JUSTICE KENNEDY:
Court’s responsibility under FELA in asbestos case of Norfolk & Western Railway Co.

Justice Kennedy discusses Norfolk v. Ayers asbestos case and FELA.

More important, while the disagreement among state courts about how to address this problem is telling, it is important to keep in mind the nature of the Court’s responsibility under FELA.

The implementation of the Act is a matter of federal common law, see Urie v. Thompson, 337 U. S. 163, 173 (1949), and it is for the Court to develop and administer a fair and workable rule of decision, see Brady v. Southern R. Co., 320 U. S. 476, 479 (1943) (“[T]he question must be determined by this Court finally”); see also Gottshall, 512 U. S., at 558 (SOUTER, J., concurring) (“That duty is to develop a federal common law of negligence under FELA, informed by reference to the evolving common law”). State-court precedent is not dispositive. See Dice v. Akron, C. & Y. R. Co., 342 U. S. 359, 361 (1952) (“State laws are not controlling in determining what the incidents of this federal right shall be”).

Instead, the Court is bound only by the terms of FELA and its own precedent giving meaning to the Act. Within those constraints, the Court must endeavor to arrive at the correct rule—a rule that is just and practical—rather than the majority rule or the rule of the Restatement.

These considerations establish the proper rule for the case. Although the anxiety generated by an increased awareness about a disease may be real and painful, it lacks the direct link to a physical injury that suffices for recovery. Cf. Metro-North, 521 U. S., at 432 (denying fear-of-cancer recovery where condition “causes emotional distress only because the worker learns that he may become ill after a substantial period of time”). The respondents’ entitlement to compensation for their fear of cancer turns upon their ability to make out a claim for negligent infliction of emotional distress; and they cannot do so.

Opinion of Justice Kennedy in Norfolk & Western Railway Company, Petitioner v. Freeman Ayers et al.

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