Justice Kennedy’s Opinion: Part III

The Court, to be sure, does refer to the admonition in Metro-North that common-law rules must be adopted to avoid the risk of “‘unlimited and unpredictable liability.’” Id., at 433 (quoting Gottshall, 512 U. S. at 557). Yet the rule it adopts is an unreasoned rule of limitation—a rule that does not advance the goal of ensuring that fair and sensible principles will govern recovery for injuries caused by asbestos.

The majority ends its opinion with a plea for legislative intervention, ante, at 28, an entreaty made before, see Ortiz v. Fibreboard Corp., 527 U. S. 815, 821 (1999); Id., at 865 (REHNQUIST, C. J., concurring); Id., at 866–867 (BREYER, J., dissenting). This case arises under FELA, however, by which Congress has directed the courts, and ultimately this Court, to use their resources to develop equitable rules of decision. It is regrettable that the Court today does not accept that responsibility.

These reasons explain my dissent from Part III of the Court’s opinion.