Mesothelioma Lawyers Blog
Mesothelioma lawsuits in Boston are significantly different from many other types of personal injury lawsuits and products liability actions. One of the major reasons deals with when the injury is discovered and when a suit can be brought. In most personal injury cases, the statute of limitations begins to run as soon as the injury occurs. The specific statutes of limitations for various civil actions are found in Chapter 260 of the Massachusetts General Laws (M.G.L.).
For example, pursuant to Section 2A of the M.G.L., a tort action for a personal injury lawsuit filed in Boston must be brought within three years of when the cause of action arises, which is usually the time of the injury or onset of the illness.
Discovering a Cause of Action in Boston Mesothelioma Lawsuits
In a mesothelioma case, the injury will likely have occurred decades before the prospective plaintiff every becomes aware of a problem. This is because mesothelioma tumors develop in the human body long after exposure. When a person is first exposed to the deadly asbestos fibers, they are likely to become trapped in layers of protective tissue, and remain in the body since they are so sharp and will not break down during the course of a plaintiff’ lifetime. Essentially, these fibers will not break down for fire under normal atmospheric pressure, extreme heat, electricity, or even caustic chemicals.
It is this natural resistance to most harmful elements which made asbestos seem so useful as an insulation material. This is of course why asbestos was first mined from the earth and used in so many applications. Once chemistry became more advanced, with the invention of more powerful microscopes capable of looking at things at a molecular level, it became known asbestos would not react with most other substances making it practically inert. This allowed it to be used as a chemical bonding agent in all types of glues and industrial adhesives. While these are all of the positive attributes of asbestos, the now well-known issue is will react with tissue in the human body and cause cancer cells to form. Eventually these cells will metastasize into the deadly form of cancer that is called malignant mesothelioma. It gets its name from the tissue in which tumors normally develop, which is known as mesothelium.
This process takes a relatively long period of time to occur so it is often between two and five decades before the tumors have developed to a size and stage where patients first notice symptoms. When they do finally go to the doctor, they are likely informed they do not have a very good prognosis. There are various treatment options, but even in ideal circumstances, they will only slow the development of malignant mesothelioma – they will not cause malignant mesothelioma to go into remission in the clear majority of cases unless it is caught very early. It is rarely caught early in its development since patients do not develop symptoms as discussed above.
Defendants Would Like to Argue a Cause of Action Occurred at Time of Exposure to Asbestos
For reasons we will soon discuss, defendants in asbestos lawsuits would like to argue the injury actually occurred when a plaintiff was first exposed, and concluded at time of last exposure. Under this view, if a plaintiff was exposed 50 years while working in a Boston shipyard, they would have waited far longer than the three years allowed in a personal injury action. While these cases are not typical personal injury actions, they are generally filed under a theory of negligence. This makes them akin to a personal injury action filed in Boston even though we are dealing specifically with a Boston mesothelioma case.
Fortunately, there is what is referred to as the discovery rule. Under the discovery rule, a statute of limitations in a of action which cannot be reasonable known by a plaintiff until a later date, after the statute of limitations has likely run, will not prevent a lawsuit from being brought as the time will be extended. If a patient did not know about the cause of action during the three-year period, the applicable statute of limitations will not start running until the diagnosis, and then he or she will have three years from date of diagnosis to file a claim.
For this reason, if you have been diagnosed with malignant mesothelioma, you should speak with an experienced Boston personal injury lawyer as soon as possible to see if you have a valid claim. You should also not be worried about the cost of a conclusion because it should be free, and in the clear majority of these cases, they are handled on a contingency fee basis so there will also be no legal fees or other costs due unless plaintiff is successful in settling the case of obtaining
Duffy v. CBS Corporation
In Duffy v. CBS Corporation, the issue of when an injury arises was extremely important, as this was a mesothelioma case were initial exposure occurred 20 years prior to a suit being commenced due to the issues discussed above. In that jurisdiction, there is what is known as a statute of repose which puts a 20 limitation on the filing of most personal injury actions. A statute of repose is similar to a statute of limitations, but it is usually much longer. There is a 20-year statute on certain claims filed in Massachusetts, but it does not necessarily apply to asbestos cases.
Prior to trial, the court dismissed plaintiff’s claims because the injury occurred in the 1970s and the case was not brought in a seemingly timely manner. While plaintiff attempted to argue the discovery rule would apply, trial judge, did not agree this applied when dealing with the statute of repose instead of the statute of limitations. On appeal, however, the court ruled in favor of plaintiff, but it did not do so based upon the discovery rule. Instead the court reasoned since the statute of repose had not been enacted when the plaintiff’s actual 20-year period, it should not be retroactively applied. For this reason, the case was reversed and remanded consistent with its opinion.
If you or a loved one is diagnosed with mesothelioma in Boston, call for a free and confidential appointment at (617) 777-7777.
Additional Resources:
Duffy v. CBS Corporation, March 28, 2018, Maryland Court of Appeals
More Blog Entries:
Montana Settles Asbestos Claims for $25M, Feb. 19, 2017, Boston Mesothelioma Lawyer Blog