Norfolk v. Ayers Asbestos Case—Statement of the Case: Part III C

Read more about the asbestos case of Norfolk v. Ayers. This section contains the third portion of the Statement of the Case.  Asbestos is a known carcinogen, and exposure to asbestos is known to cause serious diseases such as mesothelioma, asbestos-related lung cancer and asbestosis.

Norfolk presented the question “[w]hether a plaintiff who has asbestosis but not cancer can recover damages for fear of cancer under the [FELA] without proof of physical manifestations of the claimed emotional distress.” Brief for Petitioner (i). Our answer is yes, with an important reservation.

We affirm only the qualification of an asbestosis sufferer to seek compensation for fear of cancer as an element of his asbestosis-related pain and suffering dam-ages. It is incumbent upon such a complainant, however, to prove that his alleged fear is genuine and serious. See, e.g., Smith v. A. C. & S., Inc., 843 F. 2d 854, 859 (CA5 1988) (“general concern for [one’s] future health” held insufficient to support recovery for an asbestosis sufferer’s fear of cancer);

Coffman v. Keene, 257 N. J. Super., at 293– 294, 608 A. 2d, at 424–425 (sustaining a verdict including fear-of-cancer damages where trial judge found plaintiff “ha[d] a genuine, real believable fear of cancer” (internal quotation marks omitted)). See also Minneman, 50 A. L. R. 4th, at 54–56, §5 (discussing cases affirming the view that “apprehension must be genuine”).

17 In this case, proof directed to that matter was notably thin,18 and might well have succumbed to a straightforward sufficiency-of-the-evidence objection, had Norfolk so targeted its attack.

17The asbestosis claimants here acknowledged that “a jury is entitled to consider the absence of physical manifestations [of alleged emotional disturbances] as evidence that a mental injury is less severe and therefore less deserving of a significant award.” Brief for Respondents 17.

Considering the dissents’ readiness to “develop a federal common law” to contain jury verdicts under the FELA, see post, at 5, 11–12, 16 (KENNEDY, J.); post, at 6 (BREYER, J.), it is curious that the principal dissent nevertheless questions the “basis in our FELA jurisprudence” for the requirement that claimants prove their alleged fear to be “genuine and serious,” see post, at 15 (internal quotation marks omit-ted).

In contrast to the principal dissent, JUSTICE BREYER appears ultimately to advance only an elaboration of the requirement that the plaintiff prove fear that is “genuine and serious.” He would specify, additionally, that the fear “significantly and detrimentally affec[t] the plaintiff’s ability to carry on with everyday life and work.”

Post, at 6. That elaboration, JUSTICE BREYER maintains, is “consistent with the sense of the common law.” Ibid. The definition JUSTICE BREYER would give to the terms “genuine and serious” in this context was not aired in the trial court or in this Court. See supra, at 4, 9, 19. We therefore resist ruling on it today.

18As Norfolk noted, one of the claimants did not testify to having any concern about cancer; another testified that he was more afraid of shortness of breath from his asbestosis than of cancer. Others testified to varying degrees of concern over developing the disease; no claimant presented corroborative objective evidence of his fear.

Norfolk, however, sought a larger shield. In the trial court and in its unsuccessful petition to the Supreme Court of Appeals of West Virginia, Norfolk urged that fear of cancer could figure in the recovery only if the claimant proved both a likelihood of developing cancer and physical manifestations of the alleged fear. See App. 548 (Norfolk’s charge request); Id., at 634 (amended petition for appeal).

And although Norfolk submitted proposed verdict forms, Id., at 549–560, those forms did not call for jury specification of the amount of damages, if any, awarded for fear of cancer. Thus, as earlier observed, supra, at 5, it is impossible to tell from the verdicts returned, whether the jury ascribed any part of the damages awards to the alleged cancer fear, and if so, how much.19

We did not grant review, in any event, to judge the sufficiency of the evidence or the reasonableness of the damages awards. We rule, specifically and only, on the question whether this case should be aligned with those in which fear of future injury stems from a current injury, or with those presenting a stand-alone claim for negligent infliction of emotional distress. We hold that the former categorization is the proper one under the FELA.

19In their prediction that adhering to the line drawn in Gottshall and Metro-North will, in this setting, bankrupt defendants, see post, at 3–4 (KENNEDY, J.); post, at 5–6 (BREYER, J.), the dissents largely disregard, inter alia, the verdict control devices available to the trial court.

These include, on a defendant’s request, a charge that each plaintiff must prove any alleged fear to be genuine and serious, review of the evidence on damages for sufficiency, and particularized verdict forms. Norfolk chose not to seek control measures of this order; instead, Norfolk sought to place cancer-fear damages entirely outside the jury’s ken. See supra, at 4, 9. 22 NORFOLK & WESTERN R. CO. v. AYERS Opinion of the Court

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