Today the Supreme Court reversed the award of damages to a former railroad worker based on his fear of developing cancer in the future. The Court held that the damages award could not stand because the jury was not specifically instructed that a plaintiff claiming fear of cancer must prove that the fear is "genuine and serious."
In the case, CSX Transportation Inc., v. Hensley, a former railroad electrician claimed that his old employer caused him to develop asbestosis (noncancerous scarring of the lung tissue) through long term exposure to asbestos. He was also exposed to a solvent which caused irriversible brain damage, ending his career. The plaintiff sought pain and suffering damages that included damages for his fear of developing cancer in the future. At both the trial court and appellate level, Tennessee courts agreed with him. Today, however, the Supreme Court reversed the lower court and remanded the case back down because the trial court did not include instruction to the jury that the plaintiff must prove his fear of cancer to be genuine and serious.
Railroad employees are covered by the Federal Employers' Liability Act (FELA). FELA allows railroad employees to seek damages for injuries caused by their employers' negligence. The Supreme Court has previously held that under FELA, plaintiffs with asbestosis may obtain damages for fear of developing cancer in the future, with the caveat that they prove the fear to be genuine and serious.
In his dissent, Justice David Souter argued that he found it "hard to believe the jury would have awarded any damages for Hensley's fear of cancer if it did not believe that fear to be genuine and serious." He also drew attention to a statistic included in the 2003 Supreme Court case allowing damages for asbestosis sufferers with fear or cancer -- that those with asbestosis have a significant (1/10) chance of dying from the fatal cancer mesothelioma.
While plaintiff oriented groups cite the increased risk of cancer amongst those with asbestosis, and the legitimacy of claims regarding the fear caused by this increased cancer risk, defense oriented groups urge limits on fear-of-cancer damages as a way to reduce the enormous volume of asbestos litigation.
Today's opinion applies only to FELA and railroad workers. However, both sides of the asbestos litigation debate argue that the fear-of-cancer issue (and the Court's ruling on it) could spread into asbestos related tort claims outside the railroad industry.