Supreme Court Of The United States Norfolk & Western Railway co. V. Ayers et al.

Certiorari to the Circuit Court of Kanawha County, West Virginia [Decided March 10, 2003]

JUSTICE KENNEDY, with whom THE CHIEF JUSTICE, JUSTICE O’CONNOR, and JUSTICE BREYER join, concurring in part and dissenting in part.

The Court is correct, in my view, in rejecting the claim that damages awarded under the Federal Employers’ Liability Act (FELA or Act) must be apportioned according to causal contribution among even absent joint tortfeasors. Parts I, II, and IV of its opinion have my full assent.

It is otherwise as to Part III. The Court allows compensation for fear of cancer to those who manifest symptoms of some other disease, not itself causative of cancer, though stemming from asbestos exposure. The Court’s precedents interpreting FELA neither compel nor justify this result. The Court’s ruling is not based upon a sound application of the common-law principles that should inform our decisions implementing FELA. On the contrary, those principles call for a different rule, one which does not yield such aberrant results in asbestos exposure cases. These reasons require my respectful dissent.