Justice Kennedy: Fear of Cancer Not Compensable As Pain and Suffering in Norfolk v. Ayers

Read more about the Norfolk v. Ayers case here. In this section, Justice Kennedy provides his rationale for the fear of contracting cancer due to exposure to asbestos should not be considered in determining a pain and suffering award. Exposure to asbestos is known to cause serious diseases such as mesothelioma, asbestos-related lung cancer and asbestosis.

On the other hand, as the majority acknowledges, some courts have ruled that fear of cancer should not be compensable as pain and suffering. Ante, at 12, n. 10. These decisions are based, in part, upon the “separate disease rule,” which allows a person who has recovered for injuries resulting from asbestosis to bring a new lawsuit—notwithstanding the traditional common-law proscription against splitting a cause of action—if cancer develops. See Wilson v. Johns-Manville Sales Corp., 684 F. 2d 111, 120– 121 (CADC 1982) (Ginsburg, J.). The rule has been adopted by a majority of jurisdictions, see Henderson & Twerski, Asbestos Litigation Gone Mad: Exposure-Based Recovery for Increased Risk, Mental Distress, and Medical Monitoring, 53 S. C. L. Rev. 815, 821, and n. 22 (2002) (collecting cases), and the Court does not suggest that it would not apply in cases brought under FELA.

The separate disease rule is pertinent for at least two reasons. First, it illustrates that courts have found it necessary to construct fair and sensible common-law rules for resolving the problems particular to asbestos litigation. Second, it establishes that a person with asbestosis will not be without a remedy for pain and suffering caused by cancer. That person can and will be compensated if the cancer develops. This eliminates the need courts might otherwise perceive to avert the danger that relief might be foreclosed in the future.

Courtesy of Opinion of Justice Kennedy in Norfolk & Western Railway Company, Petitioner v. Freeman Ayers et al.

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