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In Norfolk & Western R. Co. v. Ayers, 123 S.Ct. 1210 (2003), a majority of the U.S. Supreme Court held that mental anguish damages resulting from the fear of developing cancer may be recovered under the Federal Employers’ Liability Act (FELA). The case involved a railroad worker suffering from an undisputed case of asbestosis caused by work-related exposure to asbestos. The Court concluded, however, plaintiffs must prove that their alleged fear is “genuine and serious.” Although Ayers, in a formal sense, governs only FELA claims, the recognition of such damages inserts the Court’s views into the long-running debate over whether such claimed injuries give rise to cognizable claims and may very well influence other courts’ jurisprudence. BACKGROUND The plaintiffs alleged that Norfolk & Western Railway Company (Norfolk) negligently exposed them to asbestos in an occupational setting and thereby caused them to contract the disease asbestosis. The plaintiffs brought suit in a West Virginia state court under FELA, and as an element of their damages, sought recovery for mental anguish based on their fear of developing cancer. Norfolk argued that an asbestosis sufferer could only recover damages for fear of cancer if they proved both an actual likelihood of developing cancer and physical manifestations of the alleged fear. The former would potentially implicate difficult questions of scientific causation and the latter would provide objective physical evidence of a basis for the claims. The trial court rejected Norfolk’s proposed instruction and instead 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 jury returned total damages awards for each asbestosis claimant ranging from $770,000 to $1.2 million. The Supreme Court majority (Ginsburg with Stevens, Scalia, Souter and Thomas joining) reached its finding based on the common law, as it had earlier set it out in Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424 (1997), and by reference to the Restatement of Torts Second, � 456(a). Metro-North described two categories of claims for emotional distress damages: stand-alone emotional distress claims not accompanied by any physical injury, for which recovery is limited 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. The majority placed Ayers in the emotional distress stemming from a physical injury category as asbestosis, on the record developed in Ayers, was cognizable as a disease and injury. The Restatement (Second) of Torts, � 456 states: 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 (a) fright, shock, or other emotional disturbance resulting from the bodily harm or from the conduct which causes it, and (b) further bodily harm resulting from such emotional disturbance. The majority relies on � 456(a) to find that once a party is “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.’” The majority further relies on the restatement to address the fact that asbestosis, the bodily harm at issue here, does not cause cancer and could therefore not be the cause of a fear of cancer. Recovery is allowed because asbestos exposure, the conduct which causes the bodily harm, suffices to meet the causal link with the fear of cancer. The majority further finds that the link between exposure and fear of cancer is not too remote because (a) asbestosis indicates heavy exposure which increases the risk of lung cancer; and (b) the increase is greater than any background risk that the general population faces. As a result a plaintiff must prove bodily harm but not necessarily physical manifestations of the emotional disturbance. Rather the plaintiff must prove that the alleged fear is “genuine and serious.” CORRELATION IS NOT CAUSATION The dissent (Kennedy with Rehnquist, O’Connor and Breyer joining) takes the majority to task over their “wooden” adoption of the restatement because “it begs the question: what relationship between a disease and associated emotional distress should entitle a person to compensation for the distress as pain and suffering?” The dissent finds that the lack of a causal nexus between asbestosis and cancer makes it similar to allowing recovery for fear of cancer on the basis of mere exposure. The similarity leads the dissent to treat fear of cancer from asbestosis the same as Metro-North treated mere exposure. Namely, that evaluating and quantifying an incremental increase in the risk of dying from cancer was beyond the ability of a jury to evaluate with precision and without caprice. Statistical evidence “(viewed in the plaintiffs’ favor) indicates that, for a non-smoker a diagnosis of asbestosis may increase the perceived risk of dying of cancer from something like the ordinary background risk of about 22 percent (about two chances in nine) to about one chance in three” causing the dissent to worry about a jury’s ability to derive from statistics a fair estimate of the danger caused by exposure to asbestos. In a separate dissent, Justice Stephen Breyer questioned whether a reasonable person would develop a “genuine and serious” fear upon learning of such a marginal increase, and further, whether a smoker whose risk-taking behavior had already increased their likelihood of dying from a smoking-related disease would suddenly develop a “genuine and serious” fear of cancer. The dissent would have found that for a person’s emotional distress to qualify as compensable pain and suffering it must be the direct consequence of an injury or condition. The dissent also supported its call for a higher causal standard by reference to policy considerations. The dissent was concerned that jury trials with complicated evidence about marginal increases in risk of cancer and the genuineness of a plaintiff’s fear that are accompanied by vivid descriptions of the agony of cancer would lead to unlimited and unpredictable liability. The dissent argues that denying recovery for fear of cancer upon diagnosis of asbestosis is consistent with the objectives of FELA to provide compensation. Adopting a rule that allows for recovery based on correlation rather than causation means that the limited pool of funds for compensation will be depleted by paying people for unrealized fears and leaving those who actually do contract cancer sometime in the future without compensation. In a world of fast diminishing resources for asbestos-injury claimants the allowance of immediate large-scale recoveries may make FELA’s goal of compensation unattainable in the future. The dissent also referred to the “separate disease rule” under which most courts have held that the statute of limitations runs separately for each asbestos-related disease. As a result, asbestosis claimants may bring a second action if cancer develops so that they are not without a remedy for pain and suffering caused by cancer. The dissent cites the Supreme Court of Pennsylvania’s decision in Simmons v. Pacor, Inc., 543 Pa. 664 (1996) with approval as it explains that the separate disease rule was adopted to remove the inequity of denying recovery for diseases with a long latency. To allow recovery for fear of cancer now erodes the purpose of the separate disease rule as there may be insufficient funds for those actions that are commenced once the actual cancer is diagnosed. The issue becomes not whether the asbestosis claimants can recover for cancer-related emotional damages, but when. The majority points out that the “when, not whether” argument has a large gap; it excludes recovery for any present “genuine and serious” fear experienced by an asbestosis sufferer who never gets cancer. This is of course the dissent’s point as the exclusion of asbestosis sufferers who never get cancer means ensuring those who do get cancer can be compensated. GENUINE, SERIOUS FEAR The majority’s decision means that the law’s concern to be able to separate valid, important emotional distress claims from less important, trivial or invalid claims is now enforced by the “genuine and serious” fear requirement rather than the causal link between the harm, or conduct causing the harm, and the fear. The majority did not define “genuine and serious” but its citation of Smith v. A. C. & S., Inc., 843 F.2d 854 (5th Cir. 1988) means that general concern for one’s future health is insufficient. However, Justice Breyer, in a separate dissent, provided guidelines for proving a genuine and serious fear of contracting cancer: physical harm, how close in time actual development of cancer can be predicted; fear resulting from actual onset of cancer; the incremental increase of the risk faced by all individuals and the degree to which it significantly and detrimentally affects the plaintiff’s ability to carry on with everyday life and work. It therefore seems likely that future cases will need to adduce substantial evidence from a plaintiff of their state of mind and the basis for any fear as well as expert evidence of statisticians, doctors and psychiatrists. The policy concerns of preventing sham claims and the avoidance of jury speculation means that plaintiffs must bear a heavy burden of proof commensurate with the normal meaning of “real and serious” and judges must not allow claims to go to the jury unless such a burden is met. New York is one state where the highest court has not ruled on the issue of the availability of fear of cancer damages resulting from an asbestosis diagnosis, making the debate in the U.S. Supreme Court relevant. The New York Court of Appeals in Ferrara v. Galluchio, 176 N.Y.S.2d 996 (1958), dealt with recovery for mental injury generally by requiring “some guarantee of genuineness” to prevent fraudulent claims. The lower New York courts have sought to ensure genuineness in asbestos cases through allowing the plaintiff to recover if they can establish that they were in fact exposed to the disease-causing agent and that there is a “rational basis” for the fear of contracting the disease. The court in Wolff v. A-One Oil, Inc., 627 N.Y.S.2d 788 (N.Y. App. Div. 2d Dep’t 1995) found a rational basis was established when the plaintiff demonstrated a clinical presence of asbestos fibers in the lungs, or some indication of an asbestos-induced disease. The Ayers decision, although not binding on New York courts, suggests that “rational basis” may be too low a threshold for allowing recovery and something more akin to a “genuine and serious” fear may be necessary to guarantee genuineness. This is particularly so when the indication of an asbestos-related disease, such as asbestosis, is used as a proxy for causation even though asbestosis does not cause cancer. Alternatively, New York, being a “separate disease rule” state pursuant to CPLR � 214c, may find the dissent’s reasoning attractive as it accommodates the realities of limited funds for compensation and the difficulties in quantifying an incremental increase in the risk of dying from cancer. James L. Stengel is a partner at Orrick, Herrington & Sutcliffe, www.orrick.com. Michael Legg is an associate at the firm. Yishai Boyarin, a summer associate at the firm, assisted in the preparation of this article. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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