Railway workers suffering from asbestosis may recover damages under FELA for mental anguish of fear of developing cancer

Law Reporter, May 2003

Norfolk & W. Ry. Co. v. Ayers, __ U.S. __, No. 01-963, 2003 WL 888363 (Mar. 10, 2003).

The U.S. Supreme Court held that railroad workers suffering from asbestosis may recover damages under the Federal Employers' Liability Act (FELA), 45 U.S.C. [sec][sec] 51-60, for mental anguish caused by their fear of developing cancer.

The Supreme Court reviewed its holdings in two previous FELA cases, Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994), 37 ATLA L. Rep. 318 (Oct. 1994), and Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424 (1997), 40 ATLA L. Rep. 232 (Aug. 1997). The holdings yield two categories of emotional distress cases: (1) standalone emotional distress claims not provoked by physical injury, for which recovery is sharply circumscribed by the zone-of-danger test, and (2) emotional distress claims brought on by a physical injury, for which pain and suffering recovery is permitted, the Court determined.

Here, plaintiffs' case is more closely aligned with the second category of emotional distress cases, where the fear of injury stems from a current injury. Both parties agree that asbestosis is a cognizable injury under FELA, the Court noted. Claims for pain and suffering associated with a physical injury are compensable, and at the time FELA was enacted, the common law had evolved to encompass apprehension of future harm as a component of pain and suffering.

Once a negligent actor is found to be liable for any bodily harm, the actor is answerable in damages for emotional disturbance resulting from the bodily harm or from the conduct that causes it, the Court found, citing the Restatement (Second) of Torts, [sec] 456. An asbestosis sufferer may seek compensation for fear of cancer as an element of his asbestosis-related pain and suffering damages, the Court held. The claimant must show the alleged fear is genuine and serious.

Plaintiffs' Counsel

Sean Donahue, Lexington, Va.

*James H. Rion Jr., Mt. Pleasant, S.C.

*Lawrence M. Mann, Washington, D.C.

Richard J. Lazarus, Washington, D.C.

*James A. McKowen, East Charleston, W.Va.

Amicus Counsel

*Brent M. Rosenthal, Dallas, Tex.

*William G. Jungbauer, Minneapolis, Minn.

*Ned Miltenberg, Washington, D.C.

Comment: The Court also found that under FELA a railroad employee whose injury was caused in part by the railroad may recover full damages against it, and the railroad must then seek contribution from any other tortfeasors involved.