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Veterans exposed to asbestos can’t sue government

Dipping into the mailbag this week for a serious and sad letter about an important health issue.

Q. My father is a Navy veteran who served in the 1960s. He was recently diagnosed with a form of cancer called mesothelioma. When he was diagnosed, I began doing some research and found that most people who develop mesothelioma have worked on jobs where they inhaled asbestos particles. I’ve found that during the time my father served, the military used asbestos in all its shipyards. My father’s medical expenses have piled up as a result of this disease, which is clear to me was caused by the service’s decision to use these materials. However, I’ve been told that veterans with asbestos-related illnesses can’t sue the federal government for this exposure. Does my father have any options to seek recourse for this deadly disease?

A. Civilian patients exposed to asbestos at work may sue their former employers for failing to warn or protect them from the well-known risks of asbestos.

But veterans with asbestos-related illnesses find themselves in a unique and troubling situation, as they have virtually no avenue to seek compensation from the government.

The impediment is the Feres Doctrine, a legal rule that prevents people who are injured as a result of military service from suing the federal government under the Federal Tort Claims Act.

In fact, despite the clear link between asbestos and shipyards, even Veterans Affairs hospitals require veterans with mesothelioma to prove that the disease is linked to their service in order to qualify for VA benefits.

However, this does not mean that your father, or any other veteran suffering from mesothelioma, has no legal options. Veterans are free to sue the companies that manufactured and sold the asbestos that made them sick — and many of these companies are still in business today, making them liable for compensating veterans affected by their products. Because states set strict deadlines to file a lawsuit, it’s important to start this process quickly.

It’s commonly known that every branch of the U.S. military and many civilian employers have used asbestos in some way. Asbestos exposure was especially severe for service members since it was used throughout ships and machinery from the 1930s through the 1970s.

Pipes, adhesives, pumps, gaskets, instruments and many other ship parts and machinery contained asbestos. Anyone who served on a ship likely was exposed. Shipyard workers, in particular, run a high risk of mesothelioma because they worked directly with asbestos when building ships and salvaging parts.

Mesothelioma is often triggered as long as 15 to 60 years after exposure occurs. Often incorrectly called a form of lung cancer, mesothelioma is a cancer of the mesothelium — the tissues that line human internal organs.

It is notorious for being very aggressive, difficult to diagnose and treat and carrying a grim prognosis. Only one-quarter to one-third of mesothelioma patients survive their first year after diagnosis, and only 10 percent survive for three years.

One reason for the low survival rate is mesothelioma’s lack of distinct symptoms. Some of the first signs of the disease are easy to confuse with flu or pneumonia, such as wheezing or coughing, fatigue, shortness of breath, swelling and pain in the chest or torso. Other symptoms include nausea, fever, heart palpitations and weight loss.

Unfortunately, due to mesothelioma’s long incubation period, experts believe new diagnoses may increase in the coming years. If you served in the military between 1930 and 1980, you run a substantially increased risk of being diagnosed with mesothelioma.

You have options when facing this disease. In a country that honors and respects our veterans, it is a great irony that those who served were exposed to serious risks like asbestos. But while the federal government cannot be held legally responsible for this exposure, companies who knowingly exposed service members to this disease can and should be.

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The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

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Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (www.fedattorney.com/), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.