Asbestos can remain in the body, seemingly dormant, for a long period of time. As a result, it may be very near the end of the victim's life before it is clear that exposure to asbestos caused a life-threatening disease. This raises an important question for victims and the families of victims: if the victim predeceases a lawsuit for being exposed to asbestos, what recourse does the victim's family have?
Wrongful Death Claim
A claim of wrongful death alleges that the death would not have occurred were it not for the negligent actions of the defendant. In mesothelioma or asbestos-related claims, the defendant is often the company the victim worked for. It is important to note that it is irrelevant that the exposure may have been unintentional. Another consideration, particularly because of the long period in which asbestos-related injury may not appear, is the statute of limitations. It is critical to determine if the statute starts from the time of the misconduct or from the date of the discovery of the disease. The statute of limitations varies from state to state.
In a wrongful death claim, a representative will file suit on behalf of the victim's survivors, who are called the "real parties in interest." The representative is typically the executor of the estate. In all states, immediate family members, such as spouses and children, are considered the real parties in interest. Other individuals, such as more distant relatives or domestic partners, may also be considered the real parties in interest, but this varies by state.
Types of Damages
There are generally three types of damages that may be recovered in wrongful death cases: economic, non-economic, and punitive. Economic damages can be thought of as the tangible or actual financial costs suffered by a victim and his or her survivors. These may include such items as the victim's lost expected future earnings or the medical and funeral expenses.
Non-economic damages can be more difficult to determine, but may have higher value than economic damages. These often include the mental anguish or pain and suffering of survivors. Punitive damages exist as a way to punish the defendant for bad conduct. However, in many states punitive damages are not available in wrongful death claims.
The process for determining the damage amount can be very complex. It is common for expert witnesses with backgrounds in economics, finance, or actuarial science to be used. These experts will testify as to what they believe the value of the damages should be.
Mesothelioma and Asbestos Attorneys
If you believe a loved one died as a result of exposure to asbestos, it may still be possible for you to be compensated for your loss. However, it is important for you to speak to an attorney as soon as possible.