Opinion of Justice Breyer in Norfolk & Western Railway Company, Petitioner v. Freeman Ayers et al. (Asbestos Case)

Justice Breyer's opinion regarding the asbestos case as follows:SUPREME COURT OF THE UNITED STATES

NORFOLK & WESTERN RAILWAY CO. v. AYERS ET AL.

CERTIORARI TO THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA

JUSTICE BREYER, concurring in part and dissenting in part.

I join Parts I, II, and IV of the Court’s opinion. I agree with JUSTICE KENNEDY, however, that the law does not permit recovery for “fear of cancer” in this case. And I join his opinion dissenting from Part III. Because the issue is a close and difficult one, I mention several considerations that, in my mind, tip the balance.

Unlike the majority, I do not believe that the Restatement (Second) of Torts (1963–1964) (hereinafter Second Restatement) comes close to determining the correct answer to the legal question before us. Cf. ante, at 10, 15 (majority opinion). The Second Restatement sets forth a general rule of recovery for “fright, shock, or other emotional disturbance” where an “actor’s negligent conduct has so caused any bodily harm to another as to make him liable for” it. §456. But the Second Restatement neither gives a definition of the kind of “emotional disturbance” for which recovery is available nor otherwise states that recovery is available for any kind of emotional disturbance whatsoever. Ibid.