Supreme Court: Fear of Cancer Is Enough to File Claim

In what could be a landmark case, a closely divided Supreme Court ruled 5-4 yesterday the fear of developing asbestos-related cancer is enough for a group of railroad workers already suffering from asbestosis to collect monetary damages, even if they are showing no signs of cancer and may never develop the disease.

Knowing they are at greater risk of developing cancer because of documented asbestos exposure "must necessarily have a most depressing effect upon the injured person," Justice Ruth Bader Ginsburg wrote for the majority, which included Justices John Paul Stevens, Antonin Scalia, David Souter and Clarence Thomas. "Like the sword of Damocles, he knows it is there, but not whether or when it will fall."

She did say that it was "incumbent upon such a complainant" to prove the alleged fear of developing cancer "is genuine and serious."

In the case, Norfolk & Western Railway v. Ayers, the Supreme Court upheld a jury verdict that granted six retired railroad workers from West Virginia an award of $4.9 million from Norfolk & Western Railway Co. The railroad appealed the case, which eventually landed at the Supreme Court.

Insurance companies and businesses already buried under mounds of asbestos-related lawsuits hoped the Supreme Court would rule in favor of the railroad. Asbestos claims have already cost U.S. companies an estimated $275 billion in payouts and legal fees. Payment of asbestos claims has bankrupted many companies, and just last week, auto parts manufacturer Federal-Mogul Corp. filed a reorganization plan with the U.S. Bankruptcy Court, asking that half of its stock be set aside to pay off hundreds of millions in asbestos liability claims.

Although the Supreme Court acknowledged the logjam of asbestos cases, expected by many to increase as workers who are not sick but fear becoming ill in the future file cases, it said remedying the problem is a job for Congress.

Norfolk & Western attorney Carter Phillips said an opportunity was lost "to bring a little bit of clarity, a slight amount of sensibility to this process." He said he hoped the case would provide an incentive for Congress to act on limiting or changing the medical criteria for the filing of asbestos cases.

The dissenting justices worried that claims filed by workers with less-serious illnesses who fear developing cancer might leave workers who show no signs of any illness now, but who might develop cancer in the future, with little or no compensation. Development of asbestos-related illness can have a latency period of as much as 30 years, according to experts.

Justice Anthony M. Kennedy, writing the dissenting opinion, said, "These cancers inflict excruciating pain and distress, pain more severe than that associated with asbestosis, distress more harrowing than the fear of developing a future illness. It is only a matter of time before the inability to pay for real illness comes to pass. The court's imprudent ruling will have been a contributing cause to this injustice."

Justices Sandra Day O'Connor and Stephen Breyer, along with Chief Justice William H. Rehnquist, also dissented.

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