JUSTICE KENNEDY ON:
How asbestos litigation affects businesses

Opinion of Justice Kennedy on the subject of asbestos litigation in Norfolk & Western Railway Company, Petitioner v. Freeman Ayers et al.

Asbestos litigation has driven 57 companies, which employed hundreds of thousands of people, into bankruptcy, including 26 companies that have become insolvent since January 1, 2000. See RAND Institute for Civil Justice, S. Carroll et al., Asbestos Litigation Costs and Compensation: An Interim Report 71 (2002) Petitioner’s Supplemental Lodging, p. SL82.

With each bankruptcy the remaining defendants come under greater financial strain, see Edley & Weiler, Asbestos: A Multi-Billion-Dollar Crisis, 30 Harv. J. Legis. 383, 392 (1993); M. Plevin & P. Kalish, What’s Behind the Recent Wave of Asbestos Bankruptcies? 16 Mealey’s Litigation Report: Asbestos 35 (Apr. 20, 2001), and the funds available for compensation become closer to exhaustion, see Schuck, The Worst Should Go First: Deferral Registries in Asbestos Litigation, 15 Harv. J. L. & Pub. Pol’y 541, 547 (1992).

In this particular universe of asbestos litigation, with its fast diminishing resources, the Court’s wooden determination to allow recovery for fear of future illness is antithetical to FELA’s goals of ensuring compensation for injuries. Cf. Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, 555 (1994) (describing FELA’s “central focus on physical perils”); Metro-North, supra, at 430 (noting that Gottshall relied upon cases involving “a threatened physical contact that caused, or might have caused, immediate traumatic harm”).

As a consequence of the majority’s decision, it is more likely that those with the worst injuries from exposure to asbestos will find they are without remedy because those with lesser, and even problematic, injuries will have exhausted the resources for payment. Today’s decision is not employee-protecting; it is employee-threatening.