When people diagnosed with mesothelioma assume there’s a class action lawsuit of victims harmed by asbestos that they’ll be able to join. In reality, mesothelioma class action lawsuits are almost unheard of today, and understanding why can help patients and families choose the legal path most likely to get them full and fair compensation.
What Is a Class Action Lawsuit?
A class action lawsuit is a legal proceeding in which one or more plaintiffs, known as “named plaintiffs” or “class representatives,” sue a defendant on behalf of a much larger group of people, called “the class,” who all suffered a similar harm. Because having so many people file their own claims would be unmanageable, a class action lawsuit is filed under select named plaintiffs’ claims, and those claims stand in for those of everyone in the class. If the named plaintiffs’ case succeeds, either through a verdict or settlement, the money recovered is generally divided among all class members according to a formula, rather than being individually negotiated based on each person’s specific circumstances.[1]
Class actions work well when:
- Large numbers of people suffered essentially the same harm, in the same way
- The amount of harm to each person is roughly similar
- Individual claims are too small in dollar value to justify each person hiring their own attorney
Traditionally, this model is deployed in cases involving defective consumer products, securities fraud, and employment discrimination. Mesothelioma cases, however, rarely fit this mold.
Why Mesothelioma Cases Don’t Usually Qualify as Class Actions
Every mesothelioma case is different, even when multiple victims were exposed to asbestos from the same manufacturer or at the same job site. Courts have repeatedly found that these differences make class treatment unfair or unworkable. There are many reasons for this, including:
Exposure Histories Vary Widely
Asbestos exposure happens in many different ways. One asbestos victim might have been exposed at a single shipyard job for two years, while another was exposed across a 30-year career, working with dozens of different products manufactured and distributed by dozens of different manufacturers and suppliers. Each person’s case requires its own proof of which company’s product caused the harm.
Diagnoses and Prognoses Differ
Some asbestos exposure victims are diagnosed with asbestosis or pleural plaques and have a normal life expectancy, while others are diagnosed with mesothelioma, a terminal disease with a painful prognosis and only months to live. Treating these vastly different medical realities identically for compensation purposes raises serious questions about fairness and equity.
The Long Latency Period Complicates Everything
Mesothelioma has a long latency period, which means that it often takes 20 to 50 years to develop after exposure. As a result, a class might need to include not only people who are currently sick, but people who were exposed decades ago and haven’t yet been diagnosed, and may not be for years to come. Courts have found it nearly impossible to fairly represent the interests of people who don’t yet know whether or when they’ll be part of a lawsuit.
The Supreme Court Cases That Changed Everything
Two landmark U.S. Supreme Court decisions from the late 1990s effectively put an end to the idea that large-scale class action lawsuits would be appropriate for asbestos cases. These two decisions established the current approach to filing asbestos lawsuits.
Georgine v. Amchem Products and Amchem Products, Inc. v. Windsor
In the early 1990s, in the face of asbestos litigation claims that were growing exponentially, a group of asbestos companies and victims’ attorneys attempted to address the issue by creating a single, all-encompassing settlement. The case, originally known as Georgine v. Amchem Products, proposed a class that could have included as many as two million people, ranging from those who were already sick to those who might become sick from past exposure.[2]
The case eventually went to the Supreme Court as Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997). The Court rejected the settlement, ruling that the class identified in the claim was too varied to satisfy the requirements of the rules governing class certification. The justices were especially concerned about people who hadn’t yet developed any illness, as under the terms of the settlement, they’d be bound by terms that had been negotiated without representation of their future interests or knowledge of their specific circumstances.[2]
Ortiz v. Fibreboard Corp.
Two years later, the Court confronted a similar issue in the case of Ortiz v. Fibreboard Corporation. This case involved a proposed “limited fund” class action that was based on the theory that Fibreboard Corporation’s assets and insurance coverage were finite and had to be divided fairly among all present and future claimants.
As it had previously, the Supreme Court rejected the settlement, finding that the parties hadn’t adequately proven that the fund was truly limited, and that the process for dividing it didn’t fairly account for the conflicting interests within the class, since claimants with different levels of illness and different timelines had very different needs.[3]
Together, the Amchem and Ortiz cases effectively ended the use of nationwide class actions to resolve personal injury and wrongful death claims relating to asbestos exposure. Federal courts have consistently relied on these precedents ever since, and while a handful of state courts have occasionally been open to allowing narrower class certifications, mesothelioma injury claims are almost always pursued individually rather than joining class action lawsuits
What Replaced Asbestos Class Actions?
After the courts effectively blocked asbestos exposure victims from pursuing class action claims, litigation for mesothelioma victims and others impacted by the toxic mineral trended toward two other approaches: individual lawsuits coordinated through multidistrict litigation, and asbestos bankruptcy trust funds.
Multidistrict Litigation (MDL)
Rather than trying to resolve every claim in one enormous class, federal courts began consolidating asbestos cases from around the country into a single court for pretrial proceedings, while preserving each plaintiff’s right to an individual trial and an individually calculated award.
The largest example is MDL 875, In Re: Asbestos Products Liability Litigation (No. VI), created in 1991 and overseen by the U.S. District Court for the Eastern District of Pennsylvania. At its peak, MDL 875 consolidated tens of thousands of individual asbestos injury claims from across the country for coordinated discovery and pretrial motions, even though each case retained its own facts, defendants, and outcomes.[4]
This approach allows courts to handle common questions, like the general science linking asbestos to mesothelioma or other diseases efficiently and only once, while still allowing each victim’s unique work history, medical situation, and damages to be evaluated by juries on its own terms. It’s the reason most mesothelioma lawsuits today are described as being part of a mass tort, rather than a class action; the cases are coordinated, but not adjudicated collectively.
Asbestos Bankruptcy Trust Funds
As more and more asbestos-related lawsuits were filed in the 1980s, several major asbestos manufacturers filed for Chapter 11 bankruptcy protection, specifically because of the significant verdicts being awarded by juries. As part of the bankruptcy process, these companies were required to set aside dedicated asbestos trust funds to pay both current and future asbestos claims, since the companies themselves would no longer exist as ongoing entities that could be sued individually. Today, more than 60 asbestos trusts hold tens of billions of dollars set aside specifically to compensate victims, and filing a trust claim is a separate process from filing a lawsuit against a company that is still in business.[5]
As a result, most mesothelioma patients file both individual lawsuits against solvent companies and separate claims against one or more asbestos bankruptcy trust funds tied to companies whose asbestos-contaminated products they worked with that no longer operate.
Where Class Action Language Still Shows Up in Asbestos Cases
Though mesothelioma personal injury and wrongful death claims aren’t filed as class action claims, the phrase is still used in reference to lawsuits filed by asbestos victims in a few situations:
State Consumer Protection Settlements
Some asbestos-related litigation is based on consumer protection claims rather than personal injury claims. For example, Johnson & Johnson reached a $700 million settlement with the attorneys general of 42 states and Washington, D.C. to resolve allegations that the company had misled consumers about the safety of its talc-based baby powder. That settlement addressed consumer deception claims rather than injuries or deaths. Rather than being compensated for diagnoses, victims received awards for having been victims of fraud.[6]
Medical Monitoring Class Actions
In some cases, attorneys have filed proposed class actions seeking medical monitoring for people who were exposed to an asbestos-contaminated product but who haven’t yet been diagnosed with a disease. This monitoring generally includes ongoing diagnostic testing that’s paid for by the defendant, as was the case involving 7,500 people who had been exposed to asbestos during renovation of the Jackson County Courthouse in Kansas City, Missouri.[7]
Multidistrict Litigation is Sometimes Called a Class Action Suit, Informally
Because Multidistrict Litigation claims present huge numbers of cases into a single court, they’re often described in news coverage, and even in some legal marketing, as a kind of class action lawsuit, but this isn’t technically accurate. In an MDL like the Johnson & Johnson talcum powder litigation in New Jersey’s federal court, each victim is pursuing their own individual case, has their own attorney-client relationship, and maintains their own right to an individually negotiated settlement or jury verdict. This is not the case in a true class action, where the outcome applies to everyone.
Individual Lawsuits Generally Provide Better Outcomes for Mesothelioma Victims
For most mesothelioma patients and their families, filing an individual personal injury or wrongful death lawsuit offers real advantages over the class action model. This is true for several reasons:
- The compensation awarded by a jury or negotiated between the parties’ attorneys reflects actual individual circumstances, while a class action divides a fixed pool of money among everyone in the class, using a set formula. An individual claim allows a jury or negotiated settlement to account for a specific victim’s age, income, pain and suffering, medical expenses, family circumstances, and other variables.
- Victims and families retain control in individual lawsuits. The victims and their attorney decide whether to accept a settlement offer or proceed to trial, while in a class action lawsuit, individual class members are typically very limited in their ability to opt out or influence the outcome.
- Access to bankruptcy trusts remains available. Individual claims can be filed against solvent companies through civil litigation as well as against companies that have filed for bankruptcy through their previously established trust funds. This maximizes the total compensation that a single family can recover.
- Individual verdicts can be substantial. Mesothelioma victims have received awards determined by juries, and settlements negotiated between their legal representatives, ranging from roughly $1 million to well over $1 billion in exceptional cases. These figures would have been unavailable had the claims been divided across an entire class.
Pursuing Compensation Without a Class Action
Rather than joining a class action claim, most mesothelioma victims and their families pursue compensation through the following steps:
- Contacting and consulting with a mesothelioma attorney who is experienced in asbestos litigation, and who can establish which companies may be liable and where claims are best pursued.
- Documenting asbestos exposure history, including occupational exposure, military service, and household or secondary exposure.
- Identifying all potentially responsible companies, including those still operating and those that have filed for bankruptcy.
- Filing an individual lawsuit against solvent companies, often coordinated through an MDL or a state asbestos docket.
- Filing separate claims with relevant asbestos bankruptcy trusts tied to companies that no longer operate.
- Pursuing settlement negotiations or trial, with the understanding that most cases settle before reaching a verdict.
Because both the statute of limitations and trust fund deadlines can vary by state and by trust, it’s important to act quickly once a mesothelioma diagnosis has been confirmed.
Help for Mesothelioma Patients and Families
Mesothelioma victims and their loved ones might initially expect a class action to be the natural legal path, especially because so many other people have been harmed by the same negligent companies and have suffered similar damages. But the Supreme Court’s rulings in Amchem and Ortiz, along with decades of successful litigation over the past few decades, have shown that individual lawsuits and trust fund claims give mesothelioma families the best chance at maximizing the compensation they deserve, individually. If you or someone you love has been diagnosed with mesothelioma or another asbestos-related disease, a mesothelioma attorney experienced in asbestos litigation is your most valuable resource for understanding your options, whether that means filing an individual lawsuit, a trust fund claim, or both. Rather than the one-size-fits-all approach that a class action would provide, these professionals can help you identify every company responsible for your exposure, navigate the deadlines involved, and pursue every available resource for compensation.
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