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The Supreme Court’s March 10th ruling in Norfolk & Western Railway Co. v. Ayers, No. 01-963, marks the Court’s third recent foray into the federal tort law that is the Federal Employers’ Liability Act (FELA) and provides ammunition for plaintiffs in product liability cases who are seeking to recover damages for mental anguish. In Ayers, the Court, by a 5-4 majority, held that mental anguish damages resulting from fear of cancer may be recovered under FELA by a railroad worker suffering from asbestosis caused by asbestos workplace exposure. The Ayers ruling will be read by some as significantly expanding FELA recovery opportunities, and the ruling’s reliance on non-FELA authorities (the Restatement of Torts, state court decisions, and so on) may suggest implications beyond FELA. Indeed, it seems likely that attorneys in non-FELA asbestos cases will try to use Ayers to expand their recoveries of damages for mental anguish resulting from fear of cancer. Further, nothing in the Court’s opinion expressly limits the application of the case to the asbestos world, so its rule could also surface in other products contexts where the potential harm to a plaintiff may not be readily apparent. It is clear, however, that Ayers erects boundaries on FELA recovery that merit close attention, as do its two dissenting opinions, perhaps telegraphing where these aspects of the common law might “evolve” next.

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