Texas – Timing to File an Asbestos Related Lawsuit

If you or someone you know has worked around asbestos or asbestos-containing products and has been diagnosed with an asbestos-related disease, such as mesothelioma, asbestosis or lung cancer, filing an asbestos related lawsuit is recommended to help with financial losses and medical costs.

Each state has a certain amount of time within which an asbestos lawsuit may be filed. This is known as a statute of limitations and defendants are quick to focus on when a statute of limitations may have run. If the statute of limitations has expired relative to your situation, your asbestos-related lawsuit may not be able to proceed.

The Texas legislature enacted a new statutory scheme concerning asbestos-related lawsuits in 2005. Before 2005, when an individual was exposed to asbestos or asbestos-containing products and diagnosed with an asbestos-related disease, the statute of limitations was set as two years after the cause of action accrued. Tex. Civ. Prac. & Rem. Code § 16.003 (2010). The cause of action accrued on the date the plaintiff knew or should have known of the injury and that the injury was likely work-related. Childs v. Haussecker ( Tex. 1998) 974 S.W.2d 31. If the person exposed to asbestos died of an asbestos-related disease, then the statute of limitations was set as two years from the date of death. Tex. Civ. Prac. & Rem. Code § 16.003 (2010).

But in 2005, there were several changes to the laws related to asbestos litigation that mostly affected living plaintiffs. The cause of action is now said to accrue on the date the person asserting an asbestos-related injury serves a report that contains certain medical and exposure information on a defendant. Tex. Civ. Prac. & Rem. Code § 16.0031 and § 90.003 (2010). For persons exposed to asbestos or asbestos-containing products and who have passed away from an asbestos-related disease, the cause of action still accrues on the date of the exposed person’s death. Tex. Civ. Prac. & Rem. Code § 16.0031.

Once the cause of action accrues, the person asserting an asbestos-related injury has two years in which to bring an asbestos-related lawsuit. Tex. Civ. Prac. & Rem. Code § 16.0031 (2010). This change allows living plaintiffs to file an asbestos-related lawsuit more than two years after the person knew or should have known of the injury and that the injury was likely work-related. But there does appear to be some judges who are holding some plaintiffs to the pre-2005 statute of limitations rule if the two years had run before September 1, 2005.

For the statute of limitations to begin to run, it is not necessary for the plaintiff to know the identity of the wrongdoer. Childs, supra, 974 S.W.2d 31. And, as is the case in most states, a person who sues on or settles a claim for an asbestos-related disease is not precluded from bringing another lawsuit for a different asbestos-related disease. Pustejovsky v. Rapid-American Corp. (2000) 35 S.W.3d 643, 653.

In other words, if a person was previously diagnosed with asbestosis and is later diagnosed with mesothelioma, the diagnosis of mesothelioma creates a new cause of action regardless of whether the two year statute of limitations has already run as to the asbestosis-related cause of action.

Because there is some confusion in the courts still as to the application of the 2005 changes under certain circumstances, it is strongly suggested that a person diagnosed with an asbestos-related disease or an heir to a person who passes away from an asbestos-related disease contact an attorney as soon as possible in order to determine if the facts warrant an asbestos-related lawsuit. Clapper, Patti, Schweizer & Mason specializes in handling only these types of cases and are experts in the field. They are extremely successful, in part because they only handle a select number of mesothelioma and asbestos cases at a time, thereby being able to give focused attention to each client.

For more than 30 years, the firm has successfully represented clients from Texas in asbestos-related lawsuits. They have obtained hundreds of millions of dollars in jury awards and settlements. To find out more about Texas statute of limitations or legal representation, please contact the lawyers at Clapper, Patti, Schweizer & Mason for a free case evaluation.