Opinion of Justice Kennedy on compensation in Norfolk & Western Railway, Petitioner v. Freeman Ayers

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

This Court has recognized the danger that no compensation will be available for those with severe injuries caused by asbestos. See Amchem Products, Inc. v. Windsor, 521 U. S. 591, 598 (1997) (“‘[E]xhaustion of assets threatens and distorts the process; and future claimants may lose altogether’”) (quoting Report of the Judicial Conference Ad hoc Committee on Asbestos Litigation 2–3 (Mar. 1991)); 521 U. S., at 632 (BREYER, J., concurring in part and dissenting in part). In fact the Court already has framed the question that should guide its resolution of this case:

“In a world of limited resources, would a rule permitting
immediate large-scale recoveries for widespread emotional
distress caused by fear of future disease diminish the
likelihood of recovery by those who later suffer from the
disease?” Metro-North Commuter R. Co. v. Buckley,
521 U. S. 424, 435–436 1997).

The Court ignores this question and its warning. It is only a matter of time before inability to pay for real illness comes to pass. The Court’s imprudent ruling will have been a contributing cause to this injustice.

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