NORFOLK vs. AYERS ASBESTOS CASE
Justice Breyer’s First Argument

Justice Breyer continues his opinion in Norfolk v. Ayers asbestos case

First, the law in this area has sought to impose limitations that separate valid, important emotional distress claims from less important, trivial, or invalid claims. See Metro-North Commuter R. Co. v. Buckley, 521 U. S. 424, 433 (1997). The presence of physical harm often provides a central touchstone in this regard. But that does not work here. That is because, given ordinary background risks, the increment in a person’s fear of cancer due to diagnosis of a condition such as asbestosis seems virtually impossible to evaluate. See ante, at 13–14 (opinion of KENNEDY, J.).

The evidence (viewed in the plaintiffs’ favor) indicates that, for a nonsmoker, a diagnosis of asbestosis may increase the perceived risk of dying of cancer from something like the ordinary background risk of about 22% (about two chances in nine) to about one chance in three. See ante, at 16–17 (majority opinion); ante, at 13–14 (opinion of KENNEDY, J.). See also L. Ries et al., National Cancer Institute, SEER Cancer Statistics Rev., 1973–1999, Table I–16 (2002), available at http://seer.cancer.gov/csr/ 1973_1999/overview.pdf (as visited Mar. 3, 2003) (available in Clerk of Court’s case file).

Would a reasonable person who is not already afraid of cancer when the odds of dying are about two in nine suddenly develop a “genuine and serious” and “reasonable” fear when those odds change to one in three? Would a smoker, a risk-taker whose conduct has already increased the chance of cancer death to, say, about one in four, compare Cagle, Criteria for Attributing Lung Cancer to Asbestos Exposure, 117 Am. J. Clin. Path. 9 (2002), with Ries, supra, at Table I–16, and whose chance of dying of a smoking-related disease is already about 50–50, Centers for Disease Control and Prevention, Projected Smoking-Related Deaths Among Youth—United States, 45 Morbidity and Mortality Weekly Report 971 (1996), suddenly develop a reasonable, genuine, and serious fear of cancer when the chance of cancer or smoking-related death rises even further? There is simply no way to know, and it is close to impossible, in the ordinary case, to evaluate a plaintiff’s affirmative answer.