Litigating Over the Fear of Cancer: High Court Weighs Asbestos Issue

MARCIA COYLE
National Law Journal
November 6, 2002

Brent Rosenthal authored a TLPJ amicus brief to the U.S. Supreme Court in support of the right of severely injured people to sue for emotional distress damages.

WASHINGTON -- Business frustration with the morass of asbestos litigation has erupted in a Supreme Court challenge to damages for fear of cancer.

The U.S. Chamber of Commerce, the Bush administration and others hope the case will rein in suits that are bankrupting some businesses and threatening others. Norfolk & Western Railway Co. v. Ayers, No. 01-963.

At the center of the case, to be argued on Nov. 6, is the Federal Employers Liability Act (FELA) of 1908. It allows common-carrier railroad employees to recover for work-related injuries caused by a railroad's negligence. Norfolk & Western Railway Co. and its supporters argue that FELA bars workers suffering only from asbestosis, an asbestos-related lung disease that increases the risk of cancer, from recovering damages for their fear of contracting cancer.

They also seek an end to joint and several liability under FELA -- full liability on the railroad employer except for what can be attributed to the employee's contributory negligence. In its place, they want liability to be apportioned among other potential negligent actors.

The law is relatively silent on both issues. The court will be interpreting common law tort rules, and that's where the case's significance lies, experts say.

"Even though FELA is a pretty narrow area, when the Supreme Court makes pronouncements on major issues in tort law, even if it's in a narrow area like admiralty or FELA, it is pretty influential on other courts considering the issue," says tort scholar Richard Wright of Chicago-Kent College of Law, who, with other law professors, submitted an amicus brief in support of joint and several liability.

The briefs by Norfolk and its supporters are replete with descriptions of the growth of asbestos litigation and charges of liberal venue rules, plaintiff- hungry trial lawyers and massive jury verdicts for relatively healthy plaintiffs.

"This is a case which arises under a statute which plays a peripheral role in asbestos litigation," says Richard Lazarus of Georgetown University Law Center, who will argue on behalf of the six Norfolk ex-employees. "And the court has chosen a case in which the jury awards are not remarkably large -- a total of $4.8 million for six plaintiffs. And these plaintiffs have asbestosis.

"We don't even know whether they got any money for fear of cancer because it's a general jury verdict. There are no opinions by the trial court or the appellate court. It's a really strange case to test the [cancer] issue on."

Predicting a reversal

The court generally doesn't take cases to affirm rulings, says Victor E. Schwartz of Kansas City, Mo.'s Shook, Hardy & Bacon, counsel to the Coalition for Asbestos Justice Inc., which is supporting Norfolk.

Schwartz suggests that the justices may have taken the case because their words in another asbestos-related case in 1997 (AmChem Products v. Windsor, 521 U.S. 591) went unheeded.

"In rather unusual wording, they called on Congress to take action to address what the court thought was a true crisis," he says. "Well, Congress didn't do it and there's no real sign it will. The court may want to put some limits on how far you can go with asbestos. I believe we have a good chance of winning both issues." Norfolk argues that there is no basis in the law for someone with asbestosis to recover damages for fear or concern "based solely on their perceptions of the statistical risk" of cancer.

The term "pain and suffering," Phillips says, refers to distress "stemming directly from" or "directly brought about by a physical injury." There is no accepted medical evidence that cancer results from asbestosis, he says. He also argues that common law has always required the apportionment of injury by cause on any reasonable basis.

Lazarus argues that under settled tort law, a plaintiff may recover for all reasonably foreseeable physical and mental injuries proximately resulting from the conduct that caused the initial injury. The jury found that fear of cancer was reasonably related to the asbestosis.

The Bush administration says a person can recover for emotional injuries related to cancer, but only after the cancer develops. But that view is contrary to decades of state court rulings, says Brent M. Rosenthal of Dallas' Baron & Budd, who submitted an amicus brief for Trial Lawyers for Public Justice, which backs the workers. Lazarus also argues that FELA imposes liability on Norfolk as long as its negligence caused the workers' injuries "in part." The statute allows the defendant to seek contribution from other tortfeasors.

States are "all over the lot" in their application of joint and several liability, says Schwartz.

"Joint liability was created by courts and since they created the rule, they have the power to extinguish or modify it," Schwartz says. "The Supreme Court could formulate a rule limited to asbestos claims and that could be persuasive to courts to formulate their own rule for asbestos claims."

While the apportionment of fault is very important to the railroads, it is the cancer issue that is "much more important to the future of all asbestos litigation," says Norfolk's Phillips.

"That is in some respects the gold mine in a claim if you have an asymptomatic situation or even plaintiffs with minor disease," says Phillips. "You can convert the case into a pretty major claim if you can get the jury to think about it."