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Sam Heldman


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Thursday, October 31, 2002
No. 01-963 Norfolk & W. Ry. Co. v. Ayers

One thing I don't understand in this case is why the Findlaw Supreme Court Center listing for this case lists the questions presented in the following, clearly prejudiced, manner:

    Was it error for the court below, in conflict with decisions of federal courts of appeals, state supreme courts, and prevailing common-law principles, to award emotional distress damages under the Federal Employers' Liability Act to retired employees who alleged workplace exposure to asbestos and other dusts, but who presented no evidence of physical manifestation or other corroboration of injury related to their alleged fear of cancer?

    Was it error for the court below, in conflict with decisions of federal courts of appeals, state supreme courts, and evolving common-law principles, not to apportion damages under the FELA among tortfeasors?

The above is how the questions are presented in the petition itself, but in the Petitioner's brief the questions are stated a little more objectively:

    Whether a plaintiff who has asbestosis but not cancer
    can recover damages for fear of cancer under the Federal
    Employers Liability Act ("FELA") without proof of physical
    manifestations of the claimed emotional distress?

    Where there is evidence that a plaintiff's injury and
    damages have non-railroad causes, does FELA permit
    reasonable apportionment so that the railroad is responsible
    only for those damages attributable to its own negligence?

In any case, the questions are whether you can recover under FELA for damages for emotional distress for fear of cancer, and whether such damages should be apportioned or subject to joint and several liability.

The Respondents in this case were employed by the Petitioner and were exposed to asbestos. Each was diagnosed with "asbestosis" which apparently is a disease you get from asbestos exposure.* The Railroad moved for a jury instruction that would have prevented the jury from awarding damages for "fear of cancer" absent actual likelihood of contracting cancer or some physical manifestation of that fear.

    * Incidentally, if anyone knows what I should do about some floor tiles in my basement that are made of asbestos and a couple of which are falling apart, please e-mail me at the address on the left.

The odd thing about this case relates to one of those kind of neat things about our federal system. Each State can set up its court system however it pleases. So in this case, direct appeal was to the West Virginia Supreme Court, which, like the Supreme Court, has discretionary review. The West Virginia Supreme Court denied direct review, so here we are at the Supreme Court of the United States with no opinions below. Makes it seem like practicing in West Virginia would be fun because it's just two hops to the Supremes. Of course, you have to have a case that the Court wants to hear.

Which brings us back to Ayers. As I recall from my Torts class, you can't just get "emotional distress" because you are upset. That is a myth encouraged by television shows and popular distain for the legal process. You need to have some physical manifestation of emotional distress. And as has been said elsewhere, the Court doesn't take cases to affirm. My guess is that the Court is even less likely to take a case with no opinions below in order to affirm the trial court's jury instructions. Thus, I think the Court will REVERSE on the question of damages for "fear of cancer," and will not reach the apportionment question.