Can an Asbestos Lawsuit Continue if the Plaintiff Dies?
The United States has developed one of the greatest judicial systems the world has ever known. Americans, protected by both federal and state constitutions, enjoy numerous important protections, including due process and the right to trial by jury. However, the system sometimes moves slowly as it attempts to ensure that the chance for a mistake is minimized. Unfortunately for those suffering from severe asbestos-related illness, such as mesothelioma and lung cancer, time can be in short supply. This prompts a number of victims to ask what will happen if they are unable to complete their trial.
All forms of asbestos are now considered to be harmful to humans. The harm occurs when we breath in asbestos fibers floating in the air. While some argue that low levels of exposure generally do not result in disease, others point to cases in which medical illness resulted after very short periods of exposure. Following are some illnesses commonly related to asbestos exposure:
- Mesothelioma: A cancerous tumor formed on the membrane surrounding the chest, abdomen, lungs, and heart. In many instances the disease is not detected until it reaches an advanced stage, because symptoms often are not seen until twenty or more years after the asbestos exposure. According to WebMD, the five-year survival rate is approximately 5 to ten percent.
- Asbestosis: Non-cancerous inflammation of the lungs caused by scarring associated with the inhaling of asbestos fibers. Permanent scarring can result, making it more difficult for oxygen to enter the lungs.
- Pleural effusion: A condition in which an abnormal amount of fluid surrounds the lungs.
- Lung cancer.
- Other forms of cancer have been linked to asbestos exposure, although less frequently than the above, including prostate, pancreas, breast, bladder, colon, and leukemia.
Industries Exposed to Asbestos
Millions of Americans, from many walks of life, have been exposed to asbestos in the workplace. Examples include employees in the following industries:
- automobile repair, especially brakes
- jobs, including janitorial and roofing, in buildings containing asbestos.
What Happens if the Plaintiff Dies?
Unfortunately, because it often takes so long for symptoms to appear for asbestos-related illnesses, some victims are seriously ill when they file their claims. On some occasions, a plaintiff may pass away before resolution of the case. In the event of such an unfortunate occurrence, Oregon law provides procedures by which the case can continue.
Oregon Revised Statutes Section 115.305 provides that “[a]ll causes of action or suit, by one person against another, survive to the personal representative of the former and against the personal representative of the latter.” Therefore, if a person files a lawsuit, then passes away before the lawsuit is completed, the personal representative of the deceased plaintiff’s estate stands in the deceased plaintiff’s place for the purpose of completing the lawsuit.
Determining the appropriate person to act as the deceased’s personal representative requires application of probate law. Marital status and other family relationships may play a role in making the determination. Moreover, if the death is a result of the asbestos-related illness, a wrongful death recovery may now be appropriate. Our next blog article will address wrongful death actions in greater detail.
Holding Wrongdoers Accountable
Many employers knew about the harm caused to workers from asbestos exposure for decades and still did not protect employees from these harms. In fact, some organizations intentionally hid this knowledge from their employees. In large measure, it took lawsuits and the judicial system to expose these bad actors and to hold them responsible for the harm they inflicted. At Nelson MacNeil Rayfield we have experience with asbestos related cases and continue to fight for our clients who have suffered harm due to the negligence or intentional acts of wrongdoers. If you fear that you have been harmed by asbestos exposure, or have questions, please contact us for a free consultation.