01-963 Norfolk & Western Railway Co. v. Ayers, et al. (58740)

Listen to this article

Unlike stand-alone claims for negligently inflicted emotional distress, claims for pain and suffering associated with a physical injury are traditionally compensable. By 1908, when the FELA was enacted, the common law had evolved to encompass apprehension of future harm as a component of pain and suffering. In recent years, of the many courts that have ruled on the question presented here, a clear majority sustain recovery. Arguing against this trend, Norfolk and its amici assert that the asbestosis claimants’ alleged cancer fears are too remote from asbestosis to warrant inclusion in their pain and suffering awards. Amicus United States refers to the “separate disease rule,” under which most courts have held that the statute of limitations runs separately for each asbestos-related disease. Because the asbestosis claimants may bring a second action if cancer develops, the Government argues, cancer-related damages are unwarranted here. The question, as the Government frames it, is not whether the asbestosis claimants can recover for fear of cancer, but when. But those claimants did not seek, and the trial court did not allow, discrete damages for their increased risk of future cancer. Instead, they sought damages for their current injury, which, they allege, encompasses a present fear that the toxic exposure causative of asbestosis may later result in cancer. The Government’s “when, not whether” argument has a large gap; it excludes recovery for any fear experienced by an asbestosis sufferer who never gets cancer. To be compensable as pain and suffering, Norfolk further urges, a mental or emotional harm must have been “directly brought about by a physical injury.” This argument elides over a key connection between Norfolk’s conduct and the damages the asbestosis claimants allege as part of their pain and suffering: Once found liable for any bodily harm, a negligent actor is answerable in damages under the common law for emotional disturbance resulting from that harm or from the conduct which causes it. Given the acknowledgment by Norfolk’s expert that asbestosis puts a worker in a heightened risk category for asbestos-related lung cancer, as well as the undisputed testimony of the asbestosis claimants’ expert that some ten percent of asbestosis sufferers have died of mesothelioma, the claimants would have good cause for increased apprehension about their vulnerability to cancer. Although Metro-North stressed that holding employers liable to workers merely exposed to asbestos would risk “unlimited and unpredictable liability,” 521 U.S., at 435, that decision sharply distinguished exposure-only plaintiffs from those who suffer from a disease, and stated, unambiguously, that the common law permits emotional distress recovery for the latter category, e.g., id., at 436. The categorical exclusion of exposure-only claimants reduces the universe of potential claimants to numbers neither “unlimited” nor “unpredictable,” for, of those exposed to asbestos, only a small fraction will develop asbestosis.

Affirmed.

Local effect:

The Seventh Circuit and Wisconsin courts have not previously considered the issue, but the holding is consistent with the Seventh Circuit’s observation that, “numerous FELA actions have been submitted to a jury based upon … evidence scarcely more substantial than pigeon bone broth.” Harbin v. Burlington Northern Railroad Co., 921 F.2d 129, 132 (7th Cir. 1990), quoted with approval by the Wisconsin Court of Appeals in Vonderhaar v. Soo Line Railroad Co., 2001 WI App 77, 242 Wis.2d 746, 751, 626 N.W.2d 314, 316.

Ginsburg, J.; Kennedy, J., concurring in part and dissenting in part; Breyer, J., concurring in part and dissenting in part.