Challenges Facing Mesothelioma Patients and Their Families: Medical/Legal Intersections

Abstract

To enhance foresight for patients and their physicians, and to encourage mutual understanding of likely medical/legal events, this chapter addresses medical/legal aspects of lawsuits to obtain compensation for a mesothelioma possibly caused—in whole or in part—by intake of asbestos fibers. The chapter includes overview information on (1) the approximately 2000 US mesothelioma lawsuits filed in each of 2014 and 2015, (2) factors to consider when thinking about a mesothelioma lawsuit and considering lawyers for such a lawsuit, (3) the economics of mesothelioma claims, and (4) “asbestos trusts” and mesothelioma compensation. Also addressed are trial and pretrial “discovery” processes, including emotional and stress factors that may arise from actual or potential conflicting thoughts and priorities generated by simultaneously going through litigation and therapy. Medical data and medical record disclosure issues will arise when lawsuits and claims to trusts are asserted, including demands by lawyers and/or trusts for experts to have access to portions of biopsy samples or other biologic materials used to diagnose mesothelioma. Genetic testing for the person and/or family also may be requested, as was done during pretrial processes for an early 2016 mesothelioma trial which included expert testimony regarding the possible significance of germ line (inherited) genetic characteristics of the person afflicted by mesothelioma. Other pretrial discovery processes arise from the issues that will be resolved in trial. In mesothelioma cases, the overall issue typically is the “cause” of the tumor, as that term is defined and utilized in legal systems. Because of scientific issues about when and how asbestos intake can lead to mesothelioma, persons with mesothelioma and family members should expect to become involved in legal system processes aimed at collecting testimony and documents about the possible amounts and sources of asbestos intake for a particular person. Treating doctors and scientists may be called upon to provide expert testimony regarding which “exposures” to which asbestos products might or might not be deemed “enough” to be a legal cause of the mesothelioma. In addition, some lawyers and other professionals (e.g., actuaries) are starting to pay attention to “molecular science,” including developments at the intersections between science and law regarding biomarkers, possible signatures in somatic mutation patterns, and individual variability, including the impact of individual variability for workplace regulations and “toxic tort” lawsuits. Most lawsuits settle without a trial, but each year, perhaps 40–100 mesothelioma cases will at least start a trial against some of the entities named as defendants, and these cases will generate the most pretrial discovery activity. In addition, trial dates are catalysts for settlements, so there also are extensive pretrial discovery processes for hundreds of cases set for trial each year.