The Respondents’ Claims

The respondents’ claims implicate these considerations to the same or greater degree than in Metro-North. Each respondent seeks damages for his emotional response to being told he has an increased likelihood of dying. Ibid. The extent of the distress the respondents suffered is not calculable with a precision sufficient to permit juries to award damages, for the distress is simply incremental from the fears already shared by the general population.

The respondents observe, with extensive support in the medical literature, that a person with asbestosis has a 10 percent chance of developing mesothelioma, and that 39 percent of smokers with asbestosis develop fatal lung cancer; that cohort, however, drops to 5 percent, at most, for nonsmokers with asbestosis. While these statistics might at first appear to provide the beginning of an argument for giving asbestosis sufferers recovery for fear, the average American male has a 44 percent chance of developing cancer during the course of his life, and his chance of dying from some form of cancer is more than 21 percent. See L. Ries et al., National Cancer Institute, SEER Cancer Statistics Rev., 1973–1999, Tables I–15, I–16 (2002), available at http://Seer.Cancer.gov/csr/1973_1949/ overview.pdf (as visited Feb. 10, 2003) (available in Clerk of Court’s case file). This literature also suggests that a person who smokes has more than a 50 percent chance of dying from a disease caused by tobacco use, see National Cancer Institute, Changes in Cigarette-Related Disease Risks & Their Implication for Prevention and Control, Smoking & Tobacco Control Monograph, No. 8, 1997, at xi, Table1, a risk that all but one of the respondents has incurred that is wholly separate from their exposure to asbestos.