AYERS ASBESTOS CASE
Justice Breyer’s Second Argument

Justice Breyer's Second Argument in Ayers case

The law’s recovery-limiting rules have sought to avoid pure jury speculation, speculation that can produce “unlimited and unpredictable liability.” Metro-North, supra, at 433 (internal quotation marks omitted). How is the jury, without speculation, to measure compensation for the augmentation of a cancer fear from, say, two in nine to one in three?

Given the fact that most of us lead our lives without compensation for fear of a 22% risk of cancer death, Ries, supra, at Table I–16, what monetary value can one attach to an incrementally increased fear due to a risk, say, of 30%? The problem here is not the unreality or lack of seriousness of the fear. It may be all too real.

The problem is the impossibility of knowing an appropriate compensation for asbestosis insofar as its appearance tears away that veil of disregard that ordinarily shelters most of us from fear of cancer, if not fear of death itself. The majority’s verdict control measures, ante, at 21, n. 19, will not help much in this respect.

Courtesy of The United States Supreme Court