Conclusions: Mental Anguish Damages from Fear of Cancer May be Recovered

We conclude that there is no reason to transfer this appeal because Ayers does not require not-in-MAI instructions detailing or explaining damages based on a fear of developing cancer. In Ayers, plaintiffs had been diagnosed with asbestosis caused by exposure to asbestos at their workplace. Plaintiffs pursued a claim for damages in state court, including damages for mental anguish, resulting from their fear of developing cancer. The railroad employer sought a jury instruction that disallowed fear of cancer damages except for those plaintiffs who proved both "an actual likelihood of developing cancer" and "physical manifestations" of the alleged fear. The trial court rejected this instruction, and instead, instructed that "[A]ny plaintiff who has demonstrated that he has developed a reasonable fear of cancer that is related to proven physical injury from asbestos is entitled to be compensated for that fear as a part of the damages you may award for pain and suffering."

The Court held that the "mental anguish damages resulting from the fear of developing cancer may be recovered under the FELA by a railroad worker suffering from the actionable asbestosis caused by work-related exposure to asbestos." However, although the state trial court in Ayers had instructed the jury on damages for fear of developing cancer, the Court in Ayers did not discuss or authorize jury instructions on this issue, but merely ruled on substantive law. Since the form of instructions is a matter of Missouri law, the Ayers holding does not require a change to the form of approved MAI instructions.

Tendered instructions A and B were not authorized by MAI. The trial court did not err in rejecting them. Point two is denied.

The judgment of the trial court is affirmed.

Courtesy of Missouri Court of Appeals: Timothy P. Hedgecorth v. Union Pacific Railroad Co

see also:

Asbestos: Plaintiff damages NY lawyers: Footnotes regarding asbestos case and plaintiff's damages
Free case review and information on damages for asbestos plaintiff

Railroad Found Liable Asbestos Decision: Railroad Found Liable--Get a Free Lawsuit Review
Court Ruling on Asbestos: Railroad Found Liable--Mesothelioma Lawyers

Hedgecorth vs. Union Pacific Asbestos Decision: Timothy Hedgecorth versus Union Pacific
Asbestos Case in Missouri: Timothy Hedgecorth vs. Union Pacific