Discussion of Justice Kennedy’s Opinion

In such cases, as JUSTICE KENNEDY points out, a rule that allows everyone who suffers some physical harm to recover damages for fear of correlated cancer threatens, in practice, to exhaust the funds available for those who develop cancer in the future, including funds available to compensate for fear of cancer that has actually developed. Ante, at 4. It is estimated, for example, that asbestos litigation has already consumed over $50 billion and that the eventual cost may substantially exceed $200 billion. RAND Institute for Civil Justice, S. Carroll et al., Asbestos Litigation Costs and Compensation: An Interim Report 81 (2002), Petitioner’s Supplemental Lodging, p. SL82 (hereinafter RAND Institute). The costs have driven dozens of companies into bankruptcy. Ante, at 4 (opinion of KENNEDY, J.). They have also largely exhausted certain funds set aside for asbestos claimants—reducing the Johns-Manville Trust for asbestos claimants, for example, from a fund that promised to pay 100% of the value of liquidated claims to a fund that now pays only 5%. RAND Institute 79–80. The concern that tomorrow’s actual cancer victims will recover nothing—for medical costs, pain, or fear—is genuine. Cf. ante, at 4 (opinion of KENNEDY, J.). And that genuine concern requires this Court to make hard choices. Members of this Court have indicated that Congress should enact legislation to help resolve the asbestos problem. See, e.g., Ortiz v. Fibreboard Corp., 527 U. S. 815, 865 (1999) (REHNQUIST, C. J., concurring). Congress has not responded. But that lack of response does not require the courts to ignore the practical problems that threaten the achievement of tort law’s basic compensatory objectives. In this case, those concerns favor a legal rule that will permit future cancer victims to recover for their injuries, including emotional suffering, even if that recovery comes at the expense of limiting the recovery for fear of cancer available to those suffering some present harm.