds are not administered and managed by the companies. The companies have nothing to do with the process once the money is placed in the trust. Instead, the trusts are managed by the Department of Justice. There is a trustee appointed who both manages the assets and pays out claims. The trustee may invest the money, but must ensure that there is enough money to pay the claims.
Asbestos injuries are complicated in that they gradually develop over time. They almost never happen immediately. Instead, they take decades to materialize. Plaintiffs diagnosed with mesothelioma today may have been exposed in the 1970s and 1980s, and the asbestos fibers remained in their bodies for decades, gradually inflaming and irritating their lung linings.
Types of Injuries that Could Be Paid By These Trust Funds
Note that, while we are referring to these as mesothelioma, these trust funds cover all asbestos-related injuries. Mesothelioma is just the most common asbestos injury. These trusts funds could also cover:
- Lung cancer
- Ovarian cancer
- Pleural plaques
- Pleural thickening
With a mesothelioma trust fund, the money is already set aside. Most mesothelioma plaintiffs have to go through the lawsuit process to get the money that they legally deserve. Even though an overwhelming percentage of the cases will settle before trial (mesothelioma trials are extremely rare), plaintiffs must still go through the effort of drafting a complaint and entering into settlement negotiations with the defendant. These negotiations can be lengthy. When a plaintiff files the case when they are living, they do not want to spend their remaining quality time worrying too much about the legal process.
There is still money available in these funds, and there will need to be for some time. Claimants are still being sickened now from asbestos exposure that happened decades ago. There is still over $30 billion left in the 60 existing trust funds. This is after these funds have paid out over $20 billion of claims since they have been established.
The mesothelioma trust funds spare plaintiffs from having to engage in the lawsuit process. The companies are not fighting the issue of liability. In fact, they are completely out of the picture. They have funded the trust fund as a condition of their bankruptcy and have left it entirely to the administrator.
To make it perfectly clear, if the company has declared bankruptcy and established a trust fund, you cannot sue the company. You must file a claim with the trust fund. That is your only way of being compensated.
How to File a Claim
The first thing to know is that you do not have an unlimited amount of time to file your claim. Each trust has its own timeframes that function like a statute of limitations. As soon as you or a loved one have been diagnosed with mesothelioma, you should contact an attorney to explore the possibility of filing a claim.
Even though liability is not an issue, you still need to gather and present evidence. You need to show both your eligibility for payment and your damages. You should look at this like any other personal injury claim in terms of presenting documentation. Here, you would need the following for your claim:
- Proof of your mesothelioma diagnosis
- A statement from your doctor confirming your diagnosis
- A medical opinion that asbestos exposure was the cause of your mesothelioma
- Evidence about your employment history connecting you to asbestos exposure
Damages You Can Receive from a Trust Fund Claim
Your entitlement to damages is the same as it would be in any other personal injury case. You would still be allowed to recover for economic and non-economic damages. Here are some of the elements of damages in mesothelioma trust fund claims:
- Your past and future medical bills – in a mesothelioma case, these can add up to hundreds of thousands of dollars
- Pain and suffering
- Lost wages for the victim and family that must take time off from work to care for them
- Emotional distress
- Loss of enjoyment of life
There are a number of other factors that would impact what the claim is worth. Essentially, since mesothelioma is almost always fatal, the claims administrator is valuing a human life. This means that they will consider things like age, marital status and the number of dependents. After considering everything, the claims administrator will come up with a number.
The Three Different Basis of Review of Your Claim
Before they get to that point, there are a number of ways in which they could consider your claim. They are:
- Expedited – How much time it takes could depend on your diagnosis. If your situation is particularly bad, the claim can be reviewed on an expedited basis. The considerations above do not apply to expedited claims. Instead, there is a fixed amount available from each trust fund. The amount depends on the trust fund and the amount of money available. You will have your money faster, but the amount may be more or less than your actual damages.
- Individual – This level of review is the process described above. The claims administrator will consider your own specific situation in setting the dollar value of the total damages. Then, they will adjust it as described below to reach your total payment.
- Extraordinary – This is a rare form of review for those who meet the requirements for an expedited review, and they have a more direct sort of claim against one trust fund or product. Extraordinary review allows you to challenge the amount that you receive if you do not feel that it is enough. If no agreement can be reached with the trust fund, you may file for arbitration.
How the Payout Percentage Affects Your Claim
Unfortunately, you will not receive the full amount that you are due for your injury. Mesothelioma cases usually involve wrongful death claims. Even though the plaintiff is older, these cases would have damages reaching into the seven figures if the case went to court. This does not happen in mesothelioma claims.
Instead, there is a payout percentage, recognizing that you will get a part of what you are due. We understand that this is disappointing for families who expected and deserve more. This is the tradeoff for ensuring that companies that went bankrupt did not completely get out of their obligation to pay legal compensation to people that they harmed with their negligence by exposing people to asbestos.
The payout percentage depends on the trust fund against which you are filing a claim. They vary widely based on the amount of money that was deposited into the trust fund in the first place. Obviously, the better endowed trust funds will have higher payout percentages.
Companies like Halliburton have payout percentages of 60%, while others have payout percentages under 5%. The average is around 15-25%.
However, if you meet certain criteria, you may qualify for an expedited review of your case.
Average Payouts for a Mesothelioma Claim
Because the payout percentages vary widely, the average mesothelioma trust fund payment also can vary. If you are filing a claim with one of the better funded trusts, your payout may reach into the six figures. You may be able to file claims with multiple trusts. The law gives you that right and ability.
Mesothelioma trust fund payouts can vary greatly. Payouts have been as low as $10,000 and have reached higher than $1 million. One study placed the average trust fund payout at $180,000.
Should You Sue or File a Claim?
In some cases, you have no choice but to file a claim with the relevant trust fund because the company has been through bankruptcy, and they cannot be sued. In other cases, you may have a choice whether to file a claim against a trust fund or pursue a lawsuit against another company. If you receive a trust fund award and then later win a lawsuit, your verdict will be reduced by the amount that you receive from the fund.
Many families want to get their money more quickly because their loved one is dying, and they need it. Trust funds offer a quicker route to the money. Then, your lawyer could determine whether you have a possible lawsuit against someone else too. They could also review your history of exposure to see if you have a claim against another of the 60 trust funds. If you get money from one fund, it does not impact your claim against another fund.
Why You Need a Lawyer
Many people question why they need an attorney if liability is already decided. How you present your claim to the trust fund matters. The trustee will evaluate the information that you present in order to decide your compensation. As you see above, it is not as simple as filling out a claim form and submitting it.
In addition, you may be eligible for funds from more than one trust. Your lawyer would help you figure out where else you may have a claim to maximize your recovery.
In addition, there is a possibility that your initial claim may be denied. Perhaps you did not meet the qualifications or did not present the right documentation. Your lawyer will submit the information the right way to minimize denials for failure to meet technical requirements. If, for some reason, your claim is denied, your lawyer would represent you at an individual review of your claim.
Do You Have to File a Claim, or Can You Still Sue?
If the company that would be legally responsible for your mesothelioma claim has gone through bankruptcy and established a trust fund, you are obligated to file a claim if you wish to receive compensation. Even though a trust fund claim will pay less than lawsuit damages, it is the only way that you can be compensated. The companies were relieved of liability for future claims in exchange for setting aside the money in the trust fund.
Families can still file a claim if their loved one has already died, provided that they fall within the statute of limitations provided by the trust fund operating procedures. Then, they can add wrongful death damages to the list for which they are seeking compensation.
When you or a loved one have been exposed to asbestos and have been diagnosed with mesothelioma, you must go through an entire legal process. The first thing is to figure out exactly where you have been exposed. Everywhere you were exposed could be a possible defendant in your case. You should review your entire work history with your attorney to try to maximize the number of defendants because your claim could be limited by trust fund procedures.
If you or a loved one have been exposed to asbestos and have suffered any injury, you have the right to file a legal claim. You should contact a mesothelioma lawyer today to learn more about your legal rights and the best way to receive compensation.