OCTOBER TERM, 2002
Syllabus
NORFOLK & WESTERN RAILWAY
CO. v. AYERS ET
AL.
CERTIORARI TO THE CIRCUIT COURT OF KANAWHA COUNTY, WEST
VIRGINIA
No. 01-963. Argued November 6, 2002-Decided March 10,2003
Alleging that petitioner Norfolk & Western Railway Company
(Norfolk) had negligently exposed them to asbestos and thereby
caused them to contract the occupational disease asbestosis,
respondents, six former Norfolk employees (asbestosis claimants),
brought this suit in a West Virginia state court under the Federal
Employers' Liability Act (FE LA or Act). Section 1 of the FELA
provides: "Every common carrier by railroad while engaging in
[interstate commerce], shall be liable in damages to any person
suffering injury while he is employed by such carrier in such
commerce ... for such injury ... resulting in whole or in part from
the [carrier's] negligence." As an element of their damages, the
asbestosis claimants sought recovery for mental anguish based on
their fear of developing cancer. The trial court instructed the
jury that a plaintiff who demonstrated a reasonable fear of cancer
related to proven physical injury from asbestos was entitled to
compensation for that fear as a part of the damages awardable for
pain and suffering. The court also instructed the jury not to
reduce recoveries because of nonrailroad exposures to asbestos, so
long as the jury found that Norfolk was negligent and that dust
exposures at Norfolk contributed, however slightly, to each
plaintiff's injuries. The court rejected Norfolk's proposed
instructions, which would have (1) ruled out damages for fear of
cancer unless the claimant proved both an actual likelihood of
developing cancer and physical manifestations of the alleged fear,
and (2) required the jury to apportion damages between Norfolk and
other employers alleged to have contributed to an asbestosis
claimant's disease. The jury returned damages awards for each
claimant. The Supreme Court of Appeals of West Virginia denied
discretionary review.
Held:
1. Mental anguish damages resulting from the fear of developing
cancer may be recovered under the FELA by a railroad worker
suffering from the actionable injury asbestosis caused by
work-related exposure to asbestos. Pp. 145-159.
(a) The trial judge correctly stated the law when he charged the
jury that an asbestosis claimant, upon demonstrating a reasonable
fear of cancer stemming from his present disease, could recover for
that fear
136
as part of asbestosis-related pain and suffering damages. In so
ruling, this Court follows the path marked by its decisions in
Consolidated Rail Corporation v.
Gottshall, 512 U. S. 532, and
Metro-North Commuter R. Co. v.
Buckley, 521 U. S. 424.
Gottshall and
Metro-North describe two categories of
claims for emotional distress damages: Stand-alone emotional
distress claims not provoked by any physical injury, for which
recovery is sharply circumscribed by the common-law zone-of-danger
test; and emotional distress claims brought on by a physical
injury, for which pain and suffering recovery is permitted. This
case is properly placed in the emotional distress stemming from a
physical injury category. The parties agree that the claimants
suffer from asbestosis, a cognizable injury under the FELA. As
Metro-North plainly indicates, when fear of cancer
"accompanies a physical injury," pain and suffering damages may
include compensation for that fear.
E. g., 521 U. S.,
at 430. The Court adheres to the clear line its recent decisions
delineate. Pp. 145-148.
(b) Unlike stand-alone claims for negligently inflicted
emotional distress, claims for pain and suffering associated with a
physical injury are traditionally compensable. By 1908, when the
FELA was enacted, the common law had evolved to encompass
apprehension of future harm as a component of pain and suffering.
In recent years, of the many courts that have ruled on the question
presented here, a clear majority sustain recovery. Arguing against
this trend, Norfolk and its
amici assert that the asbestosis
claimants' alleged cancer fears are too remote from asbestosis to
warrant inclusion in their pain and suffering awards.
Amicus
United States refers to the "separate disease rule," under which
most courts have held that the statute of limitations runs
separately for each asbestos-related disease. Because the
asbestosis claimants may bring a second action if cancer develops,
the Government argues, cancer-related damages are unwarranted here.
The question, as the Government frames it, is not
whether
the asbestosis claimants can recover for fear of cancer, but
when. But those claimants did not seek, and the trial court
did not allow, discrete damages for their
increased risk of
future cancer. Instead, they sought damages for their
current injury, which, they allege, encompasses a
present
fear that the toxic exposure causative of asbestosis may later
result in cancer. The Government's
"when, not
whether," argument has a large gap; it excludes recovery for
any fear experienced by an asbestosis sufferer who never gets
cancer. To be compensable as pain and suffering, Norfolk further
urges, a mental or emotional harm must have been "directly brought
about by a physical injury." This argument elides over a key
connection between Norfolk's conduct and the damages the asbestosis
claimants allege as part of their pain and suffering: Once found
liable for any bodily harm, a negligent
137
actor is answerable in damages under the common law for
emotional disturbance resulting from that harm or from the conduct
which causes it. Given the acknowledgment by Norfolk's expert that
asbestosis puts a worker in a heightened risk category for
asbestos-related lung cancer, as well as the undisputed testimony
of the asbestosis claimants' expert that some ten percent of
asbestosis sufferers have died of mesothelioma, the claimants would
have good cause for increased apprehension about their
vulnerability to cancer. Although
Metro-North stressed that
holding employers liable to workers merely exposed to asbestos
would risk "unlimited and unpredictable liability," 521 U. S., at
435, that decision sharply distinguished exposure-only plaintiffs
from those who suffer from a disease, and stated, unambiguously,
that the common law permits emotional distress recovery for the
latter category,
e. g., id., at 436. The categorical
exclusion of exposure-only claimants reduces the universe of
potential claimants to numbers neither "unlimited" nor
"unpredictable," for, of those exposed to asbestos, only a small
fraction will develop asbestosis. Pp. 148-157.
(c) The Court affirms the qualification of an asbestosis
sufferer to seek compensation for fear of cancer as an element of
his asbestosisrelated pain and suffering damages, but with an
important reservation. It is incumbent upon the complainant to
prove that his alleged fear is genuine and serious. In this case,
proof directed to that matter was notably thin, and might well have
succumbed to a straightforward sufficiency-of-the-evidence
objection, had Norfolk so targeted its attack. But Norfolk,
instead, sought categorical exclusion of cancer-fear damages for
asbestosis claimants. This Court, moreover, did not grant review to
judge the sufficiency of the evidence or the reasonableness of the
damages awards. Pp. 157-159.
2. The FELA's express terms, reinforced by consistent judicial
applications of the Act, allow a worker to recover his entire
damages from a railroad whose negligence jointly caused an injury,
thus placing on the railroad the burden of seeking contribution
from other potential tortfeasors. Pp. 159-166.
(a) The statutory language supports the trial court's
understanding that the FELA does not provide for apportionment of
damages between railroad and nonrailroad causes. Section 1 of the
Act makes common carrier railroads "liable in damages to any person
suffering injury while he is employed by such carrier in such
commerce ... for such injury ... resulting in whole or in part from
the negligence of such carrier." 45 U. S. C. § 51. The claimants
here suffer from asbestosis (an "injury"), which is linked to their
employment with Norfolk and "result[ed] in whole or in part from
... negligence" by Norfolk. Norfolk is therefore "liable in damages
...
for such injury." Nothing in the statutory text
138
instructs that the amount of damages payable by a liable
employer bears reduction when the negligence of a third party also
contributed in part to the injury-in-suit. Norfolk maintains that
the statutory language conveying that a railroad is liable only for
injuries an employee sustains "while he is employed by such
carrier" makes it clear that railroads are not liable for employee
injuries resulting from outside causes. Placed in context, however,
the clause on which Norfolk relies clarifies that the FELA's reach
is limited to injuries sustained by railroad employees while the
employees are themselves engaged in interstate commerce; the
provision does not speak to cases in which an injury has multiple
causes, some related to railroad employment and others unrelated to
that employment. Moreover, interpreting § 1 to require
apportionment would put that provision in tension with the rest of
the statute. Several of the FELA's provisions expand a railroad's
liability by abolishing common-law defenses that limited employees'
ability to recover against their employers. And although the Act
expressly directs apportionment of responsibility between employer
and employee based on comparative fault, it expressly prescribes no
other apportionment. Pp. 159-161.
(b) Norfolk's view also runs counter to a century of FELA
jurisprudence. No FELA decision made by this Court so much as hints
that the statute mandates apportionment of damages among
potentially liable tortfeasors. Also significant, there is scant
lower court authority for the proposition that the FELA
contemplates apportionment, and this Court has repeatedly stated
that joint and several liability is the traditional rule, see,
e. g., The "Atlas," 93 U. S. 302, 315. Norfolk
contends that the modern trend is to apportion damages between
multiple tortfeasors. The state of affairs when the FELA was
enacted, however, is the more important guide. See,
e. g.,
Monessen Southwestern R. Co. v.
Morgan, 486 U. S. 330, 336-339.
At any rate, many States retain full joint and several liability,
even more retain it in certain circumstances, and most of the
recent changes away from the traditional rule have come through
legislative enactments rather than judicial development of
common-law principles. Congress, however, has not amended the FELA.
Finally, reading the FELA to require apportionment would handicap
plaintiffs and could vastly complicate adjudications. Once an
employer has been adjudged negligent with respect to a given
injury, it accords with the FELA's overarching purpose to require
the employer to bear the burden of identifying other responsible
parties and demonstrating that some of the costs of the injury
should be spread to them. Pp. 161-166.
Affirmed.
139
GINSBURG, J., delivered the opinion for a unanimous Court with
respect to Parts I, II, and IV, and the opinion of the Court with
respect to Part III, in which STEVENS, SCALIA, SOUTER, and THOMAS,
JJ., joined. KENNEDY, J., filed an opinion concurring in part and
dissenting in part, in which REHNQUIST, C. J., and O'CONNOR and
BREYER, JJ., joined,
post, p. 166. BREYER, J., filed an
opinion concurring in part and dissenting in part,
post, p.
182.
Carter G. Phillips argued the cause for petitioner. With him on
the briefs were Stephen B. Kinnaird, Fred Adkins, Rodney L. Baker
II, and Laura D. Hunt.
David B. Salmons argued the cause pro hac vice for the United
States as amicus curiae urging reversal. With him on the brief were
Solicitor General Olson, Assistant Attorney General McCallum,
Deputy Solicitor General Clement, Anthony
J. Steinmeyer, and
Peter R. Maier.
Richard J. Lazarus argued the cause for
respondents.
With him on the brief were James A. McKowen, James H. Rion, Jr.,
and Lawrence M. Mann.*
*Briefs of amici curiae urging reversal were filed for the
Association of American Railroads by Daniel Saphire, Randall A.
Jordan, Mary Helen Moses, and William A. Brasher; for the American
Insurance Association by Seth P. Waxman, Edward C. DuMont, Kimberly
Parker, Craig A. Berrington, and Lynda S. Mounts; for the Chamber
of Commerce of the United States by Evan M. Tager, Eileen Penner,
Miriam R. Nemetz, and Robin S. Conrad; and for Trial Lawyers for
Public Justice by Arthur
Briefs of
amici curiae urging affirmance were filed for
the State of West Virginia et al. by
Darrell V. McGraw, Jr.,
Attorney General of West Virginia,
Frances Ann Hughes,
Managing Deputy Attorney General,
Silas Taylor, Senior
Deputy Attorney General, and
Robert Kono, Acting Attorney
General of Guam, and by the Attorneys General for their respective
States as follows:
Bill Lockyer of California,
M. Jane
Brady of Delaware,
Thomas J. Miller of
Iowa, G.
Steven Rowe of Maine,
J. Joseph Curran,
Jr., of Maryland,
Thomas F.
Reilly of
Massachusetts,
Mike Hatch of Minnesota,
Jeremiah W (Jay)
Nixon of Missouri,
Mike McGrath of Montana,
Philip T.
McLaughlin of New Hampshire,
Patricia A. Madrid of New
Mexico,
Eliot Spitzer of New York,
Roy Cooper of
North Carolina,
W A. Drew Edmondson of Oklahoma,
Hardy
Myers of Oregon,
Sheldon Whitehouse of Rhode Island, and
William H. Sorrell of Vermont; and for the
140
JUSTICE GINSBURG delivered the opinion of the Court. The Federal
Employers' Liability Act (FELA or Act), 35 Stat. 65, as amended, 45
U. S. C. §§ 51-60, makes common carrier railroads liable in damages
to employees who suffer work-related injuries caused "in whole or
in part" by the railroad's negligence. This case, brought against
Norfolk & Western Railway Company (Norfolk) by six former
employees now suffering from asbestosis (asbestosis claimants),
presents two issues involving the FELA's application. The first
issue concerns the damages recoverable by a railroad worker who
suffers from the disease asbestosis: When the cause of that
disease, in whole or in part, was exposure to asbestos while on the
job, may the worker's recovery for his asbestosis-related "pain and
suffering" include damages for fear of developing cancer?
The second issue concerns the extent of the railroad's liability
when third parties not before the court-for example, prior or
subsequent employers or asbestos manufacturers or suppliers-may
have contributed to the worker's injury. Is the railroad answerable
in full to the employee, so that pursuit of contribution or
indemnity from other potentially liable enterprises is the
railroad's sole damages-award-sharing recourse? Or is the railroad
initially entitled to an apportionment among injury-causing
tortfeasors, i.
e., a division of
American Federation of Labor and Congress of Industrial
Organizations et al. by
Jonathan P. Hiatt, Robert Alexander,
Leon Dayan, and
Laurence Gold.
Briefs of amici curiae were filed for American Law Professors by
Ned Miltenberg; for the American Public Health Association by Scott
L. Nelson, David C. Vladeck, and Brian Wolfman; for the Brotherhood
of Locomotive Engineers by William G. Jungbauer and Keith A.
Queensen; for the Coalition for Asbestos Justice, Inc., et al. by
Victor E. Schwartz, Mark A. Behrens, Walter E. Dellinger III,
Pamela A. Harris, Jan S. Amundson, David F. Zoll, Donald D. Evans,
and David T. Deal; for the United Transportation Union by Clinton
J. Miller III; and for the Washington Legal Foundation by
Griffin B. Bell, Jeffrey S. Bucholtz, Daniel
J. Popeo, and
Richard A. Samp.
141
damages limiting the railroad's liability to the injured
employee to a proportionate share?
In resolving the first issue, we follow the line drawn by
Metro-North Commuter R. Co. v.
Buckley, 521 U. S. 424 (1997), a
decision that relied on and complemented
Consolidated Rail
Corporation v.
Gottshall, 512 U. S. 532 (1994). In
Metro-North, we held that emotional distress damages may not
be recovered under the FELA by disease-free asbestos-exposed
workers; in contrast, we observed, workers who "suffe[r] from a
disease" (here, asbestosis) may "recover for related negligently
caused emotional distress." 521 U. S., at 432. We decline to blur,
blend, or reconfigure our FELA jurisprudence in the manner urged by
the petitioner; instead, we adhere to the clear line our recent
decisions delineate. Accordingly, we hold that mental anguish
damages resulting from the fear of developing cancer may be
recovered under the FELA by a railroad worker suffering from the
actionable injury asbestosis caused by work-related exposure to
asbestos.
As to the second issue, we similarly decline to write new law by
requiring an initial apportionment of damages among potential
tortfeasors. The FELA's express terms, reinforced by consistent
judicial applications of the Act, allow a worker to recover his
entire damages from a railroad whose negligence jointly caused an
injury (here, the chronic disease asbestosis), thus placing on the
railroad the burden of seeking contribution from other
tortfeasors.
I
The asbestosis claimants (plaintiffs below, respondents here)
brought this FELA action against their former employer, Norfolk, in
the Circuit Court of Kanawha County, West Virginia.1 Norfolk, they
alleged, negligently exposed them to asbestos, which caused them to
contract the occupa-
1 FELA cases may be brought, at plaintiff's option, in federal
court or in state court. 45 U. S. C. § 56.
142
tional disease asbestosis. App. 17-20.2 As an element of their
occupational disease damages, the asbestosis claimants sought
recovery for mental anguish based on their fear of developing
cancer.
Id., at 21.
Before trial, Norfolk moved to exclude all evidence referring to
cancer as irrelevant and prejudicial.
Id., at 52-53. The
trial court denied the motion, Tr. 251 (Apr. 14, 1998), and the
asbestosis claimants placed before the jury extensive evidence
relating to cancer, including expert testimony that asbestosis
sufferers with smoking histories have a significantly increased
risk of developing lung cancer.3 (Of the six asbestosis claimants,
five had smoking histories, and two persisted in smoking even after
their asbestosis diagnosis. App. 265, 336-337.) Asbestosis
sufferers-workers whose exposure to asbestos has manifested itself
in a chronic disease-the jury also heard, have a significant (one
in ten) risk of dying of mesothelioma, a fatal cancer of the lining
of the lung or abdominal cavity.
Id., at 92-97 (asbestosis
claimants' expert);
id., at 472 (Norfolk's expert) (nine or
ten percent).4
2 Asbestosis is a noncancerous scarring of the lungs by asbestos
fibers; symptoms include shortness of breath, coughing, and
fatigue. Ranging in severity from mild to debilitating, it is a
chronic disease that, in rare instances, is fatal. See RAND
Institute for Civil Justice, S. Carroll et al., Asbestos Litigation
Costs and Compensation: An Interim Report 17 (2002), Petitioner's
Supplemental Lodging, p. SL82 (hereinafter RAND Institute); U. S.
Dept. of Health and Human Services, Agency for Toxic Substances and
Disease Registry, Asbestos Toxicity 20 (2000).
3 The risk of mortality from lung cancer for smokers with
asbestosis, the trial evidence showed, is 39 percent. App. 93-94
(asbestosis claimants' expert);
id., at 473 (Norfolk's
expert). For nonsmokers, the risk is much lower, approximately 2.5
percent.
Ibid.
4 While smoking contributes significantly to the risk of lung
cancer, it does not bear on the risk of mesothelioma.
Id.,
at 93. Asbestos is the only cause of mesothelioma established thus
far, although some instances of the disease are not traceable to
asbestos. RAND Institute 17. The latency period for
asbestos-related disease is generally 20-40 years from exposure.
Id., at 16.
143
Concluding that no asbestosis claimant had shown he was
reasonably certain to develop cancer, the trial court instructed
the jury that damages could not be awarded to any claimant "for
cancer or any increased risk of cancer."
Id., at 573. The
testimony about cancer, the court explained, was relevant "only to
judge the genuineness of plaintiffs' claims of fear of developing
cancer."
Ibid. On that score, the court charged:
"[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."
Ibid.
In so instructing the jury, the court rejected Norfolk's
proposed instruction, which would have ruled out damages for an
asbestosis sufferer's fear of cancer, unless the claimant proved
both "an actual likelihood of developing cancer" and "physical
manifestations" of the alleged fear. See
id., at 548.
The trial court also refused Norfolk's request to instruct the
jury to apportion damages between Norfolk and other employers
alleged to have contributed to an asbestosis claimant's disease.
Id., at 539.5 Two of the claimants had significant exposure
to asbestos while working for other employers: Carl Butler, exposed
to asbestos at Norfolk for only three months, worked with asbestos
elsewhere as a pipefitter for 33 years,
id., at 250, 252,
375; Freeman Ayers was exposed to asbestos for several years while
working at auto-
5 The apportionment instruction Norfolk proposed stated: "If you
find that the plaintiff in this case has a condition or disease
which was caused by his employment with employers other than the
railroad, plaintiff's recovery must be limited to only such damages
as result from his railroad employment and he cannot recover
damages which have been or will be caused by his nonrailroad
employment. This is so because the railroad can be held responsible
only for such of a plaintiff's damages as result from its alleged
negligence while the plaintiff was employed at the railroad." App.
539.
144
body shops,
id., at 274-275. In awarding damages, the
trial court charged, the jury was "not to make a deduction for the
contribution of non-railroad exposures," so long as it found that
Norfolk was negligent and that "dust exposures at [Norfolk]
contributed, however slightly, to the plaintiff's injuries."
Id., at 570.6
The jury returned total damages awards for each asbestosis
claimant, ranging from $770,000 to $1.2 million.
Id., at
578-589. After reduction for three claimants' comparative
negligence from smoking and for settlements with nonFELA entities,
the final judgments amounted to approximately $4.9 million.
Id., at 590-613. It is impossible to look behind those
judgments to determine the amount the jury awarded for any
particular element of damages. Norfolk, although it could have done
so, see W. Va. Rule Civ. Proc. 49 (1998), did not endeavor to
clarify the jury's damages determinations; it did not seek a
special verdict or interrogatory calling upon the jury to report,
separately, its assessments, if any, for fear-of-cancer
damages.
The trial court denied Norfolk's motion for a new trial, App. to
Pet. for Cert. 4a, and the Supreme Court of Appeals of West
Virginia denied Norfolk's request for discretionary review,
id., at 1a-2a. We granted certiorari, 535 U. S. 969 (2002),
and now affirm.
II
Section 1 of the FELA renders common carrier railroads "liable
in damages to any person suffering injury while ... employed by
[the] carrier" if the "injury or death result[ed] in whole or in
part from the [carrier's] negligence."
6 As required by the FELA, the trial court directed the jury to
determine whether negligence by any of the asbestosis claimants
contributed to their injuries and to compare any such negligence
with that of Norfolk "in terms of percentages."
Id., at
570-571; see 45 U. S. C. § 53 ("contributory negligence shall not
bar a recovery, but the damages shall be diminished by the jury in
proportion to the amount of negligence attributable to such
employee").
145
45 U. S. C. § 51. Enacted in 1908, Congress designed the FELA to
"shif[t] part of the 'human overhead' of doing business from
employees to their employers."
Gottshall, 512 U. S., at 542
(quoting
Tiller v.
Atlantic Coast Line R. Co., 318 U.
S. 54, 58 (1943)). "[T]o further [the Act's] humanitarian purposes,
Congress did away with several common-law tort defenses that had
effectively barred recovery by injured workers."
Gottshall,
512 U. S., at 542. As cataloged in
Gottshall, the FELA
"abolished the fellow servant rule"; "rejected the doctrine of
contributory negligence in favor of ... comparative negligence";
"prohibited employers from exempting themselves from [the] FELA
through contract"; and, in a 1939 amendment, "abolished the
assumption of risk defense."
Id., at 542-543; see 45 U. S.
C. §§ 51-55. "Only to the extent of these explicit statutory
alterations," however, "is [the] FELA 'an avowed departure from the
rules of the common law.'"
Gottshall, 512 U. S., at 544
(quoting
Sinkler v.
Missouri Pacific R. Co., 356 U. S. 326, 329
(1958)). When the Court confronts a dispute regarding what injuries
are compensable under the statute,
Gottshall instructs,
common-law principles "are entitled to great weight in our
analysis." 512 U. S., at 544; see
id., at 558 (SOUTER, J.,
concurring) (The Court's duty "is to develop a federal common law
of negligence under FELA, informed by reference to the evolving
common law.").
III A
We turn first to the question whether the trial judge correctly
stated the law when he charged the jury that an asbestosis
claimant, upon demonstrating a reasonable fear of cancer stemming
from his present disease, could recover for that fear as part of
asbestosis-related pain and suffering damages. See
supra, at
143. In answering this question, we follow the path marked by the
Court's decisions in
Consolidated
146
Rail Corporation v. Gottshall,
512 U. S. 532 (1994), and
Metro-North Commuter R. Co. v. Buckley,
521 U. S. 424 (1997).
The FELA plaintiff in
Gottshall alleged that he witnessed
the death of a co-worker while on the job, and that the episode
caused him severe emotional distress. 512 U. S., at 536-537. He
sought to recover damages from his employer, Conrail, for "mental
or emotional harm ... not directly brought about by a physical
injury."
Id., at 544.
Reversing the Court of Appeals' judgment in favor of the
plaintiff, this Court stated that uncabined recognition of claims
for negligently inflicted emotional distress would "hol[d] out the
very real possibility of nearly infinite and unpredictable
liability for defendants."
Id., at 546. Of the "limiting
tests ... developed in the common law,"
ibid., the Court
selected the zone-of-danger test to delineate "the proper scope of
an employer's duty under [the] FELA to avoid subjecting its
employees to negligently inflicted emotional injury,"
id.,
at 554. That test confines recovery for stand-alone emotional
distress claims to plaintiffs who: (1) "sustain a physical impact
as a result of a defendant's negligent conduct"; or (2) "are placed
in immediate risk of physical harm by that conduct"-that is, those
who escaped instant physical harm, but were "within the zone of
danger of physical impact."
Id., at 547-548 (internal
quotation marks omitted). The Court remanded
Gottshall for
reconsideration under the zone-of-danger test.
Id., at
558.
In
Metro-North, the Court applied the zone-of-danger test
to a claim for damages under the FELA, one element of which was
fear of cancer stemming from exposure to asbestos. The plaintiff in
Metro-North had been intensively exposed to asbestos while
working as a pipefitter for MetroNorth in New York City's Grand
Central Terminal. At the time of his lawsuit, however, he had a
clean bill of health. The Court rejected his entire claim for
relief. Exposure alone, the Court held, is insufficient to show
"physical im-
147
pact" under the zone-of-danger test. 521 U. S., at 430. "[A]
simple (though extensive) contact with a carcinogenic substance,"
the Court observed, "does not ... offer much help in separating
valid from invalid emotional distress claims."
Id., at 434.
The evaluation problem would be formidable, the Court explained,
"because contacts, even extensive contacts, with serious
carcinogens are common."
Ibid. "The large number of those
exposed and the uncertainties that may surround recovery," the
Court added, "suggest what
Gottshall called the problem of
'unlimited and unpredictable liability.'"
Id., at 435
(quoting 512 U. S., at 557).
As in
Gottshall, the Court distinguished stand-alone
distress claims from prayers for damages for emotional pain and
suffering tied to a physical injury: "Common-law courts," the Court
recognized,
"do permit a plaintiff
who suffers from a
disease to recover for related negligently caused emotional
distress .... " 521 U. S., at 432 (emphasis added). When a
plaintiff suffers from a disease, the Court noted, common-law
courts have made "a special effort" to value related emotional
distress, "perhaps from a desire to make a physically injured
victim whole or because the parties are likely to be in court in
any event."
Id., at 436-437.
In sum, our decisions in
Gottshall and
Metro-North
describe two categories: Stand-alone emotional distress claims not
provoked by any physical injury, for which recovery is sharply
circumscribed by the zone-of-danger test; and emotional distress
claims brought on by a physical injury, for which pain and
suffering recovery is permitted. Norfolk, whose position the
principal dissent embraces, see,
e. g., post, at 172, 177
(KENNEDY, J., concurring in part and dissenting in part), would
have us ally this case with those in the stand-alone emotional
distress category, Brief for Petitioner 16-31; the asbestosis
claimants urge its placement in the
148
emotional distress brought on by a physical injury (or disease)
category, Brief for Respondents 26.7
Relevant to this characterization question, the parties agree
that asbestosis is a cognizable injury under the FELA. See
Urie v.
Thompson, 337 U. S. 163, 187 (1949)
(occupational diseases caused by exposure to hazardous dusts are
injuries under the FELA). Norfolk does not dispute that the
claimants suffer from asbestosis, see Tr. of Oral Arg. 4, or that
asbestosis can be "a clinically serious, often disabling, and
progressive disease," Reply Brief 6 (internal quotation marks
omitted). As
Metro-North plainly indicates, pain and
suffering damages may include compensation for fear of cancer when
that fear "accompanies a physical injury." 521 U. S., at 430; see
id., at 436 ("The common law permits emotional distress
recovery for that category of plaintiffs who suffer from a
disease."). Norfolk, therefore, cannot plausibly maintain that the
claimants here, like the plaintiff in
Metro-North, "are
disease and symptom free."
Id., at 432. The plaintiffs in
Gottshall and
Metro-North grounded their suits on
claims of negligent infliction of emotional distress. The claimants
before us, in contrast, complain of a negligently inflicted
physical injury (asbestosis) and attendant pain and suffering.
B
Unlike stand-alone claims for negligently inflicted emotional
distress, claims for pain and suffering associated with, or
"parasitic" on, a physical injury are traditionally compensable.
The Restatement (Second) of Torts § 456 (1963-1964) (hereinafter
Restatement) states the general rule:
"If the actor's negligent conduct has so caused any
bodily harm to another as to make him liable for it, the actor is
also subject to liability for
7 JUSTICE BREYER, it appears, would not place this case in
either of the two above-described categories, but somewhere in
between. See
post, at 187 (opinion concurring in part and
dissenting in part).
149
"(a) fright, shock, or other emotional disturbance
resulting from the bodily harm or from the conduct which causes it
.... " (Emphases added.)
A plaintiff suffering bodily harm need not allege physical
manifestations of her mental anguish.
Id., Comment
c.
"The plaintiff must of course present evidence that she has
suffered, but otherwise her emotional distress claims, in whatever
form, are fully recoverable." D. Dobbs, Law of Torts 822
(2000).
By 1908, when the FELA was enacted, the common law had evolved
to encompass apprehension of future harm as a component of pain and
suffering. The future harm, genuinely feared, need not be more
likely than not to materialize. See Minneman, Future Disease or
Condition, or Anxiety Relating Thereto, as Element of Recovery, 50
A. L. R. 4th 13, 25, § 2[a] (1986) (mental anguish related to
physical injury is recoverable even if "the underlying future
prospect is not itself compensable inasmuch as it is not
sufficiently likely to occur"). Physically injured plaintiffs, it
is now recognized, may recover for "reasonable fears" of a future
disease. Dobbs,
supra, at 844. As a classic example,
plaintiffs bitten by dogs succeeded in gaining recovery, not only
for the pain of the wound, but also for their fear that the bite
would someday result in rabies or tetanus. The wound might heal,
but "[t]he ghost of hydrophobia is raised, not to down during the
life-time of the victim."
The Lord Derby, 17 F.2d 5, 267 (ED
La. 1883).8
8 See also
Gamer v.
Winchester, 110 S. W. 2d 1190,
1193 (Tex. Civ. App. 1937) (rabies, lockjaw, blood poisoning);
Serio v.
American Brewing Co., 141 La. 290,299,74 So.
998, 1001 (1917) (hydrophobia);
Ayers v.
Macoughtry,
29 Okla. 399, 402, 117 P. 1088, 1090 (1911) (fear of rabies);
Buck v.
Brady, 110 Md. 568, 573, 73 A. 277, 279
(1909) (hydrophobia);
Heintz v.
Caldwell, 9 Ohio Cir.
Dec. 412 (1898) (hydrophobia and lockjaw);
Warner v.
Chamberlain, 12 Del. 18,21, 30 A. 638, 639 (1884)
(hydrophobia);
Godeau v.
Blood, 52 Vt. 251 (1880)
(apprehension of poison from dog bite).
150
In the course of the 20th century, courts sustained a variety of
other "fear-of" claims.9 Among them have been claims for fear of
cancer. Heightened vulnerability to cancer, as one court observed,
"must necessarily have a most depressing effect upon the injured
person. Like the sword of Damocles," he knows it is there, but not
whether or when it will fall.
Alley v.
Charlotte Pipe
&
Foundry Co., 159 N. C. 327, 331, 74 S. E. 885, 886
(1912).10
Many courts in recent years have considered the question
presented here-whether an asbestosis claimant may be compensated
for fear of cancer. Of decisions that address
9 See,
e. g., Goodmaster v.
Houser, 225 Conn. 637,
647, 625 A. 2d 1366, 1371 (1993) (apprehension that motor vehicle
accident injury would necessitate future surgery, risking facial
nerve paralysis);
Laxton v.
Orkin Exterminating Co.,
639 S. W. 2d 431, 434 (Tenn. 1982) (fear of illness from drinking
contaminated well water);
Baylor v.
Tyrrell, 177 Neb.
812, 824826, 131 N. W. 2d 393, 401-402 (1964) (fear of
deterioration of hip bone following motor vehicle accident);
Schneider v.
Chalfonte Builders, Inc., 11 Bucks 122
(Pa. Ct. Common Pleas 1961) (fear that contaminated water causing
gastrointestinal ailments would later cause a more grave disease,
e. g., typhoid fever);
Figlar v.
Gordon, 133
Conn. 577, 585, 53 A. 2d 645, 648 (1947) (fear that brain injury
from motor vehicle accident would lead to epilepsy);
Southern
Kansas R. Co. of Texas v.
McSwain, 55 Tex. Civ. App.
317, 319, 118 S. W. 874, 875 (1909) (apprehension of blood
poisoning from foot injury);
Butts v.
National Exchange
Bank, 99 Mo. App. 168,173, 72 S. W. 1083, 1084 (1903)
(same).
10 See also
Sterling v.
Velsicol Chemical Corp.,
855 F.2d
1188, 1206
(CA6 1988) (fear of cancer from ingestion of
contaminated well water);
Clark v.
Taylor, 710 F.2d
4, 14
(CA1 1983) (fear of bladder cancer from "benzidine
test" on prisoner to detect blood on skin);
Dempsey v.
Hartley, 94 F. Supp. 918, 921 (ED Pa. 1951) (injuries to
breasts);
Zieber v.
Bogert, 565 Pa. 376, 383, 773 A.
2d 758, 762 (2001) (fear of a recurrence of cancer when first
cancer was untimely diagnosed as a result of medical malpractice);
Anderson v.
Welding Testing Laboratory, Inc., 304 So.
2d 351, 353 (La. 1974) (handling of radioactive pill);
Lorenc v.
Chemirad Corp., 37 N. J. 56, 76, 179 A. 2d
401, 411 (1962) (toxic chemical spilled on hand);
Ferrara v.
Galluchio, 5 N. Y. 2d 16, 20-21, 152 N. E. 2d 249, 252-253
(1958) (radiation burn on shoulder);
Coover v.
Painless
Parker, Dentist, 105 Cal. App. 110, 115, 286 P. 1048, 1050
(1930) (X-ray burns).
151
the issue, a clear majority sustain recovery. See,
e.
g., Hoerner v.
Anco Insulations, Inc.,
2000-2333, p. 49 (La. App. 1/23/02), 812 So. 2d 45, 77 (fear of
cancer testimony "appropriately presented in order to prove
[asbestosis claimant's] general damage claim");
Beeman v.
Manville Corp. Asbestos Disease Compensation Fund, 496 N. W.
2d 247, 252-253 (Iowa 1993) (cancer evidence held admissible to
show reasonableness of asbestosis claimant's fear of cancer);
Denton v.
Southern R. Co., 854 S. W. 2d 885, 888-889
(Tenn. App. 1993) (FE LA decision holding erroneous "Trial Court's
exclusion of evidence about [asbestosis claimant's] fear of
cancer");
Celotex Corp. v.
Wilson, 607 A. 2d 1223,
1229-1230 (Del. 1992) (sustaining jury charge allowing damages for
asbestosis claimants' fear of cancer);
Coffman v.
Keene
Corp., 257 N. J. Super. 279, 293-294, 608 A. 2d 416, 424-425
(1992) (sustaining award of damages that included compensation for
asbestosis claimant's fear of cancer);
Fibreboard Corp. v.
Pool, 813 S. W. 2d 658, 666, 675-676 (Tex. App. 1991)
(sustaining jury charge allowing fear of cancer damages for
plaintiff with "confirmed asbestosis");
Sorenson v.
Raymark Industries, Inc., 51 Wash. App. 954, 958, 756 P. 2d
740, 742 (1988) (evidence of increased risk of cancer held
"admissible to establish, as a damage factor, the reasonableness of
[an asbestosis claimant's]
fear that he would contract
cancer");
Eagle-Picher Industries, Inc. v.
Cox, 481
So. 2d 517, 529 (Fla. App. 1985) (asbestosis claimants may recover
for fear of cancer);
Devlin v.
Johns-Manville Corp.,
202 N. J. Super. 556, 563, 495 A. 2d 495, 499 (1985) (asbestosis
claimants, who suffered "substantial bodily harm" from asbestos,
may recover for fear of cancer)Y
11 See also
Jackson v.
Johns-Manville Sales Corp.,
781 F.2d
394, 413
414 (CA5 1986) (fear of cancer compensable, but
plaintiff established cancer more likely than not to occur);
Bonnette v.
Conoco, Inc., 2001-2767, p. 11 (La.
1/28/03), 837 So. 2d 1219, 1227 (mental anguish accompanied by
physical injury is compensable, but mere exposure to asbestos does
not
152
Arguing against the trend in the lower courts, Norfolk and its
supporting
amici assert that the asbestosis claimants'
alleged cancer fears are too remote from asbestosis to warrant
inclusion in their pain and suffering awards. In support of this
contention, the United States, one of Norfolk's
amici,
refers to the "separate disease rule," under which most courts have
held that the statute of limitations runs separately for each
asbestos-related disease. Brief for United States as
Amicus
Curiae 12. See,
e. g., Wilson v.
JohnsManville Sales
Corp., 684 F.2d
111, 120-121
(CADC 1982); Pustejovsky v.
Rapid-American Corp., 35 S. W. 3d 643, 649, n. 3 (Tex. 2000)
(listing cases).12 Because the asbestosis
qualify as a physical injury);
Wolffv. A-One Oil, Inc.,
216 App. Div. 2d 291, 292,627 N. Y. S. 2d 788, 789-790 (1995)
(fear-of-cancer recovery available if a plaintiff has
asbestos-induced disease);
Capital Holding Corp. v.
Bailey, 873 S. W. 2d 187, 194 (Ky. 1994) (recovery "if
first the plaintiff can cross the threshold of establishing
a harmful change has resulted from exposure to the potentially
cancer producing agent");
Mauro v.
Raymark Industries,
Inc., 116 N. J. 126, 137, 561 A. 2d 257, 263 (1989) (claim for
fear of future disease held "clearly cognizable where, as here,
plaintiff's exposure to asbestos has resulted in physical injury");
Lavelle v.
Owens-Corning Fiberglas Corp., 30 Ohio
Misc. 2d 11, 14, 507 N. E. 2d 476, 480-481 (Ct. Common Pleas,
Cuyahoga Cty. 1987) (asbestosis-afflicted plaintiff could recover
for fear of cancer either as pain and suffering damages associated
with asbestosis, or as compensable stand-alone claim of negligent
infliction of emotional distress).
Contrary precedent is slim in comparison to the heavy weight of
authority. See
Fulmore v.
CSX Transp., Inc., 252 Ga.
App. 884, 897, 557 S. E. 2d 64, 75 (2001) (denying fear-of-cancer
damages to asbestosis claimant based in part on misplaced reliance
on
Metro-North Commuter R. Co. v.
Buckley, 521 U. S. 424 (1997));
Cleveland v.
Johns-Manville Corp., 547 Pa. 402, 410,
690 A. 2d 1146, 1150 (1997) (plaintiff asserting noncancer asbestos
claims may not recover any cancer-related damages);
Watson
v.
Norfolk & Western R. Co., 30 Ohio App.
3d 201, 203-204,507 N. E. 2d 468, 471-472 (1987) (recovery
permissible under the FELA only on showing that plaintiff will
probably develop cancer from asbestos exposure).
12 The rule evolved as a response to the special problem posed
by latentdisease cases. Under the single-action rule, a plaintiff
who recovered for asbestosis would then be precluded from bringing
suit for later developed mesothelioma. Allowing separate complaints
for each disease, courts de-
153
claimants may bring a second action if cancer develops, Norfolk
and the Government argue, cancer-related damages are unwarranted in
their asbestosis suit. Tr. of Oral Arg. 17-18; Reply Brief 5. The
question, as the Government frames it, is not
whether the
asbestosis claimants can recover for fear of cancer, but
when. Brief for United States as
Amicus Curiae 15.
The principal dissent sounds a similar theme.
Post, at 174
("a person with asbestosis will not be without a remedy for pain
and suffering caused by cancer").
But the asbestosis claimants did not seek, and the trial court
did not allow, discrete damages for their
increased risk of
future cancer. App. 573 ("[Y]ou cannot award damages to plaintiffs
for cancer or for any increased risk of cancer."); see
supra, at 143. Instead, the claimants sought damages for
their
current injury, which, they allege, encompasses a
present fear that the toxic exposure causative of asbestosis
may later result in cancer. The Government's
"when, not
whether," argument has a large gap; it excludes recovery for
the fear experienced by an asbestosis sufferer who never gets
cancer. For such a person, the question is
whether, not
when, he may recover for his fear.
Even if the question is
whether, not simply
when,
an asbestosis sufferer may recover for cancer fear, Norfolk has
another string in its bow. To be compensable as pain and suffering,
Norfolk maintains, a mental or emotional harm must have been
"directly brought about by a physical injury." Brief for Petitioner
15 (emphasis deleted; internal quotation marks omitted) (quoting
Gottshall, 512 U. S., at 544). Because asbestosis itself, as
distinguished from asbestos expo-
termined, properly balanced a defendant's interest in repose and
a plaintiff's interest in recovering adequate compensation for
negligently inflicted injuries. See,
e. g.,
Wilson, 684 F. 2d, at 119. There is no inevitable conflict
between the "separate disease rule" and recovery of cancer
fear damages by asbestosis claimants. The rule simply allows
recovery for successive diseases and would necessarily exclude only
double recovery for the same element of damages.
154
sure, does not generate cancer, Norfolk insists and the
principal dissent agrees, "fear of cancer is too unrelated, as a
matter of law, to be an element of [an asbestosis sufferer's] pain
and suffering." Tr. of Oral Arg. 11; see
post, at 172.13
This argument elides over a key connection between Norfolk's
conduct and the damages the asbestosis claimants allege as an
element of their pain and suffering: Once found liable for "any
bodily harm," a negligent actor is answerable in damages for
emotional disturbance "resulting from the bodily harm
or from
the conduct which causes it." Restatement § 456(a) (emphasis
added).14
There is an undisputed relationship between exposure to asbestos
sufficient to cause asbestosis, and asbestos-related cancer.
Norfolk's own expert acknowledged that asbestosis puts a worker in
a heightened risk category for asbestosrelated lung cancer. App.
470 (affirming that "asbestosis has to be necessary before lung
cancer is a problem"). See W. Morgan & A. Seaton, Occupational
Lung Diseases 151 (3d ed. 1995) (hereinafter Morgan & Seaton)
("[H]eavy cumulative exposures to asbestos which lead to asbestosis
increase the risk of developing lung cancer .... [T]here is now
considerable evidence which indicates that the risk of lung cancer
only increases when asbestosis is present."). See also
id.,
at 341 ("There is no doubt ... that the presence of asbestosis, at
least in smokers, is associated with a significantly in-
13 But cf.
post, at 187 (BREYER, J.) (recovery
permissible when fear of cancer "detrimentally affects the
plaintiff's ability to carryon with everyday life and work").
14 See,
e. g., Baltimore &
Q R.
Co. v.
McBride, 36 F.2d 841, 842
(CA6 1930) ("Where
both the physical injury and the nervous shock are proximately
caused by the same act of negligence, there is no necessity that
the shock result exclusively from the physical injury."); see also
Goodrich, Emotional Disturbance as Legal Damage, 20 Mich. L. Rev.
497, 504 (1922) ("Recovery has been allowed where there has been
physical impact, but it has been frankly said that where there has
been impact the damages recoverable are not limited to those
resulting therefrom."); Magruder, Mental and Emotional Disturbance
in the Law of Torts, 49 Harv. L. Rev. 1033, 1048-1049 (1936).
155
creased rate of lung cancer."); A. Churg & F. Green,
Pathology of Occupational Lung Disease 343 (2d ed. 1998)
("[S]tudies provide strong support for the notion that asbestosis
is crucial to the development of asbestos-associated lung
cancers.").
Furthermore, the asbestosis claimants' expert testified without
contradiction to a risk notably "different in kind from the
background risks that all individuals face,"
post, at 187
(BREYER, J.): Some "ten percent of the people who have the disease,
asbestosis, have died of mesothelioma." App. 93; see Morgan &
Seaton 350 ("The evidence suggests that, once the lungs of the
susceptible subject have been primed by a sufficient dose of
asbestos, then the development of [mesothelioma] is
inevitable.").15 In light of this evidence, an asbestosis sufferer
would have good cause for increased apprehension about his
vulnerability to another illness from his exposure, a disease that
inflicts "agonizing, unremitting pain," relieved only by death,
post, at 168 (KENNEDY, J.): Asbestosis is "a chronic,
painful and concrete reminder that [a
15 The evidence at trial, Norfolk suggests, overstated the
asbestosis claimants' cancer risk. Brief for Petitioner 22-24, and
nn. 18-20. We do not sit to reweigh evidence based on information
not presented at trial. See
Tennant v.
Peoria &
Pekin Union R. Co., 321 U. S. 29, 35 (1944).
We note, however, that none of the studies to which Norfolk refers
addresses the risk of cancer for persons with asbestosis. Rather,
they home in on the relationship between
asbestos exposure
and cancer. See Morgan, Attitudes About Asbestos and Lung Cancer,
22 Am. J. Indus. Med. 437 (1992); Goodman, Morgan, Ray, Malloy,
& Zhao, Cancer in Asbestos-Exposed Occupational Cohorts: A
Meta-Analysis, 10 Cancer Causes & Control 453 (1999); Erren,
Jacobsen, & Piekarski, Synergy Between Asbestos and Smoking on
Lung Cancer Risks, 10 Epidemiology 405 (1999). Norfolk further
suggests that cancer risk from asbestos varies by fiber type.
Brieffor Petitioner 24, and n. 19 (citing Morgan & Seaton
346-347). Even if true, this suggestion is unavailing: Norfolk does
not allege that it exposed the asbestosis claimants to the less
toxic fiber type. Finally, Norfolk argues that the studies
quantifying cancer risk for workers with asbestosis cannot
accurately be extrapolated to evaluate the risk for these
particular asbestosis claimants. Reply Brief 8-9, and n. 4. Nothing
impeded Norfolk from presenting this argument to the jury.
156
plaintiff] has been
injuriously exposed to a substantial
amount of asbestos, a reminder which may both qualitatively and
quantitatively intensify his fear."
Eagle-Picher Industries,
Inc. v.
Cox, 481 So. 2d, at 529.
Norfolk understandably underscores a point central to the
Court's decision in
Metro-North. Reply Brief 10. The Court's
opinion in
Metro-North stressed that holding employers
liable to workers merely exposed to asbestos would risk "unlimited
and unpredictable liability." 521 U. S., at 435 (internal quotation
marks omitted) (quoting
Gottshall, 512 U. S., at 557). But
as earlier observed, see
supra, at 147,
Metro-North
sharply distinguished exposure-only plaintiffs from "plaintiffs who
suffer from a disease," and stated, unambiguously, that "[t]he
common law permits emotional distress recovery for [the latter]
category." 521 U. S., at 436; see
id., at 432. Commentary
similarly distinguishes asymptomatic asbestos plaintiffs from
plaintiffs who "developed asbestosis and thus suffered real
physical harm." Henderson & Twerski, Asbestos Litigation Gone
Mad: ExposureBased Recovery for Increased Risk, Mental Distress,
and Medical Monitoring, 53 S. C. L. Rev. 815, 830 (2002); see
id., at 830, 833-834 (classifying plaintiffs with pleural
thickening as asymptomatic and observing that, unlike asbestosis
sufferers, they face no "significantly increased risk of developing
cancer" and do not "suffe[r] current pain that serves as a constant
reminder that a more serious disease may come upon [them]").16
16 Unconstrained by "the majority rule or the rule of the
Restatement,"
post, at 177 (KENNEDY, J.), the principal
dissent would erase the line drawn in
Metro-North between
exposure-only asbestos claimants, and those who "suffe[r] from a
disease," 521 U. S., at 432. Repeatedly, that dissent recites as
properly controlling here case law governing "standalone tort
actionEs] for negligent infliction of emotional distress."
Post, at 171 (citing
Consolidated Rail Corporation v.
Gottshall, 512
U. S. 532 (1994)); see
post, at 169 (quoting from
Metro-North's justification for disallowing recovery to
exposure-only asbestos claimants); 173 (bracketing exposure-only
and asbestosis claimants); 177 (asbestosis claimants entitled
157
The categorical approach endorsed in
Metro-North serves
to reduce the universe of potential claimants to numbers neither
"unlimited" nor "unpredictable." Relevant here, and as Norfolk
recognizes, of those exposed to asbestos, only a fraction will
develop asbestosis. Brief for Petitioner 22, n. 16 (quoting
In
re Haw. Fed. Asbestos Cases, 734 F. Supp. 1563, 1570 (Haw.
1990) ("A reasonable person, exercising due diligence, should know
that of those exposed to asbestos, only a small percentage suffer
from asbestos-related physical impairment.")); cf. Morgan &
Seaton 319 (study showed that of persons exposed to asbestos after
1959, only 2 percent had asbestosis when first examined; for those
exposed from 19501959, that figure is 18 percent).
C
Norfolk presented the question "[w]hether a plaintiff who has
asbestosis but not cancer can recover damages for fear of cancer
under the [FE LA] without proof of physical manifestations of the
claimed emotional distress." Brief for Petitioner (i). Our answer
is yes, with an important reservation. We affirm only the
qualification of an asbestosis sufferer to seek compensation for
fear of cancer as an element of his asbestosis-related pain and
suffering damages. It is incumbent upon such a complainant,
however, to prove that his alleged fear is genuine and serious.
See,
e. g., Smith v.
A. C. &
S.,
Inc., 843 F.2d
854, 859
(CA5 1988) ("general
to recover for fear of cancer only if they "make out a claim for
negligent infliction of emotional distress; and they cannot do
so"); 180 (quoting from
Gottshall). But see
Metro-North, 521 U. S., at 437 ("emotional distress damages
sought by asbestosis-afflicted plaintiff" found to fit "within a
category where the law already permitted recovery for mental
distress").
The principal dissent gains no genuine aid from
Barron v.
MartinMarietta Corp., 868 F. Supp. 1203 (ND Cal. 1994), a
decision it cites as authority for equating exposure-only and
asbestosis claimants. See
post, at 175. The
Barron
plaintiffs "adduced no evidence of exposure to a toxic substance
which threatens cancer." 868 F. Supp., at 1205. When that is the
case, we agree, cancer-fear damages are unavailable.
158
concern for [one's] future health" held insufficient to support
recovery for an asbestosis sufferer's fear of cancer);
Coffman v.
Keene, 257 N. J. Super., at 293-294, 608
A. 2d, at 424-425 (sustaining a verdict including fear-of-cancer
damages where trial judge found plaintiff "ha[d] a genuine, real
believable fear of cancer" (internal quotation marks omitted)). See
also Minneman, 50 A. L. R. 4th, § 5, at 54-56, (discussing cases
affirming the view that "apprehension must be genuine").17 In this
case, proof directed to that matter was notably thin,18 and might
well have succumbed to a straightforward
sufficiency-of-the-evidence objection, had Norfolk so targeted its
attack.
Norfolk, however, sought a larger shield. In the trial court and
in its unsuccessful petition to the Supreme Court
17The asbestosis claimants here acknowledged that "a jury is
entitled to consider the absence of physical manifestations [of
alleged emotional disturbances] as evidence that a mental injury is
less severe and therefore less deserving of a significant award."
Brief for Respondents 17.
Considering the dissents' readiness to "develop a federal common
law" to contain jury verdicts under the FELA, see
post, at
170, 177, 181 (KENNEDY, J.);
post, at 187 (BREYER, J.), it
is curious that the principal dissent nevertheless questions the
"basis in our FELA jurisprudence" for the requirement that
claimants prove their alleged fear to be "genuine and serious," see
post, at 180 (internal quotation marks omitted). In contrast
to the principal dissent, JUSTICE BREYER appears ultimately to
advance only an elaboration of the requirement that the plaintiff
prove fear that is "genuine and serious." He would specify,
additionally, that the fear "significantly and detrimentally
affec[t] the plaintiff's ability to carryon with everyday life and
work."
Post, at 187. That elaboration, JUSTICE BREYER
maintains, is "consistent with the sense of the common law."
Ibid. The definition JUSTICE BREYER would give to the terms
"genuine and serious" in this context was not aired in the trial
court or in this Court. See
supra, at 143, 148, and this
page. We therefore resist ruling on it today.
18 As Norfolk noted, one of the claimants did not testify to
having any concern about cancer; another testified that he was more
afraid of shortness of breath from his asbestosis than of cancer.
Others testified to varying degrees of concern over developing the
disease; no claimant presented corroborative objective evidence of
his fear. Brief for Petitioner 9 (citing App.
116-117,255,277,298-299,332).
159
of Appeals of West Virginia, Norfolk urged that fear of cancer
could figure in the recovery only if the claimant proved both a
likelihood of developing cancer and physical manifestations of the
alleged fear. See App. 548 (Norfolk's charge request);
id.,
at 634 (amended petition for appeal). And although Norfolk
submitted proposed verdict forms,
id., at 549-560, those
forms did not call for jury specification of the amount of damages,
if any, awarded for fear of cancer. Thus, as earlier observed,
supra, at 144, it is impossible to tell from the verdicts
returned whether the jury ascribed any part of the damages awards
to the alleged cancer fear, and if so, how much.19
We did not grant review, in any event, to judge the sufficiency
of the evidence or the reasonableness of the damages awards. We
rule, specifically and only, on the question whether this case
should be aligned with those in which fear of future injury stems
from a current injury, or with those presenting a stand-alone claim
for negligent infliction of emotional distress. We hold that the
former categorization is the proper one under the FELA.
IV
We turn next to Norfolk's contention that the trial court erred
in instructing the jury "not to make a deduction [from damages
awards] for the contribution of non-railroad [asbestos] exposures"
to the asbestosis claimants' injuries. App. 570. The statutory
language, however, supports the trial court's understanding that
the FELA does not authorize ap-
19 In their prediction that adhering to the line drawn in
Gottshall and
Metro-North will, in this setting,
bankrupt defendants, see
post, at 168-169 (KENNEDY, J.);
post, at 186 (BREYER, J.), the dissents largely disregard,
inter alia, the verdict control devices available to the
trial court. These include, on a defendant's request, a charge that
each plaintiff must prove any alleged fear to be genuine and
serious, review of the evidence on damages for sufficiency, and
particularized verdict forms. Norfolk chose not to seek control
measures of this order; instead, Norfolk sought to place
cancer-fear damages entirely outside the jury's ken. See
supra, at 143,147.
160
portionment of damages between railroad and nonrailroad causes.
Section 1 of the Act, to which we earlier referred, see
supra, at 144-145, provides:
"Every common carrier by railroad while engaging in [interstate
commerce], shall be liable in damages to any person suffering
injury while he is employed by such carrier in such commerce ...
for such injury ... resulting in whole or in part from the
negligence of such ... carrier .... " 45 U. S. C. § 51.
The claimants here suffer from asbestosis (an "injury"), which
is linked to their employment with Norfolk and "result[ed] in whole
or in part from ... negligence" by Norfolk. Norfolk is therefore
"liable in damages ...
for such injury." Ibid. (emphasis
added). Nothing in the statutory text instructs that the amount of
damages payable by a liable employer bears reduction when the
negligence of a third party also contributed in part to the
injury-in-suit.
Resisting this reading, Norfolk trains on the statutory language
conveying that a railroad is liable only for injuries an employee
sustains "while he is employed by such carrier."
Ibid. That
language, Norfolk maintains, "makes clear that railroads are not
liable for employee injuries that result from outside causes."
Brief for Petitioner 32. Norfolk's argument uncouples the statutory
language from its context, and thereby obscures its meaning.
The FELA applies to railroads only "while [they are] engaging
in" interstate commerce. 45 U. S. C. § 51. The clause on which
Norfolk relies clarifies that the statute's reach is
correspondingly limited to injuries sustained
by railroad
employees while the employees are themselves engaged
"in
such commerce." Ibid. (emphasis added); cf.
The Employers'
Liability Cases, 207 U. S. 463, 504 (1908)
(predecessor statute declared unconstitutional because it regulated
employee injuries not sufficiently related to interstate commerce).
Placed in context, the clause does not speak to
161
cases in which an injury has multiple causes, some related to
railroad employment and others unrelated to that employment. Such
cases, we think, are controlled by the language just noted, which
states that the railroad is "liable in damages" so long as the
injury was caused "in whole or in part" by its "negligence." 45 U.
S. C. § 51.
The statutory context bolsters our reading, for interpreting § 1
to require apportionment would put that provision in tension with
the rest of the statute. As recounted earlier, see
supra, at
145, several of the FELA's provisions expand a railroad's liability
by abolishing common-law defenses that limited employees' ability
to recover against their employers. Among the innovations, the Act
expressly directs apportionment of responsibility between employer
and employee based on comparative fault. See § 53 (set out in
relevant part
supra, at 144, n. 6). The statute expressly
prescribes no other apportionment.
Essentially, then, Norfolk asks us to narrow employer liability
without a textual warrant. Reining in employer liability as Norfolk
proposes, however, is both unprovided for by the language of the FE
LA and inconsistent with the Act's overall recovery facilitating
thrust. Accordingly, we find Norfolk's plea an untenable reading of
the congressional silence. Cf.
Edmonds v.
Compagnie
Generale Transatlantique, 443 U. S. 256, 268, n. 23
(1979) ("It would be particularly curious for Congress to refer
expressly to the established principle of comparative negligence,
yet say not a word about adopting a new rule limiting the liability
of the [defendant] on the basis of [another party's]
negligence.").
Norfolk's view also runs counter to a century of FELA
jurisprudence. No FELA decision made by this Court so much as hints
that the statute mandates apportionment of damages among
potentially liable tortfeasors. Indeed,
Rogers v.
Missouri Pacific R. Co., 352 U. S. 500 (1957),
suggests the opposite. In
Rogers, we described as
"irrelevant" the question "whether the immediate reason" for an
employee's
162
injury was the proven negligence of the defendant railroad or
"some cause not identified from the evidence."
Id., at 503;
see
id., at 508 ("[T]he inquiry in these cases today rarely
presents more than the single question whether negligence of the
employer played any part, however small, in the injury or death
which is the subject of the suit."). But if the FELA required
apportionment among potentially liable tortfeasors, the existence
of contributing causes would be highly relevant.
Also significant is the paucity of lower court authority for the
proposition that the FELA contemplates apportionment. The federal
and state reporters contain numerous FELA decisions stating that
railroad employers may be held jointly and severally liable for
injuries caused in part by the negligence of third parties,20 and
even more recognizing that FELA defendants may bring
indemnification and contribution actions against third parties
under otherwise applicable state or federal law.21 Those
third-party suits would have
20 See,
e. g., Jenkins v.
Southern Pac. Co., 17 F.
Supp. 820, 824-825 (SD Cal. 1937), rev'd on other grounds, 96 F.2d
405
(CA9 1938);
Gilbert v.
CSX Transp., Inc.,
197 Ga. App. 29, 32, 397 S. E. 2d 447, 450 (1990);
Lewis v.
National R. Passenger Corp., 176 Misc. 2d 947, 948-951, 675
N. Y. S. 2d 504, 505-507 (Civil Ct. 1998);
Gaulden v.
Burlington No., Inc., 232 Kan. 205, 210-211, 654 P. 2d 383,
389 (1982);
Southern R. Co. v.
Blanton, 63 Ga. App.
93, 100, 10 S. E. 2d 430, 436 (1940);
Demopolis Tel. Co. v.
Hood, 212 Ala. 216, 218, 102 So. 35, 37 (1924);
Lindsay v.
Acme Cement Plaster Co., 220 Mich.
367,376,190 N. W. 275, 278 (1922);
Louisville &
Nashville R. Co.
21 See, e. g., Mills v. River Term. R. Co.,
276 F.3d
222, 224 (CA6 2002); Gaines v. Illinois Central R. Co.,
23 F.3d
1170, 1171 (CA7 1994); Ellison v. Shell Oil Co.,
882 F.2d
349, 352-354 (CA9 1989); Alabama Great Southern R. Co. v.
Chicago & Northwestern R. Co.,
493 F.2d
979, 983 (CA8 1974); Southern R. Co. v. Foote Mineral Co.,
384 F.2d
224, 227-228 (CA6 1967); Kennedy v. Pennsylvania R. Co.,
282 F.2d
705, 708-709 (CA3 1960); Ft. Worth & Denver R. Co. v.
Threadgill,
228 F.2d
307, 311-312 (CA5 1955); Patterson v. Pennsylvania R. Co.,
197 F.2d
252, 253 (CA2 1952); Stephens v. Southern Pacific Transp. Co.,
991 F. Supp. 618, 620 (SD Tex. 1998); Tucker v. Reading Co., 335 F.
Supp. 1269, 1271 (ED Pa. 1971); Reynolds v. Southern R. Co., 320 F.
Supp. 1141, 1142-1143 (ND Ga. 1969); Spielman v. New York, New
Haven & Hartford R. Co., 147 F. Supp. 451, 453-454
163
been unnecessary had the FELA itself authorized apportionment.
Norfolk identifies only one FELA decision supporting its position:
Dale v.
Baltimore &
Ohio R. Co., 520 Pa.
96, 105-107, 552 A. 2d 1037, 1041-1042 (1989). But
Dale
cited no previous decisions on point and has not been followed by
any other court. It is therefore a reed too slim to overcome the
statutory language and the otherwise consistent historical practice
in the lower courts.
The conclusion that the FELA does not mandate apportionment is
also in harmony with this Court's repeated statements that joint
and several liability is the traditional rule. In an 1876 admiralty
case, for example, we wrote:
"Nothing is more clear than the right of a plaintiff, having
suffered ... a loss [of cargo], to sue in a common-law action all
the wrong-doers, or anyone of them, at his election; and it is
equally clear, that, if he did not contribute to the disaster, he
is entitled to judgment in either case for the full amount of
his loss." The ''Atlas,'' 93 U. S. 302, 315 (1876)
(emphasis added).
See 42 Congo Rec. 4536 (1908) (remarks of Sen. Dolliver) (the
FELA was intended to "brin[g] our jurisprudence up to the liberal
interpretations that ... now prevail in the admiralty courts of the
United States"). See also
Miller v.
Union Pacific R.
Co.,
290 U. S.
227, 236 (1933) (describing joint and several liability as
"settled by innumerable authorities" and
(EDNY 1956);
Engvall v.
Soo Line R. Co., 632 N. W.
2d 560, 568 (Minn.
2001); Freeman v.
Norfolk Southern R.
Co., 97-2013 (La. App. 5/13/98), 714 So. 2d 832, 835;
In re
Bean, 171 Ill. App. 3d 620, 623, 525 N. E. 2d 1231, 1234
(1988);
Narcise v.
Illinois Central Gulf R. Co., 427
So. 2d 1192, 1195 (La. 1983);
Walter v.
Dow Chemical
Co., 37 Mich. App. 728, 729-732, 195 N. W. 2d 323, 324-325
(1972);
Gulf, Mobile &
Ohio R. Co. v.
Arthur
Dixon Transfer Co., 343 Ill. App. 148, 153-155, 98 N. E. 2d
783, 785-786 (1951);
Seaboard Air Line R. Co. v.
American
Dist. Elec. Protective Co., 106 Fla. 330, 333, 143 So. 316, 317
(1932); Lewter, Right of Railroad, Charged with Liability for
Injury to or Death of Employee Under Federal Employers' Liability
Act, to Claim Indemnity or Contribution from Other Tortfeasor, 19
A. L. R. 3d 928 (1968 and Supp. 2002).
164
citing federal decisions from 1883, 1893, 1894, 1895, 1902,
1904, 1906, 1910, and 1913);
Edmonds, 443 U. S., at 260
(joint and several liability remains the rule in admiralty).
Norfolk nonetheless maintains that "[a]pportionment was the
common-law rule at the time of FELA's enactment" in 1908. Brief for
Petitioner 32. This Court's repeated statements concerning joint
and several liability refute that contention. Many of Norfolk's
historical authorities, moreover, address the
procedural
question whether two defendants may be sued in one action, rather
than the
substantive one whether each negligent defendant is
liable in full for a plaintiff's injury. These "separate problems,"
Dean Prosser cautioned, "require separate consideration, and have
very little in common." Joint Torts and Several Liability, 25
Calif. L. Rev. 413 (1937). While "[t]he common law rules as to
[procedural] joinder were extremely strict,"
id., at 414,
"the common law [also] developed ... a distinct and altogether
unrelated principle: a defendant might be liable for the entire
loss sustained by the plaintiff, even though his negligence
concurred or combined with that of another to produce the result"
and even where "no [procedural] joinder would have been possible,"
id., at 418.
Looking beyond historical practice, Norfolk contends that the
modern trend is to apportion damages between multiple tortfeasors.
Brief for Petitioner 40-43. The state of affairs when the FELA was
enacted, however, is the more important inquiry. See,
e. g.,
Monessen Southwestern R. Co. v.
Morgan, 486 U. S. 330, 336-339
(1988) (prejudgment interest is not available under the FELA
because it was unavailable at common law when the statute was
enacted). At any rate, many States retain full joint and several
liability, see Restatement (Third) of Torts, Apportionment of
Liability § 17, Reporters' Note, table, pp. 151-152 (1999), even
more retain it in certain circumstances,
id., tables, at
153-159, and most of the recent changes away from the traditional
rule have come through legislative enactments rather than judicial
de-
165
velopment of common-law principles, see
id., § B18,
Reporters' Note. Congress, however, has not amended the FELA. Cf.
Edmonds, 443 U. S., at 273 ("Once Congress has relied upon
conditions that the courts have created, we are not as free as we
would otherwise be to change them.").22
Finally, reading the FELA to require apportionment would
handicap plaintiffs and could vastly complicate adjudications, all
the more so if, as Norfolk sometimes suggests, see Brief for
Petitioner 50, Reply Brief 20, manufacturers and suppliers, as well
as other employers, should come within the apportionment pool. See
Sinkler, 356 U. S., at 329 ("The cost of human injury, an
inescapable expense of railroading, must be borne by someone, and
the FELA seeks to adjust that expense equitably between the worker
and the carrier."). Once an employer has been adjudged negligent
with respect to a given injury, it accords with the FELA's
overarching purpose to require the employer to bear the burden of
identifying other responsible parties and demonstrating that some
of the costs of the injury should be spread to them.23
Under the FELA, an employee who suffers an "injury" caused "in
whole or in part" by a railroad's negligence may
22 Norfolk also suggests an analogy between the FELA and the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (CERCLA), 42 U. S. C. § 9601
et seq., under
which many courts have held that apportionment is available in some
circumstances. Brief for Petitioner 44-45. But CERCLA's structure,
purpose, and more recent vintage may differentiate that measure
from the FELA in ways relevant to the question presented. See Brief
for United States as
Amicus Curiae 6, n. 1. We need not and
do not express any view on apportionment in the CERCLA context.
23 Norfolk submits that requiring employers to sue for
contribution will be "wasteful," Brief for Petitioner 47, but FELA
defendants may be able to implead third parties and thus secure
resolution of their contribution actions in the same forum as the
underlying FELA actions. See,
e. g., Ellison
v.
Shell Oil Co., 882 F. 2d, at 350 (railroad sued by
employee under the FELA filed a third-party complaint against
another party);
Engvall v.
Soo Line R. Co., 632 N. W.
2d, at 563 (same).
166
recover his or her full damages from the railroad, regardless of
whether the injury was also caused "in part" by the actions of a
third party. Because the asbestosis claimants suffer such an
"injury," we conclude that the instruction challenged here was not
erroneous.
***
The "elephantine mass of asbestos cases" lodged in state and
federal courts, we again recognize, "defies customary judicial
administration and calls for national legislation."
Ortiz v.
Fibreboard Corp., 527 U. S. 815, 821
(1999); see Report of the Judicial Conference Ad Hoc Committee on
Asbestos Litigation 3, 27-35 (Mar. 1991) (concluding that effective
reform requires federal legislation creating a national asbestos
dispute-resolution scheme);
id., at 42 (dissenting statement
of Hogan, J.) (agreeing that "a national solution is the only
answer" and suggesting "passage by Congress of an administrative
claims procedure similar to the Black Lung legislation"). Courts,
however, must resist pleas of the kind Norfolk has made,
essentially to reconfigure established liability rules because they
do not serve to abate today's asbestos litigation crisis. Cf.
Metro-North, 521 U. S., at 438 ("[C]ourts ... must consider
the general impact ... of the general liability rules they ...
create.").
For the reasons stated, the judgment of the Circuit Court of
Kanawha County is
Affirmed.
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE, JusTICE O'CONNOR,
and JUSTICE BREYER join, concurring in part and dissenting in
part.
The Court is correct, in my view, in rejecting the claim that
damages awarded under the Federal Employers' Liability Act (FELA or
Act) must be apportioned according to causal contribution among
even absent joint tortfeasors. Parts I, II, and IV of its opinion
have my full assent.
167
It is otherwise as to Part III. The Court allows compensation
for fear of cancer to those who manifest symptoms of some other
disease, not itself causative of cancer, though stemming from
asbestos exposure. The Court's precedents interpreting FELA neither
compel nor justify this result. The Court's ruling is not based
upon a sound application of the common-law principles that should
inform our decisions implementing FELA. On the contrary, those
principles call for a different rule, one which does not yield such
aberrant results in asbestos exposure cases. These reasons require
my respectful dissent.
I
It is common ground that the purpose of FELA is to provide
compensation for employees protected under the Act.
Ante, at
144-145. The Court's decision is a serious threat to that
objective. Although a ruling that allows compensation for fear of a
disease might appear on the surface to be solicitous of employees
and thus consistent with the goals of FELA, the realities of
asbestos litigation should instruct the Court otherwise.
Consider the consequences of allowing compensation for fear of
cancer in the cases now before the Court. The respondents are
between 60 and 77 years old. All except one have a long history of
tobacco use, and three have smoked for more than 50 years. They
suffer from shortness of breath, but only one testified that it
affects his daily activities. As for emotional injury, one of the
respondents complained that his shortness of breath caused him to
become depressed; the others stated, in response to questions from
their attorneys, that they have some "concern" about their health
and about cancer. For this, the jury awarded each respondent
between $770,640 and $1,230,806 in damages, reduced by the trial
court to between $523,605 and $1,204,093 to account for the
comparative negligence of the respondents' cigarette use.
168
Contrast this recovery with the prospects of an employee who
does not yet have asbestosis but who in fact will develop
asbestos-related cancer. Cancers caused by asbestos have long
periods of latency. Their symptoms do not become manifest for
decades after exposure. See Selikoff et al., Latency of Asbestos
Disease Among Insulation Workers in the United States and Canada,
46 Cancer 2736,2740 (1980) (lung cancer becomes manifest 15-24
years after exposure); A. Churg & F. Green, Pathology of
Occupational Lung Disease 350 (2d ed. 1998) ("The latency period
for asbestosinduced mesothelioma is long, with a mean value of 30
to 40 years"); see generally Mustacchi, Lung Cancer Latency and
Asbestos Liability, 17 J. Legal Med. 277 (June 1996) (discussing
the pathogenesis of asbestos-related carcinomata). These cancers
inflict excruciating pain and distress-pain more severe than that
associated with asbestosis, distress more harrowing than the fear
of developing a future illness.
One who has mesothelioma, in particular, faces agonizing,
unremitting pain in the lungs, which spreads throughout the
thoracic cavity as tumors expand and metastasize. See W. Morgan
& A. Seaton, Occupational Lung Diseases 353 (3d ed. 1995). The
symptoms do not subside. Their severity increases, with death the
only prospect for relief. And death is almost certain within a
short time from the onset of mesothelioma. See
ibid. ("Death
usually occurs within 18 months to 2 years .... A minority of
patients, somewhere around 15%, survive 3 to 4 years"). Yet the
majority's decision endangers this employee's chances of recovering
any damages for the simple reason that, by the time the worker is
entitled to sue for the cancer, the funds available for
compensation in all likelihood will have disappeared, depleted by
verdicts awarding damages for unrealized fear, verdicts the
majority is so willing to embrace.
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
169
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.
Asbestos litigation has driven 57 companies, which employed
hundreds of thousands of people, into bankruptcy, including 26
companies that have become insolvent since January 1, 2000. See
RAND Institute for Civil Justice, S. Carroll et al., Asbestos
Litigation Costs and Compensation: An Interim Report 71 (2002),
Petitioner's Supplemental Lodging, p. SL82. With each bankruptcy
the remaining defendants come under greater financial strain, see
Edley & Weiler, Asbestos: A Multi-Billion-Dollar Crisis, 30
Harv. J. Legis. 383, 392 (1993); M. Plevin & P. Kalish, What's
Behind the Recent Wave of Asbestos Bankruptcies? 16 Mealey's
Litigation Report: Asbestos 35 (Apr. 20, 2001), and the funds
available for compensation become closer to exhaustion, see Schuck,
The Worst Should Go First: Deferral Registries in Asbestos
Litigation, 15 Harv. J. L. & Pub. Pol'y 541, 547 (1992).
In this particular universe of asbestos litigation, with its
fast diminishing resources, the Court's wooden determina-
170
tion to allow recovery for fear of future illness is
antithetical to FELA's goals of ensuring compensation for injuries.
Cf.
Consolidated Rail Corporation v.
Gottshall,
512 U. S. 532,
555 (1994) (describing FELA's "central focus on physical perils");
Metro-North, supra, at 430 (noting that
Gottshall
relied upon cases involving "a threatened physical contact that
caused, or might have caused, immediate traumatic harm"). As a
consequence of the majority's decision, it is more likely that
those with the worst injuries from exposure to asbestos will find
they are without remedy because those with lesser, and even
problematic, injuries will have exhausted the resources for
payment. Today's decision is not employee protecting; it is
employee threatening.
II
When the Court asks whether the rule it adopts has been settled
by the common law, the answer, in my view, must be no. The issue
before us is new and unsettled, as is evident from the diverse
approaches of state and federal courts to this problem. In its
comprehensive discussion, the majority cites some authorities that,
it must be acknowledged, could be interpreted to support the
Court's position. The result it reaches, however, is far from
inevitable, and the rule the majority derives does not comport with
our responsibility to develop a federal common law that administers
FELA in an effective, principled way.
A
I disagree with the Court's conclusion that damages for fear of
cancer may be recovered as part of the pain and suffering caused by
asbestosis.
Ante, at 148. The majority observes that a
person who suffers from "a disease" may recover for all "related"
emotional distress.
Ante, at 147 (courts
"'do permit
a plaintiff
who suffers from a disease to recover for
related negligently caused emotional distress'" (quoting
Metro-North, supra, at 432)). While that may be true as a
general matter, it begs the question: What relation-
171
ship between a disease and associated emotional distress should
entitle a person to compensation for the distress as pain and
suffering?
The Court's precedent applying FELA provides the answer. To
qualify as compensable pain and suffering, a person's emotional
distress must be the direct consequence of an injury or condition.
See
Gottshall, 512 U. S., at 544 ("[T]hese terms
traditionally have been used to describe sensations stemming
directly from a physical injury or condition" (internal quotation
marks omitted)). Damages for emotional harms that are less direct
may be recovered only pursuant to a stand-alone tort action for
negligent infliction of emotional distress.
Ibid. (defining
negligently inflicted emotional distress as "mental or emotional
harm (such as fright or anxiety) that is caused by the negligence
of another and that is not directly brought about by a physical
injury").
The common law accords with this rule. The weight of authority
defines pain and suffering as emotional distress that is the direct
consequence of an injury. See Minneman, Future Disease or
Condition, or Anxiety Relating Thereto, as Element of Recovery, 50
A. L. R. 4th 13, 25 (1986) ("[T]he fear that an existing injury
will lead to the future onset of an as yet unrealized disease or
condition is an element of recovery only where such distress ... is
the natural consequence of, or reasonably expected to flow from,
the injury"); see also Restatement (Second) of Torts § 456(a)
(1963-1964) (hereinafter Restatement) (tortfeasor liable for
"fright, shock, or other emotional disturbance resulting from the
bodily harm or from the conduct which causes it").
This category of emotional distress includes certain types of
fears. The fright that accompanies a dog bite or a radiation burn,
for example, may be said to result from an injury because it arises
without any intervening cause, such as a medical examination. See
The Lord Derby, 17 F.2d 5, 267 (ED La. 1883) ("To many
people the shock to the system resulting from the most
insignificant bite of a dog drawing
172
blood is such that no money compensation is adequate"). The
passage in the Restatement deeming compensable "emotional
disturbance resulting from the bodily harm or from the conduct
which causes it," § 456(a), refers, as the official commentary
makes clear, to this sort of instantaneous emotional trauma arising
from the tortious act. See
id., Comment
e ("Thus one
who is struck by a negligently driven automobile and suffers a
broken leg may recover not only for his pain, grief, or worry
resulting from the broken leg, but also for his fright at seeing
the car about to hit him").
Other, less immediate fears also might qualify as pain and
suffering, but only if they are the direct result of an injury. See
id., § 456, Comment
d (clarifying that recovery is
"not limited to immediate emotional disturbance accompanying the
bodily harm, or following at once from it, but includes also
subsequent emotional disturbance brought about by the bodily harm
itself").
Applying these standards to the instant case, I do not think the
brooding, contemplative fear the respondents allege can be called a
direct result of their asbestosis. Unlike shortness of breath or
other discomfort asbestosis may cause, their fear does not arise
from the presence of disease in their lungs. Instead, the
respondents' fear is the product of learning from a doctor about
their asbestosis, receiving information (perhaps at a much later
time) about the conditions that correlate with this disease, and
then contemplating how these possible conditions might affect their
lives.
The majority nevertheless would permit recovery because "[t]here
is an undisputed relationship between exposure to asbestos
sufficient to cause asbestosis, and asbestos-related cancer."
Ante, at 154. To state that some relationship exists without
examining whether the relationship is enough to support recovery,
however, ignores the central issue in this case. There is a
fundamental premise in this case-conceded, as I understand it, by
all parties-and it is this: There is no demonstrated causal link
between asbestosis and can-
173
cer. See Churg & Green, Pathology of Occupational Lung
Disease, at 313. The incidence of asbestosis correlates with the
less-frequent incidence of cancer among exposed workers,
ibid., but this does not suffice. Correlation is not
causation. Absent causation, it is difficult to conceive why
asbestosis is any more than marginally more suitable a predicate
for recovering for fear of cancer than the fact of mere exposure.
This correlation the Court relies upon does not establish a direct
link between asbestosis and asbestos-related cancer, and it does
not suffice under common-law precedents as a predicate condition
for recovery of damages based upon fear.
It must be conceded that courts in some common-law jurisdictions
have ruled that fear of cancer is compensable as pain and suffering
before the cancer is diagnosed, but the majority's extensive
citations are not that persuasive. The Court collects cases from 12
jurisdictions that comport with its result, but only 5 of these
were decided by the high court of a State.
Ante, at 150-151,
and n. 11. Moreover, three would allow recovery for fear of cancer
predicated upon mere exposure to asbestos, see
Denton v.
Southern R. Co., 854 S. W. 2d 885, 889 (Tenn. App. 1993)
(citing
Hagerty v.
L &
L Marine Servs.,
Inc., 788 F.2d
315, 318
(CA5 1986));
Lavelle v.
Owens-Corning
Fiberglas Corp., 30 Ohio Misc. 2d 11, 14, 507 N. E. 2d 476, 480
(Ct. Common Pleas, Cuyahoga Cty. 1987);
Devlin v.
Johns-Manville Corp., 202 N. J. Super. 556, 563, 495 A. 2d
495, 499 (1985), a result contrary to our own holding in
Metro-North. Five more appear to allow recovery with the
onset of pleurisy, see
Capital Holding Corp. v.
Bailey,
873 S. W. 2d 187, 194 (Ky. 1994);
Beeman v.
Manville
Corp. Asbestos Disease Compensation Fund, 496 N. W. 2d 247, 250
(Iowa 1993);
Celotex Corp. v.
Wilson, 607 A. 2d 1223,
12291230 (Del. 1992);
Mauro v.
Raymark Industries, Inc.,
116 N. J. 126, 129-130, 561 A. 2d 257, 258-259 (1989);
Wolff v.
A-One Oil, Inc., 216 App. Div. 2d 291, 292,
627 N. Y. S. 2d 788, 789-790 (1995), again a result even to day's
Court would
174
reject,
ante, at 153-156, and n. 14. In the end, cases
from only five of those jurisdictions support the majority's
analysis, none of them decided by a state high court.
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 151-152, n. 11. 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.
JohnsManville 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.
The Supreme Court of Pennsylvania reached this conclusion, and
its reasoning deserves attention when the Court suggests the common
law is so well settled:
"[D]amages for fear of cancer are speculative. The awarding of
such damages would lead to inequitable results since those who
never contract cancer would obtain damages even though the disease
never came into fruition.
175
"In any case, Appellants are not left without a remedy for their
mental anguish. [Pennsylvania case law] permits an action to be
commenced if cancer develops. It is in this action that Appellants
can assert their emotional distress or mental anguish claims. To
allow the asbestos plaintiff in a non-cancer claim to recover for
any part of the damages relating to cancer, including the fear of
contracting cancer, erodes the integrity of and purpose behind the
[separate] disease rule." Simmons v. Pacor, Inc., 543
Pa. 664, 677-678, 674 A. 2d 232, 238239 (1996).
This analysis is persuasive because it accounts, in a way that
the majority's decision does not, for changes already underway in
common-law rules for compensating victims of a disease with a long
latency period. This approach surely is more likely to result in an
equitable allotment of compensation than the decision of the Court;
and this is the rule the Court should adopt to govern the
availability of damages for fear of cancer under FELA.
Pennsylvania is not alone in rejecting the majority's view.
In a careful opinion applying California law, the United States
District Court for the Northern District of California held that
parasitic damages for fear of cancer may be recovered only where
there is a verifiable causal nexus between the injury suffered and
the cancer feared.
Barron v.
Martin-Marietta Corp.,
868 F. Supp. 1203, 1211-1212 (1994). The court recognized that
California courts had not yet addressed the type of physical injury
that would permit compensation for fear of cancer, see
id.,
at 1210, n. 9, but it determined that the requirement of a causal
nexus was a clear implication of recent California Supreme Court
precedent, see
id., at 1212 (citing
Potter v.
Firestone Tire &
Rubber Co., 6 Cal. 4th 965, 863
P. 2d 795 (1993)). The justification for this prerequisite is
significant in this case as well:
176
"If no nexus were required between cancer and an alleged injury,
an injury akin to a spinal puncture, serious but unrelated to
cancer, would admit recovery of parasitic damages for fear of
cancer. Indeed, any serious physical injury, however unrelated to
cancer, would permit fear-of-cancer damages." 868 F. Supp., at
1211.
The proofs offered by the claimants in
Barron were
insufficient on summary judgment to meet that burden under
California law, and the respondents in to day's case also would be
incapable of recovering under that standard.
Other common-law authorities the majority cites do not compel a
contrary result. It is of no help to the respondents that "mental
anguish related to a physical injury is recoverable even if 'the
underlying future prospect is not itself compensable inasmuch as it
is not sufficiently likely to occur.'"
Ante, at 149 (quoting
Minneman, 50 A. L. R. 4th, at 25). This principle cannot sustain an
award when, as here, there is a tangential, and no causal,
relationship between the present injury suffered and the future
disease feared.
Ibid. ("Thus, damages for mental anguish
concerning the chance that a future disease or condition will
result from an original injury are generally not recoverable where
the connection between the anxiety and the existing injury is too
remote or tenuous").
The respondents' characterization, furthermore, finds no support
in the part of the Restatement quoted by the majority.
Ante,
at 154 ("[A] negligent actor is answerable in damages for emotional
disturbance 'resulting from the bodily harm
or from the conduct
which causes it'" (quoting Restatement § 456(a))). As described
supra, at 171-172, the commentary suggests that this
statement would allow recovery for direct or immediate emotional
trauma resulting from a tortious act, see Restatement § 456(a),
Comment
e. The respondents do not claim to have experienced
any shock or trauma arising from their exposure to asbestos or from
the onset of their asbestosis. With almost no variation, they
177
complained only of concern, for which the Restatement provides
no guidance as to whether damages should be awarded.
More important, while the disagreement among state courts about
how to address this problem is telling, it is important to keep in
mind the nature of the Court's responsibility under FELA. The
implementation of the Act is a matter of federal common law, see
Urie v.
Thompson, 337 U. S. 163, 173
(1949), and it is for the Court to develop and administer a fair
and workable rule of decision, see
Brady v.
Southern
R. Co., 320 U.
S. 476, 479 (1943) ("[T]he question must be determined by this
Court finally"); see also
Gottshall, 512 U. S., at 558
(SOUTER, J., concurring) ("That duty is to develop a federal common
law of negligence under FELA, informed by reference to the evolving
common law"). Statecourt precedent is not dispositive. See
Dice v.
Akron, C. &
Y. R. Co., 342 U. S. 359, 361 (1952)
("State laws are not controlling in determining what the incidents
of this federal right shall be"). Instead, the Court is bound only
by the terms of FELA and its own precedent giving meaning to the
Act. Within those constraints, the Court must endeavor to arrive at
the correct rule-a rule that is just and practicalrather than the
majority rule or the rule of the Restatement.
These considerations establish the proper rule for the case.
Although the anxiety generated by an increased awareness about a
disease may be real and painful, it lacks the direct link to a
physical injury that suffices for recovery. Cf.
Metro-North,
521 U. S., at 432 (denying fear-of-cancer recovery where condition
"causes emotional distress only because the worker learns that he
may become ill after a substantial period of time"). The
respondents' entitlement to compensation for their fear of cancer
turns upon their ability to make out a claim for negligent
infliction of emotional distress; and they cannot do so.
178
B
If viewed as alleging negligent infliction of emotional
distress, the respondents' claims fail for the same reasons the
Court disallowed recovery in
Metro-North. There, the
employee was exposed to massive amounts of asbestos for one hour of
each working day for three years. See
id., at 427. He
presented testimony about his fear of developing cancer.
Ibid. Two expert witnesses testified that the employee's
fear was at least reasonable because his exposure to asbestos
increased the likelihood of contracting cancer, after discounting
for a is-year tobacco habit, by between one and five percent.
Ibid.
Despite these indications of genuine emotional distress, the
Court held the exposure did not satisfy the "zone of danger" test
and denied any recovery for fear of cancer.
Id., at 430. The
Court explained that the claim implicated the traditional concerns
underlying common-law restrictions upon recovery for emotional
distress. See
id., at 433. The distress the employee
alleged, including his emotional reaction to an incremental,
increased risk of dying from cancer, was beyond the ability of a
jury to evaluate with precision, heightening the danger that
damages would be based upon speculation or caprice, see
id.,
at 435.
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 non-
179
smokers 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 1-15, 1-16 (2002),
available at http://seer. cancer.gov/csr/1973_1999/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 CigaretteRelated
Disease Risks & Their Implication for Prevention and Control,
Smoking & Tobacco Control Monograph, No.8, 1997, p. xi, Table
1, a risk that all but one of the respondents has incurred that is
wholly separate from their exposure to asbestos.
It is beyond the ability of juries to derive from statistics
like these a fair estimate of the danger caused by negligent
exposure to asbestos. See
Metro-North, supra, at 435. For
this reason, the trial judge was correct to instruct the jury that
they could not award the respondents any damages for cancer or for
an increased risk of cancer. In disallowing recovery for risk but
allowing recovery for fear based on that risk, however, the trial
judge attempted to avoid speculation at the outset but succumbed to
added speculation in the end. If instructing a jury to calculate an
increased risk of cancer invites speculation, then asking the jury
to infer from its estimate a rough sense of the fear based on the
risk invites speculation compounded.
The damages the jury awarded in this case indicate the
legitimacy of these concerns. As described above,
supra, at
167, the respondents received damages of between $500,000 and $1.2
million despite having complained only that they suffered shortness
of breath and experienced varying de-
180
grees of concern about cancer. This evidence of injury and the
compensation awarded is recited here not "to reweigh evidence based
on information not presented at trial,"
ante, at 155, n. 15,
or "to judge the sufficiency of the evidence or the reasonableness
of the damages awards,"
ante, at 159. Rather, it is
instructive as to what results in a single case when a jury is
charged with translating into dollar amounts confusing and
contested evidence about the nature of a complicated harm. It
demonstrates the speculative, unreasoned kind of award generated
when a jury is presented vivid testimony about the agony of cancer,
provided expert evidence that a person's chances of developing that
cancer have increased, but admonished that only the fear of that
cancerand not the cancer itself, or a heightened risk of developing
cancer-is compensable.
The majority would allow such awards, but with the "important
reservation" that a plaintiff must "prove that his alleged fear is
genuine and serious."
Ante, at 157. There is no basis in our
FELA jurisprudence for establishing this burden of proof, and it
would be a difficult standard for judges to enforce. The Court has
rejected the notion that review for "genuineness" could ameliorate
the threat of unlimited and unpredictable liability. See
Gottshall, 512 U. S., at 552. In explaining its skepticism,
the Court observed:
"Such a fact-specific test ... would be bound to lead to
haphazard results. Judges would be forced to make highly subjective
determinations concerning the authenticity of claims for emotional
injury, which are far less susceptible to objective medical proof
than are their physical counterparts. To the extent the genuineness
test could limit potential liability, it could do so only
inconsistently .... In the context of claims for intangible harms
brought under a negligence statute, we find such an arbitrary
result unacceptable." Ibid.
181
The Court's response to the possibility of speculative awards is
instead to adopt common-law rules restricting the classes of
plaintiffs eligible to seek recovery and the types of emotional
distress for which recovery is available. See
ibid.; see
also
Metro-North, 521 U. S., at 436. This is not to say that
allegations of emotional distress need not be genuine and serious
in order to warrant compensation, but review for genuineness alone
does little or nothing to prevent capricious outcomes. Instead, the
responsibility of to day's Court is not to review whether an
individual claim alleging fear of cancer is genuine and severe, but
to adopt a rule that reconciles the need to provide compensation
for deserving claimants with the concerns that speculative damages
awards will exhaust the resources available for recovery.
III
The Court, to be sure, does refer to the admonition in
Metro-North that common-law rules must be adopted to avoid
the risk of "'unlimited and unpredictable liability.'"
Id.,
at 433 (quoting
Gottshall, supra, at 557). Yet the rule it
adopts is an unreasoned rule of limitation-a rule that does not
advance the goal of ensuring that fair and sensible principles will
govern recovery for injuries caused by asbestos.
The majority ends its opinion with a plea for legislative
intervention,
ante, at 166, an entreaty made before, see
Ortiz v.
Fibreboard Corp., 527 U. S. 815, 821
(1999);
id., at 865 (REHNQUIST, C. J., concurring);
id., at 866-867 (BREYER, J., dissenting). This case arises
under FELA, however, by which Congress has directed the courts, and
ultimately this Court, to use their resources to develop equitable
rules of decision. It is regrettable that the Court today does not
accept that responsibility.
These reasons explain my dissent from Part III of the Court's
opinion.
182
JUSTICE BREYER, concurring in part and dissenting in part.
I join Parts I, II, and IV of the Court's opinion. I agree with
JUSTICE KENNEDY, however, that the law does not permit recovery for
"fear of cancer" in this case. And I join his opinion dissenting
from Part III. Because the issue is a close and difficult one, I
mention several considerations that, in my mind, tip the
balance.
Unlike the majority, I do not believe that the Restatement
(Second) of Torts (1963-1964) (hereinafter Second Restatement)
comes close to determining the correct answer to the legal question
before us. Cf.
ante, at 148-149, 154 (majority opinion). The
Second Restatement sets forth a general rule of recovery for
"fright, shock, or other emotional disturbance" where an "actor's
negligent conduct has so caused any bodily harm to another as to
make him liable for" it. § 456. But the Second Restatement neither
gives a definition of the
kind of "emotional disturbance"
for which recovery is available nor otherwise states that recovery
is available for
any kind of emotional disturbance
whatsoever.
Ibid.
The underlying history underscores the openness of the legal
question and the consequent uncertainty as to the answer. When
Congress enacted the Federal Employers' Liability Act (FELA) in
1908,45 U. S. C. §§ 51-60, the kinds of injury that it primarily
had in mind were those resulting directly from physical accidents,
such as railway collisions and entanglement with machinery. See
Consolidated Rail Corporation v.
Gottshall, 512 U. S. 532, 542
(1994). And (where negligent conduct was at issue) the Restatement
nearest in time to FELA's enactment (and therefore presumably
likely to be more reflective of the background rules that FELA then
assumed, cf.
id., at 554-555) limited recovery for related
emotional distress to concrete harm resulting from that distress.
Restatement of Torts § 456 (1934) (hereinafter Restatement). In
particular, this earlier Restatement restricted recovery to
"physical harm resulting ... from
183
fright or shock or other similar and immediate emotional
disturbance" substantially caused by the underlying injury or
negligent conduct.
Ibid.
The later Second Restatement reflects subsequent court decisions
that liberalized this rule-(in the earlier Restatement's words) by
extending recovery beyond "physical harm" produced by "emotional
disturbance," and by removing the words "similar and immediate." §
456. Linguistically speaking, these changes to the Restatement
might reflect judicial extension of the scope of "emotional
disturbance" far beyond "expectable" or "intended" fears that
normally accompany, say, a collision or other machinery-related
accident, Second Restatement § 905, Comment
e, p. 458
(1977). They
might reflect judicial extension of liability
to the kind of "brooding, contemplative fear" at issue here,
ante, at 172 (KENNEDY, J., concurring in part and dissenting
in part). But they also
might reflect more limited judicial
holdings-say, holdings that extend liability to fears that arise
directly from the compensable injury itself
(e. g., the fear
of "shortness of breath," App. 298-299) or which arise directly
from the conduct that caused the injury (say, the fear of inhaling
asbestos fibers in a visible cloud of dust). The Second Restatement
does not say.
Nor do the Second Restatement's examples resolve the problem.
The most expansive example of recovery involves not worry connected
with toxic torts or the like, but a considerably more restricted,
directly connected worry "about the securing of shelter for [one's
self] and family" after "wanto[n]" eviction-the wantonness of the
eviction being a
special factor warranting particularly
broad recovery. Second Restatement § 905, Illustration 8, at 458;
see also
id., § 905, Comment
e, at 458.
Most important, different courts have come to different
conclusions about recovery for fear of cancer itself (even when
triggered by physical injury). The Restatements are not statutes.
They simply reflect predominant judicial
184
views. And the variety of answers courts have given to the
question at issue here demonstrates that courts have not reached a
consensus. See
ante, at 150-151, and n. 11 (majority
opinion);
ante, at 173-174 (opinion of KENNEDY, J.).
Given the legal uncertainty, this Court, acting like any court
interpreting the common law, see
ante, at 177 (opinion of
KENNEDY, J.), should determine the proper rule of law through
reference to the underlying factors that have helped to shape
related "emotional distress" rules. Those factors argue for the
kind of liability limitation that JUSTICE KENNEDY has described,
ibid.
First, the law in this area has sought to impose limitations
that separate valid, important emotional distress claims from less
important, trivial, or invalid claims. See
Metro-North Commuter
R. Co. v.
Buckley, 521 U. S. 424, 433
(1997). The presence of physical harm often provides a central
touchstone in this regard. But that does not work here. That is
because, given ordinary background risks, the increment in a
person's fear of cancer due to diagnosis of a condition such as
asbestosis seems virtually impossible to evaluate. See
ante,
at 178-179 (opinion of KENNEDY, J.). The evidence (viewed in the
plaintiffs' favor) indicates that, for a nonsmoker, a diagnosis of
asbestosis may increase the perceived risk of dying of cancer from
something like the ordinary background risk of about 22% (about two
chances in nine) to about one chance in three. See
ante, at
155 (majority opinion);
ante, at 178-179 (opinion of
KENNEDY, J.). See also L. Ries et al., National Cancer Institute,
SEER Cancer Statistics Rev., 1973-1999, Table 1-16 (2002),
available at http:// seer.cancer.gov/csr/1973_1999/overview.pdf (as
visited Mar. 3, 2003) (available in Clerk of Court's case file).
Would a reasonable person who is not already afraid of cancer when
the odds of dying are about two in nine suddenly develop a "genuine
and serious" and "reasonable" fear when those odds change to one in
three? Would a smoker, a risktaker whose conduct has already
increased the chance of cancer death to,
185
say, about one in four, compare Cagle, Criteria for Attributing
Lung Cancer to Asbestos Exposure, 117 Am. J. Clin. Path. 9 (2002),
with Ries,
supra, at Table 1-16, and whose chance of dying
of a smoking-related disease is already about 50-50, Centers for
Disease Control and Prevention, Projected Smoking-Related Deaths
Among Youth-United States, 45 Morbidity and Mortality Weekly Report
971 (1996), suddenly develop a reasonable, genuine, and serious
fear of cancer when the chance of cancer or smoking-related death
rises even further? There is simply no way to know, and it is close
to impossible, in the ordinary case, to evaluate a plaintiff's
affirmative answer.
Second, the law's recovery-limiting rules have sought to avoid
pure jury speculation, speculation that can produce "unlimited and
unpredictable liability."
Metro-North, supra, at 433
(internal quotation marks omitted). How is the jury, without
speculation, to measure compensation for the augmentation of a
cancer fear from, say, two in nine to one in three? Given the fact
that most of us lead our lives without compensation for fear of a
22% risk of cancer death, Ries,
supra, at Table 1-16, what
monetary value can one attach to an incrementally increased fear
due to a risk, say, of 30%? The problem here is not the unreality
or lack of seriousness of the fear. It may be all too real. The
problem is the impossibility of knowing an appropriate compensation
for asbestosis insofar as its appearance tears away that veil of
disregard that ordinarily shelters most of us from fear of cancer,
if not fear of death itself. The majority's verdict control
measures,
ante, at 159, n. 19, will not help much in this
respect.
Third, it would be perverse to apply tort law's basic
compensatory objectives in a way that compensated less serious
injuries at the expense of more serious harms. Yet, as JusTICE
KENNEDY points out, the majority's broad interpretation of the
scope of compensable fears threatens to do precisely that. The kind
of fear at issue here-a "brooding,
186
contemplative fear,"
ante, at 172 (opinion of KENNEDY,
J.), brought about by knowledge of exposure to a substance, or of a
present condition, correlated with an elevated cancer risk-is
associated quite generally with negligent exposure to toxic
substances. In addition to generating fear of cancer, such exposure
may well produce large numbers of plaintiffs, serious injuries, and
large monetary awards-all against limited funds available for
compensation. And, as the history of asbestos litigation shows,
such a combination of circumstances can occur despite a threshold
requirement of physical harm.
In such cases, as JUSTICE KENNEDY points out, a rule that allows
everyone who suffers some physical harm to recover damages for fear
of correlated cancer threatens, in practice, to exhaust the funds
available for those who develop cancer in the future, including
funds available to compensate for fear of cancer that has actually
developed.
Ante, at 168-170. It is estimated, for example,
that asbestos litigation has already consumed over $50 billion and
that the eventual cost may substantially exceed $200 billion. RAND
Institute for Civil Justice, S. Carroll et al., Asbestos Litigation
Costs and Compensation: An Interim Report 81 (2002), Petitioner's
Supplemental Lodging, p. SL82 (hereinafter RAND Institute). The
costs have driven dozens of companies into bankruptcy.
Ante,
at 169 (opinion of KENNEDY, J.). They have also largely exhausted
certain funds set aside for asbestos claimants-reducing the
Johns-Manville Trust for asbestos claimants, for example, from a
fund that promised to pay 100% of the value of liquidated claims to
a fund that now pays only 5%. RAND Institute 79-80. The concern
that tomorrow's actual cancer victims will recover nothing-for
medical costs, pain, or fear-is genuine. Cf.
ante, at 170
(opinion of KENNEDY, J.). And that genuine concern requires this
Court to make hard choices. Members of this Court have indicated
that Congress should enact legislation to help resolve the asbestos
problem. See,
e. g., Ortiz v.
Fi-
187
breboard Corp., 527 U. S. 815, 865 (1999)
(REHNQUIST, C. J., concurring). Congress has not responded. But
that lack of response does not require the courts to ignore the
practical problems that threaten the achievement of tort law's
basic compensatory objectives. In this case, those concerns favor a
legal rule that will permit future cancer victims to recover for
their injuries, including emotional suffering, even if that
recovery comes at the expense of limiting the recovery for fear of
cancer available to those suffering some present harm.
For these reasons, I would accept the majority's limitations on
recovery,
ante, at 157, while adding further restrictions to
rule out recovery for fear of disease when the following conditions
are met: (1) actual development of the disease can neither be
expected nor ruled out for many years; (2) fear of the disease is
separately compensable if the disease occurs;
and (3) fear
of the disease is based upon risks not significantly different in
kind from the background risks that all individuals face. Where
these conditions hold, I believe the law generally rules out
recovery for fear of cancer. This is not to say that fear of cancer
is never reimbursable. The conditions above may not hold. Even when
they do, I would, consistent with the sense of the common law,
permit recovery where the fear of cancer is unusually severe-where
it significantly and detrimentally affects the plaintiff's ability
to carry on with everyday life and work. Cf.
Ferrara v.
Galluchio, 5 N. Y. 2d 16, 19, 152 N. E. 2d 249, 251 (1958)
(awarding damages for a psychiatrist-confirmed case of "severe
cancerophobia" from a radiation burn). However, because I believe
that the above limitations create a rule more restrictive than the
jury charge here,
ante, at 143 (majority opinion), and,
indeed, would bar recovery as a matter of law in this case, I too
respectfully dissent from Part III of the Court's opinion.
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