Fear of future cancer part of pain and suffering.

• Author: Bailey, Ronald E.

Writing in the March newsletter of the Toxic and Hazardous Substances Litigation Committee, Ronald E. Bailey of the Portland, Oregon, office of Bullivant Houser Bailey discusses a recent U.S. Supreme Court decision:

In a 5-4 opinion on March l0 in Norfolk & Western Railway Co. v. Ayers, 123 S.Ct. 1210, the U.S. Supreme Court held, in part, that workers suffering from asbestosis resulting from work-related exposure to asbestos may recover damages for fear of future cancer as part of pain and suffering.

Six former employees of the Norfolk & Western who suffer from asbestosis brought suit under the Federal Employers' Liability Act (FELA), 45 U.S.C. [subsections] 51-60, which imposes liability on common carrier railroads for work-related injuries caused "in whole or in part" by the railroad's negligence. The plaintiffs alleged that the N&W negligently exposed them to asbestos, which caused the occupational disease asbestosis. As an element of damages, they sought recovery for mental distress based on their fear of developing cancer.

Expert testimony indicated that persons suffering from asbestosis have a "significant" risk of dying of mesothelioma, a fatal cancer of the lining of the lung or abdominal cavity. Expert testimony also indicated that asbestosis sufferers with a history of smoking have a "significantly increased risk" of developing lung cancer. Of the six plaintiffs, five had histories of smoking, and two continued to smoke even after their diagnoses of asbestosis.

A West Virginia state court jury awarded damages ranging from $770,000 to $1.2 million. The final judgment amounted to approximately $4.9 million.

The trial court denied the N&W's motion for a new trial, and the Supreme Court of Appeals of West Virginia denied discretionary review. The U.S. Supreme Court affirmed.

Justice Ginsburg for the majority

One question before the Court was whether an asbestosis plaintiff, "upon demonstrating a reasonable fear of cancer stemming from his present disease, could recover for that fear as part of asbestosis-related pain and suffering." Writing for the majority, Justice Ginsburg answered that question in the affirmative, noting that, although the case was brought under the FELA, the Court gave "great weight" to common law principles in its analysis. At bottom, the question was whether the plaintiffs, under the circumstances in the instant case, could recover for negligent infliction of emotional distress (NIED).

Under Supreme Court...