Mesothelioma and Florida Filing Deadlines: A Plain-Language Guide for Families

A mesothelioma diagnosis can change a family’s life. So can the death of a loved one from an asbestos-related disease. These events raise a hard question. How long does the family have to act?

The answer in Florida is not one number. The deadline depends on three things:

• the type of claim
• the date the claim legally accrued (the date the legal clock starts)
• any exceptions that apply

By Igor Hernandez, CHG Lawyers, Coral Gables, Florida

Who This Page Is For and What a Filing Deadline Means

This page is for patients, spouses, adult children, and families. You may be asking whether a claim must be filed. You may also be asking how soon.

A statute of limitations is a time limit set by law for starting a lawsuit. A statute is a law passed by the legislature. If that time passes, a court may refuse to hear the claim.

Under § 95.031, the time to sue generally starts when a cause of action accrues. A cause of action is the legal basis for a lawsuit. It accrues when its last element occurs. An element is one required part of a claim.

Accrual is the reference point. It is not the day a family first asks questions. Exceptions apply.

Mesothelioma cases can involve more than one kind of claim. These include:

• a lawsuit for the person diagnosed
• a wrongful death claim after a death
• separate benefit paths

Each may have its own clock. Do not assume a deadline. Have the dates checked against the records.

Florida’s Two-Year Negligence Period for Newer Claims

For negligence claims that accrue after March 24, 2023, Florida law sets a two-year period under § 95.11. So the accrual date is central.

Section 95.11 sets different periods for different kinds of actions. Some provisions can also pause the clock. One example is the presuit notice rule for medical negligence, discussed below.

Whether the two-year period applies to a particular asbestos claim depends on the specific facts and Florida law. It also depends on how the period fits with any discovery rule.

A discovery rule is a legal rule about when a person learned, or should have learned, of the harm. Do not plan around any number until the dates have been reviewed.

Deadlines by Claim Type: Injury, Wrongful Death, and Medical Negligence

Florida law handles personal injury, wrongful death, and medical negligence claims under different rules. Each one needs its own timing review.

• Injury claim for the person diagnosed. Negligence claims generally fall under a two-year limitations period for claims that accrue after March 24, 2023, but claims against product makers may be governed by a different period, so timing depends on the facts and applicable Florida law. Accrual is measured under § 95.031. Outcomes depend on the facts and applicable Florida law.
• Wrongful death claim for the family. § 768.19 creates a right of action when a death is caused by a wrongful act or negligence.

Under § 768.20, the personal representative brings the action for the survivors and the estate. A personal representative is the person legally appointed to manage the deceased person’s estate.

Under § 768.20, a personal injury action pending at death abates only when the injury to the decedent results in death. If death comes from another cause, Florida’s survival statute, § 46.021, can apply. Florida’s general wrongful-death limitations period is two years from the date of death under § 95.11, and exceptions may apply.

• Medical negligence. A missed or delayed diagnosis may raise a medical negligence question. Under § 766.106, presuit notice must be served within the § 95.11 time limits. Presuit notice is written notice sent before a lawsuit is filed.

Whether and how this applies depends on the medical records and Florida law.

Why Mesothelioma Deadlines Turn on Exposure and Diagnosis Dates

Mesothelioma deadlines can turn on when the illness was discovered. They are not only about when exposure happened.

The Agency for Toxic Substances and Disease Registry provides information on the health effects of asbestos, including mesothelioma, a cancer associated with asbestos exposure. Latency is the gap between exposure and signs of disease.

For further reading on mesothelioma, see this PubMed Central article.

For asbestos claims not barred as of the act’s effective date, § 774.206(1) says the limitations period does not begin until the exposed person discovers, or with reasonable diligence should have discovered, physical impairment from an asbestos-related condition.

Whether this rule applies to a given claim depends on its facts and effective-date status.

Section 774.206(2) treats a nonmalignant asbestos claim as separate from a claim for asbestos-related cancer. A nonmalignant claim is a claim not based on cancer. The same section says damages may not be awarded for fear or risk of cancer in an asbestos civil action.

Exposure history shapes the claim. Relevant settings can include:

• a job site
• military service
• household contact with a worker’s clothing

Records of where and how exposure happened matter to the timeline. Keep these details written down while memories are fresh.

Other Paths With Separate Timelines: Trusts, VA Benefits, and Workers’ Compensation

Trusts, VA benefits, and workers’ compensation can run on their own paths. These paths can run apart from a lawsuit.

• Asbestos bankruptcy trusts. Some companies facing asbestos claims set up trusts. These trusts may pay claims outside a lawsuit. Filing rules and deadlines may differ from one trust to another.

Availability depends on the trust’s terms and applicable law.

• Under 38 U.S.C. § 5110(a)(1), unless another provision of that chapter provides otherwise, the effective date of an award on an initial or supplemental claim for compensation, dependency and indemnity compensation, or pension is fixed according to the facts found and may not be earlier than the date the application was received. The statute also contains other provisions and conditions, including rules under which the date of the initial application may still count when a claim is continuously pursued, and how it applies depends on the facts of each case. Other federal requirements also apply.

• Workers’ compensation. Job-related exposure is generally handled through workers’ compensation. Under § 440.11, an employer’s liability is generally exclusive, subject to listed exceptions. In plain terms, workers’ compensation is generally the main remedy against the employer.

An occupational disease claim under § 440.151 requires medical evidence that the employment was the major contributing cause. An occupational disease is an illness caused by work.

How CHG Approaches These Claims: Steps, Timing, and Next Steps

CHG Personal Injury Lawyers focuses on personal injury and wrongful death matters in Florida, including asbestos-related claims. Igor Hernandez is the responsible lawyer. The office is in Coral Gables, Florida.

Some matters may be referred to, or handled together with, another law firm. CHG does not claim to be lead counsel in any multidistrict litigation (MDL). An MDL is one large federal case that combines many related lawsuits.

The process generally follows four steps:

1. First conversation. We discuss the diagnosis or loss and the exposure history.
2. Records. If the matter is handled by our firm, we may gather medical records, employment and military history, and information about the products or sites involved, depending on the facts.
3. Timing questions. Because each situation turns on its own facts, our team can go over the details of what happened with you and talk through any timing questions you have.
4. Path choice. We discuss which paths fit the facts, such as a lawsuit or a trust claim, and any benefits questions may need to be handled separately.

No timeline can be promised for any step. The pace depends on the records and the case.

Common Questions About Mesothelioma Deadlines in Florida