How Does a Mesothelioma Lawsuit Work in Massachusetts?

A mesothelioma lawsuit in Massachusetts is a personal injury case, or after a death a wrongful death case, brought against the companies whose asbestos products or premises caused the exposure, and it must be filed within three years after the claim accrues under M.G.L. c. 260, sec. 2A, which for a disease that appears decades after exposure generally means three years from when the person knew or should have known of the illness and its likely cause. The employer usually cannot be sued, because workers’ compensation is its exclusive liability. Running alongside the lawsuit there are usually other claims that are not lawsuits at all: claims against asbestos trusts set up when manufacturers went through bankruptcy under 11 U.S.C. sec. 524(g), and benefit claims under state workers’ compensation, the federal Longshore Act for private shipyard and dock workers, the federal employees’ compensation law for civilian Navy Yard workers, or the VA for veterans.

That is the shape of nearly every Massachusetts mesothelioma case. The disease was caused long ago, most of the original asbestos companies no longer exist in their old form, and the person who is sick often worked for an employer the law protects from suit. So the case is built in layers, each with its own rules and its own deadline, and a misstep in one layer can cost money in another.

This page explains who can be sued, what runs alongside the lawsuit, how the deadlines work, what the family can recover if the patient dies, and the order in which things usually happen. How exposure is proven decades later is covered separately in how to prove asbestos exposure in Massachusetts. This is general information about the law, not legal advice about any particular case.

Who a Massachusetts Mesothelioma Lawsuit Is Brought Against

The defendants in a mesothelioma case are the companies connected to the asbestos itself, not the person’s own employer. They usually fall into three groups:

• Manufacturers and suppliers of asbestos-containing products, such as insulation, gaskets, packing, boiler and pipe products, brake parts, joint compound and fireproofing, that the person worked with or near.
• Owners of the premises where the exposure happened, such as a plant, mill, power station or building where the person worked as an outside contractor rather than as an employee of the owner.
• Successor companies that took on the asbestos liabilities of an older company through a merger or acquisition.

The employer is usually missing from that list for a statutory reason. Under M.G.L. c. 152, sec. 24, an employee “shall be held to have waived his right of action at common law” for an injury compensable under the workers’ compensation act unless written notice reserving the right was given at the time of hire, which almost never happened. The same section extends the waiver to the employee’s spouse, children, parents and dependent relatives, including their claims for loss of consortium against the employer. The federal systems work the same way: under 33 U.S.C. sec. 905(a), the Longshore Act’s compensation is “exclusive and in place of all other liability” of the employer, and under 5 U.S.C. sec. 8116(c), federal employees’ compensation is the exclusive liability of the United States.

What those sections protect is the employer. They do not protect the companies that made, sold or installed the asbestos products, and that is why a mesothelioma case usually names many defendants, sometimes dozens, none of whom employed the person who is sick.

Asbestos Trusts: Claims That Are Not Lawsuits

Many of the largest asbestos manufacturers reorganized in bankruptcy. Federal bankruptcy law, 11 U.S.C. sec. 524(g), lets the court in such a case channel present and future asbestos claims into a trust that assumes the liabilities of a debtor that had been “named as a defendant in personal injury, wrongful death, or property-damage actions seeking recovery for damages allegedly caused by the presence of, or exposure to, asbestos or asbestos-containing products.” The court then enjoins people from suing the reorganized company over those claims. The claim goes to the trust instead.

A trust claim is filed with the trust, not in a courtroom. It is decided under the trust’s own procedures, which typically require proof of the diagnosis and proof of exposure to that company’s products at particular sites and times. That second requirement is where the work history matters, and it is the same evidence the lawsuit needs.

Trust claims and the lawsuit run side by side, but they are not independent. Under M.G.L. c. 231B, sec. 4, when one of several parties liable for the same injury is released in good faith, the release does not discharge the others, but it reduces the claim against them by the amount stipulated in the release or the amount paid for it, whichever is greater. How payments from bankruptcy trusts are treated against the remaining defendants is a contested area that this page does not try to settle; what is certain is that every settlement and payment has to be tracked, because it can change what the remaining case is worth.

Benefit Claims That Run Alongside the Case

The person who is sick may also have a claim for wage replacement and medical benefits from a compensation system, depending on where and for whom they worked. These claims do not require proof of anyone’s fault, and each has its own clock.

Claim	Who it fits	Who pays	Deadline for a latent disease	Effect on the lawsuit
Lawsuit against product makers, suppliers, premises owners	Anyone exposed to a defendant’s asbestos	The defendants and their insurers	Three years from accrual, M.G.L. c. 260, sec. 2A	This is the lawsuit
Asbestos trust claim	Anyone exposed to a bankrupt company’s products	The trust under its own procedures	Set by each trust’s own rules	Payments are tracked against the case
Massachusetts workers’ comp, c. 152	Most private and state and local employees	The employer’s comp insurer	Four years from awareness of the work link, or four years after death, c. 152, sec. 41	Insurer is repaid from the recovery, c. 152, sec. 15
Longshore Act	Private shipyard, dock and harbor workers	The employer or its carrier	Two years from awareness, 33 U.S.C. sec. 913(b)(2)	Settling low without written approval can end all benefits, sec. 933(g)
Federal employees’ comp (FECA)	Civilian employees of the United States, including Navy Yard workers	The United States	Three years, running from disability plus awareness, 5 U.S.C. sec. 8122	Suit against the United States is barred, sec. 8116(c)
VA disability compensation	Veterans exposed in service	The United States	Set by VA rules, not covered on this page	A separate federal benefit

Massachusetts workers’ compensation

Most people exposed at work in Massachusetts were covered by M.G.L. c. 152. For an occupational disease, the claim must be filed “within four years from the date the employee first became aware of the causal relationship between his disability and his employment,” and in the event of death, no later than four years after the death, under c. 152, sec. 41. If a lawsuit against the product makers succeeds, c. 152, sec. 15 says the sum recovered goes first to repay the compensation insurer, with the excess to the employee, and a settlement generally needs approval after a hearing at which both the employee and the insurer can be heard. The full mechanics are in workers’ comp liens and third party recovery.

The Longshore Act for shipyard and dock workers

A worker who built or repaired ships at a privately owned shipyard, or worked on the docks, may be covered by the federal Longshore and Harbor Workers’ Compensation Act instead of, or as well as, the state law. Coverage is explained in whether longshore and harbor workers are covered by workers’ comp in Massachusetts. For an occupational disease, 33 U.S.C. sec. 910(i) treats the time of injury as the date the worker becomes aware, or should have been aware, of the relationship between the employment, the disease and the disability, and sec. 913(b)(2) gives two years from that awareness, or one year from the last compensation payment, whichever is later.

The Longshore Act also contains the most dangerous trap in a mesothelioma case. A worker does not have to choose between compensation and suing the asbestos companies, under 33 U.S.C. sec. 933(a). But under sec. 933(g), if the worker settles with a third party for less than the compensation the Act would pay, without first getting written approval from the employer and its carrier, “all rights to compensation and medical benefits under this chapter shall be terminated.” The same subsection terminates benefits if the worker fails to notify the employer of a settlement or judgment. With many defendants settling at different times, that approval and notice has to be handled for every one.

Civilian workers at the Charlestown Navy Yard

The Charlestown Navy Yard built, repaired and resupplied Navy ships from 1800 until it closed in 1974, and according to the National Park Service its civilian workforce at the end included welders, electricians, machinists, ironworkers, pipefitters and engineers. Those civilians worked for the United States. The Federal Employees’ Compensation Act defines an employee as “a civil officer or employee in any branch of the Government of the United States” (5 U.S.C. sec. 8101(1)), so its benefits, not Massachusetts workers’ comp, are the compensation route, and 5 U.S.C. sec. 8116(c) bars a damages action against the United States itself. For a latent disease, sec. 8122(b) starts the three-year claim period only when the employee has a compensable disability and is aware, or should have been aware, of its connection to the employment. The bar in sec. 8116(c) protects the government, not the manufacturers of the products used in the yard.

Veterans

A veteran whose asbestos exposure happened in service may claim VA disability compensation for a disease contracted in line of duty, under 38 U.S.C. sec. 1110 for service during a period of war and sec. 1131 for other service. That is a federal benefit claim, separate from any lawsuit against the companies that supplied asbestos products to the military.

Answer Capsule

A Massachusetts mesothelioma lawsuit is brought against the companies whose asbestos products or premises caused the exposure, and it must be filed within three years after the claim accrues under M.G.L. c. 260, sec. 2A, which for a latent disease generally runs from when the person knew or should have known of the illness and its cause. The employer is usually protected from suit by M.G.L. c. 152, sec. 24, 33 U.S.C. sec. 905(a) or 5 U.S.C. sec. 8116(c). Alongside the lawsuit run trust claims against reorganized manufacturers under 11 U.S.C. sec. 524(g) and benefit claims under state workers’ comp (four years, c. 152, sec. 41), the Longshore Act (two years, 33 U.S.C. sec. 913(b)(2)), federal employees’ comp for civilian Navy Yard workers (three years, 5 U.S.C. sec. 8122) or the VA. Under the Longshore Act, settling with an asbestos company for less than the compensation due without the employer’s written approval can end all benefits under sec. 933(g). If the patient dies, the executor brings a wrongful death action within three years under c. 229, sec. 2.

The Deadlines, Side by Side

Mesothelioma usually appears twenty or more years after the exposure, so the law does not start the main clock at the exposure. Massachusetts applies a discovery rule to latent disease: the three years under c. 260, sec. 2A generally run from when the person knew, or reasonably should have known, that they were ill and that the illness was connected to someone’s conduct, which in practice is usually at or near diagnosis. The case law behind that rule is set out in how to prove asbestos exposure in Massachusetts.

One deadline does not wait for discovery. M.G.L. c. 260, sec. 2B provides that a tort claim arising from a deficiency or neglect in the design, planning, construction or general administration of an improvement to real property cannot be brought “more than six years after the earlier of” the opening of the improvement to use or its substantial completion and occupancy. That repose period can bar a claim against a designer or builder before the disease even appears. It does not reach every defendant, and which defendants it reaches is one of the first questions in many cases.

If the person dies, a new clock starts. Under c. 229, sec. 2, the wrongful death action must be commenced within three years from the date of death, or within three years from when the executor or administrator knew or should have known of the factual basis for the claim.

How a Mesothelioma Case Usually Unfolds

The order matters, because evidence and deadlines in one part of the case feed the others.

1. Diagnosis and records. The pathology report, imaging and treating physicians’ records establish the disease. The date of diagnosis is often the date the main clock starts.
2. The work and exposure history. Employers by year, jobsites, trades, ships, and the products used or nearby. Social Security earnings records and union records help rebuild it. This history drives every other step.
3. Benefit claims are filed. State comp, the Longshore Act, federal employees’ comp or the VA, whichever applies, each within its own deadline and with its own notice requirements.
4. Defendants and trusts are identified. The exposure history is matched to the companies that made, supplied or controlled the asbestos, and split between solvent companies that can be sued and reorganized companies whose liabilities went to a trust.
5. The lawsuit is filed within three years of accrual, naming the solvent defendants, and trust claims are filed in parallel.
6. Testimony is preserved. The person’s own account of where they worked and what they handled is often the most important evidence in the case. A deposition records it under oath, and under Massachusetts Rule of Civil Procedure 32 a deposition can stand in for live testimony if the witness has died or cannot attend because of sickness or infirmity. See what happens at a deposition in Massachusetts.
7. Settlements and approvals. Defendants often settle separately and at different times. Each settlement may need approval or notice under c. 152, sec. 15 or 33 U.S.C. sec. 933(g), and each reduces the claim against the remaining defendants under c. 231B, sec. 4.
8. Trial against those who remain, if any defendant does not settle.

If the Patient Dies Before the Case Ends

A mesothelioma case often outlives the person who brought it, and Massachusetts law keeps the claim alive. Under M.G.L. c. 228, sec. 1, actions of tort for damage to the person survive the death of the injured person, so the claim for the person’s own injuries continues through the estate.

The death also gives rise to a wrongful death claim under c. 229, sec. 2, brought by the executor or administrator. The damages it allows are:

• the fair monetary value of the person to the family members entitled to recover, including lost net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice;
• reasonable funeral and burial expenses; and
• punitive damages of not less than $5,000 where the death was caused by the defendant’s gross negligence or by malicious, willful, wanton or reckless conduct.

Under c. 229, sec. 6, damages for the person’s conscious suffering before death may be recovered in the same action, and that sum is held as an asset of the estate. A parent whose minor child, or adult child dependent on them for support, is seriously injured has a separate claim for loss of consortium under c. 231, sec. 85X, which matters in the rarer cases where the patient is young.

Wrongful death claims are explained more fully in wrongful death claims in Massachusetts and when Massachusetts allows punitive damages.

When Several Defendants Share the Blame

Because exposure usually came from many products over many years, several defendants can be liable for the same disease. Massachusetts handles that in two statutes. Under c. 231B, sec. 1, where two or more parties are jointly liable in tort for the same injury, a party that pays more than its pro rata share can recover contribution from the others. Under c. 231B, sec. 4, a good faith release of one defendant discharges that defendant from contribution claims by the others and reduces the claim against the rest by the greater of the amount stipulated or the amount paid. In practice that means the order and amount of every settlement shape what is left of the case, which is one reason a mesothelioma case is rarely resolved in a single step.

Key terms

• Mesothelioma: a cancer of the lining of the chest or the abdomen that the claims described here attribute to asbestos exposure.
• Asbestos trust: a trust created in a manufacturer’s bankruptcy under 11 U.S.C. sec. 524(g) that pays asbestos claims instead of the reorganized company.
• Discovery rule: the principle that a latent injury’s limitations period runs from when the person knew or should have known of the harm and its cause, not from the exposure.
• Statute of repose: a fixed cutoff, such as the six years in c. 260, sec. 2B, that can bar a claim regardless of when the injury was discovered.
• Exclusive remedy: the rule that compensation benefits are the employer’s only liability for a work injury, so the employer usually cannot be sued.
• Joint tortfeasors: two or more parties liable in tort for the same injury, who share the liability through contribution under c. 231B.

What to Gather Early

• The diagnosis date, pathology report and names of treating physicians.
• A list of every employer and jobsite, with years, including military service and any work on ships.
• Union membership and referral records, and a Social Security itemized earnings statement.
• Names of co-workers who saw the products used.
• Any workers’ comp, Longshore, federal employees’ comp or VA paperwork already filed or received.
• If the person has died, the death certificate and the appointment of an executor or administrator, since only that person can bring the wrongful death claim.

Frequently Asked Questions

Q: How long do I have to file a mesothelioma lawsuit in Massachusetts?

A: Three years after the claim accrues under M.G.L. c. 260, sec. 2A. Because mesothelioma appears decades after exposure, Massachusetts generally treats the claim as accruing when the person knew or should have known of the illness and its likely cause, usually at or near diagnosis. After a death, the wrongful death action has three years from the death under c. 229, sec. 2. A six-year repose period under c. 260, sec. 2B can separately bar claims against designers and builders of buildings.

Q: Can I sue my employer for mesothelioma in Massachusetts?

A: Usually not. Under M.G.L. c. 152, sec. 24, an employee waives the right to sue the employer for an injury compensable under workers’ comp unless written notice was given at hire. The Longshore Act (33 U.S.C. sec. 905(a)) and the federal employees’ compensation law (5 U.S.C. sec. 8116(c)) have the same effect. Claims against the companies that made or supplied the asbestos are not barred by those sections.

Q: What is an asbestos trust fund claim?

A: A claim filed with a trust created in a manufacturer’s bankruptcy under 11 U.S.C. sec. 524(g), which takes over the company’s asbestos liabilities. It is decided under the trust’s own procedures, typically on proof of diagnosis and exposure to that company’s products, and it runs alongside any lawsuit against companies that did not go bankrupt.

Q: I worked at the Charlestown Navy Yard. Which compensation law applies?

A: The Navy Yard was a federal shipyard until it closed in 1974, and its civilian workers were employees of the United States, so the Federal Employees’ Compensation Act applies rather than Massachusetts workers’ comp. For a latent disease, its three-year claim period under 5 U.S.C. sec. 8122(b) runs from a compensable disability and awareness of the connection to the work. The companies that supplied asbestos products to the yard are not protected by the federal exclusive-remedy rule.

Q: Can I get workers’ comp and also sue the asbestos companies?

A: Generally yes. Under M.G.L. c. 152, sec. 15, the compensation insurer is repaid from what is recovered from the companies, and the excess goes to the worker. Under the Longshore Act, 33 U.S.C. sec. 933(a) says no election is needed, but sec. 933(g) can end all benefits if a third party settlement for less than the compensation due is made without the employer’s prior written approval.

Q: What happens to the lawsuit if the person with mesothelioma dies?

A: The claim survives under M.G.L. c. 228, sec. 1 and continues through the estate. The executor or administrator can also bring a wrongful death action under c. 229, sec. 2, and damages for conscious suffering before death can be recovered in it under c. 229, sec. 6.

Q: Can family members who were exposed through a worker’s clothing bring a claim?

A: Claims based on household exposure, where fibers were carried home on clothing or in a vehicle, are brought against the companies whose products were involved, under the same deadlines. Whether a particular claim can be proven depends on rebuilding the worker’s jobsites and products, which is covered in how to prove asbestos exposure in Massachusetts.

Q: Is Jimmy Knows AI giving me legal advice?

A: No. This page is general information about Massachusetts and federal law for educational purposes. It is not legal advice for your situation and does not create an attorney-client relationship. For advice about your own case, call Jim Glaser Law at (617) JIM-WINS.

For related reading, see how to prove asbestos exposure in Massachusetts, the Massachusetts statute of limitations for every claim, wrongful death claims in Massachusetts and whether longshore and harbor workers are covered by workers’ comp. The mesothelioma docket page describes the firm’s screening for these claims.

Talking to a Lawyer

In a mesothelioma case, the work history and the deadlines decide most of what is possible, and the deadlines run in several systems at once. If you or a family member has been diagnosed, call Jim Glaser Law at (617) JIM-WINS. The line is answered 24 hours a day. The first telephone consultation is free. This page is general information about the law, not legal advice about your situation.