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Adding fuel to the debate over asbestos litigation, the Supreme Court on March 10 ruled by a 5-4 vote that railway workers who suffer from asbestosis should also be able to recover damages for fear of asbestos-related cancer. Rail workers would still have to prove that their fear is “genuine and serious,” but the Court did not specify how that can be shown or refuted. In a separate section of the ruling in Norfolk & Western Railway Co. v. Ayers, No. 01-963, the Supreme Court unanimously agreed that under the Federal Employers’ Liability Act (FELA), railroads can be held completely liable for work-related asbestos claims, even if other companies or causes contributed to the disease. Justice Ruth Bader Ginsburg, writing for the Court, said that in spite of the “elephantine mass” of asbestos litigation facing the judiciary, courts must not “reconfigure established liability rules because they do not serve to abate today’s asbestos litigation crisis.” The Supreme Court’s double blow to business will add impetus to efforts in Congress to act on the asbestos litigation crisis, says Robin Conrad, senior vice president of the National Chamber Litigation Center. “How many times can Congress and the Court fail to act?” asks Conrad. “This decision emphasizes the need for a national solution.” At a Senate Judiciary Committee hearing last week, Chairman Orrin Hatch (R-Utah) gave industry and labor factions two weeks to come up with legislation that would establish medical standards and new funding for asbestos claims. Asbestos claims, which show no signs of waning, have already cost industry more than $50 billion and driven more than 50 companies into bankruptcy. Justice Anthony Kennedy, dissenting on the “fear of cancer” issue, voiced concern that the practical effect of the Court’s ruling will be to drain funds available to pay for new and existing claims alike. “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,” Kennedy wrote. Also in dissent were Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Stephen Breyer. Breyer wrote separately to underscore the danger that funds to pay asbestos claims will be depleted by expanding liability. Congress’ failure to act, Breyer wrote, “does not require the courts to ignore the practical problems that threaten the achievement of tort law’s basic compensatory objectives.” The case at hand arose when Norfolk & Western appealed nearly $5 million in damage awards given in West Virginia to six rail workers who included fear of cancer among their claims. Five of the six also smoked, and two continued smoking after being diagnosed with asbestosis. The claims were made under FELA, a law passed by Congress in 1908 that has often been interpreted to keep rail carriers from escaping liability. Georgetown University Law Center professor Richard Lazarus, who represented the railroad workers, applauds the Court for sending a clear message to state judges. “The Court’s statement that the asbestos liability problem does not provide an occasion for broad reform of tort law principles by judges will likely chill many state judges from engaging in such reform,” says Lazarus. “Those judges are likely to conclude, like the majority, that such context-specific concerns like asbestos are more properly addressed by legislatures than by judges in common law adjudication.” Norfolk & Western’s lawyer Carter Phillips of Sidley Austin Brown & Wood says the ruling was “disappointing,” but would not drastically increase the number of claims against railroads under FELA. “I don’t think it will mean more cases, because it only applies if the plaintiff has asbestosis,” says Phillips. “It also doesn’t help decide how much proof is necessary to show emotional injury, so I don’t think the railroads will easily agree to larger settlements based on this claim.” He does suggest that railroad employers might be less willing to take cases to juries, because “the fear-of-damages claim is a wild card.” The industry’s Coalition for Asbestos Justice also sees a silver lining in the decision. “The fact that the Court confined its ruling to people who are really sick is very important,” says coalition counsel Victor Schwartz of the D.C. office of Shook, Hardy & Bacon. A large number of new asbestos claims in recent years, says Schwartz, have come from workers who have no signs of injury. Those claims got no boost from the Court’s March 10 ruling, Schwartz says.

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