In most personal injury lawsuits, the plaintiff (the person bringing the case) has personally suffered physical harm due to someone else's negligence or wrongdoing. In a wrongful death lawsuit, the plaintiff(s) is/are certain family members who have suffered damages as a result of the death of the deceased person. In this article, we'll discuss wrongful death in the context of an asbestos case.
Who Can File a Wrongful Death Claim?
Wrongful death heirs are determined by state law, but typically include:
- surviving spouses
- unrelated dependents (for example, minor stepchildren)
- registered domestic partners, and
- parents, siblings, nieces and nephews
Adult non-dependent stepchildren who have not been adopted usually are not heirs, no matter how close they were to the deceased person (the "decedent"). On the other hand, biological children who were not adopted by someone else are usually considered heirs even if they were estranged. If the decedent had cut children out of his or her will, those children are still able to bring a wrongful death claim.
There is also usually a claim made on behalf of the decedent’s estate. A case can be brought regardless of whether or not the decedent had a will. If a probate court has appointed a Personal Representative (who is not necessarily a wrongful death heir), that person can bring the wrongful death claim on behalf of all the heirs. There is no obligation that any heir participate in the wrongful death lawsuit, and sometimes heirs will waive their rights in favor of another.
A wrongful death lawsuit can exacerbate family tensions. If there is conflict between members of a family, it is best to be upfront about this with your attorney at the beginning of the case. Settlements cannot be distributed until all heirs have agreed on the distribution.
Get more information in our Wrongful Death FAQ.
Making a Wrongful Death Case
An asbestos wrongful-death lawsuit can be very difficult with regard to evidence, because much of the knowledge of exposure died with the injured person. Family members who did not work with the decedent may not be able to describe how the exposure happened, let alone what asbestos-containing products were involved. Since the exposure likely occurred many years earlier, even a family member who knew was what happening at the time may have forgotten significant portions of the work history.
For this reason, other witnesses (such as coworkers) and written evidence (such as work diaries or union dispatch slips) are very important. Your attorney will need to spend money on interviewing people, gathering records from worksites and employers, and otherwise investigating the exposure in order to know who the viable defendants are. If specific defendants can’t be identified, the case may have to be limited to claims against the now-bankrupt suppliers of asbestos fibers and manufacturers of widely used asbestos-containing products. (Learn more about Bankrupt Asbestos Defendants.)
Depending upon the extent of the case, some or all heirs may be asked to provide deposition or trial testimony. Even if an heir knows nothing about the decedent's asbestos exposure, such testimony is still important in establishing the extent of the loss.
Valuing the Case Includes Multiple Factors
A tort claim is in part an attempt to put a monetary figure on a non-monetary injury. It is relatively easy to determine economic damages like lost wages and lost future income, medical expenses, and the cost of replacement services. What is more difficult to place a value on is non-economic damages. In personal injury cases, this includes pain and suffering. In wrongful death claims, loss is usually measured by what the decedent contributed to the surviving heirs: companionship, advice, household support, and so on.
This means that the case of a person who died from mesothelioma and whose only heir is a child living in another state may have smaller non-economic damages than that of a person who suffered from asbestosis and is survived by a spouse and a grandchild who lived with the decedent. Medical damages will still likely be more substantial in a mesothelioma case than in an asbestosis case. Other economic damages will be based upon the decedent’s income and how much the heirs depended on that income.
Since settlements are often made in a package, looking at the case as a whole, these distinctions may not matter much unless the case goes to trial. If damages are awarded by a jury, the jury will need to break them down into various categories.
Wrongful death cases are subject to a statute of limitations (the time in which filing a lawsuit is permitted), which varies from state to state. Usually this is 1 or 2 years from the date of death. The statute may be different for asbestos cases than for other kinds of wrongful deaths. If the statute of limitations has passed, a claim for wrongful death cannot usually be made.
In rare circumstances, a claim can be brought after the statute of limitations deadline has passed, if the heirs had no reason to know that asbestos contributed to the death. For example, if a person dies of an asbestos-related cancer, but the heirs are never told -- and could not reasonably have learned on their own -- that asbestos was a factor in the death, the statute of limitations time period might be calculated from the date the plaintiffs learned of the connection.