Monday, June 29, 2009

Supreme Court Reaffirms Availability of Damages for Fear of Future Illness in Asbestos Cases

In CSX Transportation, Inc. v. Thurston Hensley, the Supreme Court addressed the question of whether a former railroad worker who contracted astestosis after long-term exposure to asbestos on the job could recover damages for pain and suffering under the Federal Employers' Liability Act (FELA) based on his fear of developing lung cancer in the future.  In its June 1 decision, the Court, per curiam, reaffirmed a prior requirement that such damages are available but are limited to plaintiffs who can prove that their fear of cancer is both genuine and serious; the Court thus found that the lower court erred by not utilizing a jury instruction embodying this standard.  The full text of the opinion can be found here.


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What is interesting here is the dissent by Justice Stevens. The majority converts the bit of Ayers dicta below (fn 19) into a mandated jury instruction rather than a sampler of means available to trial courts to assure themselves that there is an adequate foundation (substantiality and genuineness) for an award of emotional distress due to "fear of cancer".

The Court holds effectively that it is per se reversible error to fail to instruct the jury that the plaintiff must prove the fear to be "genuine and serious".

What is most remarkable, as Stevens points out, is that the court, protestations in Ayers to the contrary , is creating a federal common law mandating uniformity in FELA cases, in which state courts have concurrent jurisdiction.


Ayers at at 159, n. 19
“In their prediction that adhering to the line drawn in Gottshall and Metro-North will, in this setting, bankrupt defendants, the dissents largely disregard, inter alia, the verdict control devices available to the trial court. These include, on a defendant's request, a charge that each plaintiff must prove any alleged fear to be genuine and serious, review of the evidence on damages for sufficiency, and particularized verdict forms.”

Posted by: George Conk | Jul 8, 2009 1:06:02 PM

Hopefully they give him the greater hand in the case. Who would joke about cancer anyway? I wish him luck and hope he comes out on top.
Great article. Thanks for posting!

Posted by: Exposure to Asbestos | May 24, 2010 2:36:20 PM

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