The Jury's Analysis in the Norfolk v. Ayers Asbestos Case

Read Judge Kennedy's analysis of the jury's decision in the case of Norfolk v. Ayers asbestos case. Exposure to asbestos is known to cause serious diseases such as mesothelioma, asbestos-related lung cancer and asbestosis.

It is beyond the ability of juries to derive from statistics like these a fair estimate of the danger caused by negligent exposure to asbestos. See Metro-North, supra, at 435. For this reason, the trial judge was correct to instruct the jury that they could not award the respondents any damages for cancer or for an increased risk of cancer. In disallowing recovery for risk but allowing recovery for fear based on that risk, however, the trial judge attempted to avoid speculation at the outset but succumbed to added speculation in the end. If instructing a jury to calculate an increased risk of cancer invites speculation, then asking the jury to infer from its estimate a rough sense of the fear based on the risk invites speculation compounded.

The damages the jury awarded in this case indicate the legitimacy of these concerns. As described above, supra, at 2, the respondents received damages of between $500,000 and $1.2 million despite having complained only that they suffered shortness of breath and experienced varying degrees of concern about cancer. This evidence of injury and the compensation awarded is recited here not “to reweigh that evidence in light of information not presented at trial,” ante, at 15, n. 13, or “to judge the sufficiency of the evidence or the reasonableness of the damages awards,” ante, at 18. Rather, it is instructive as to what results in a single case when a jury is charged with translating into dollar amounts confusing and contested evidence about the nature of a complicated harm. It demonstrates the speculative, unreasoned kind of award generated when a jury is presented vivid testimony about the agony of cancer, provided expert evidence that a person’s chances of developing that cancer have increased, but admonished that only the fear of that cancer—and not the cancer itself, or a heightened risk of developing cancer—is compensable.