(The following article by David Stout appeared on the New York Times online on March 10.)
WASHINGTON — Railroad workers who have a noncancerous illness because of exposure to asbestos on the job can recover damages for mental torment over the prospect of actually getting cancer itself, the Supreme Court ruled today.
In a 5-to-4 decision that was anxiously awaited by insurance and business interests for its potential impact outside the railroad industry, the court upheld a jury award of nearly $5 million for six former railroad workers from West Virginia who had developed a noncancerous lung disease, asbestosis, after being exposed to asbestos dust.
Asbestosis itself does not lead to cancer. But people who have the condition are statistically vulnerable to cancer, including a deadly form called mesothelioma, which attacks the chest cavity and causes excruciating pain that is relieved only by death.
“Heightened vulnerability to cancer, as one court observed, `must necessarily have a most depressing effect upon the injured person,’ ” Justice Ruth Bader Ginsburg wrote for the majority, quoting from an earlier decision. Invoking the metaphor of the sword of Damocles, she continued, “he knows it is there, but not whether or when it will fall.”
The decision contained what Justice Ginsburg called “an important reservation.” That is, the person suing for damages must prove that “his alleged fear is genuine and serious.”
The case, Norfolk & Western Railway Company v. Ayers, No. 01-963, is among a multitude of legal actions arising from the use of asbestos. Once widely and openly used for fireproofing and other industrial purposes, asbestos was found decades ago to cause several serious illnesses. The latency period for some cases has been 30 to 40 years, accounting for many instances in which factory workers exposed during World War II became ill in late middle age.
Negligence claims against employers are still increasing, with thousands of new ones filed each year, including a significant number by people who are currently healthy and may never become ill.
The Bush administration had joined the West Virginia case on behalf of the railroad, since it involves the application of the 1908 Federal Employers’ Liability Act, which governs the rights of railroad workers. While rail workers are the only people immediately affected by today’s ruling, there could be a wider impact in years to come, since interpretations of the 1908 law often influence the evolution of state negligence law, as well as the application of other federal liability statutes.
Justice Ginsburg was joined by Justices John Paul Stevens, Antonin Scalia, David H. Souter and Clarence Thomas. Justice Anthony M. Kennedy wrote a dissent joined by Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor and Stephen G. Breyer.
All nine justices agreed on a separate issue: that the 1908 law allows the affected workers to collect their entire damages directly from the railroad, thus placing the burden of seeking money from other negligent parties on the railroad. Texts of the decisions can be read on the court’s Web site, www.supremecourtus.gov.
In his dissent, Justice Kennedy noted that all but one of the six railroad workers had a long history of tobacco use. He worried, too, that compensating people like the plaintiffs in the West Virginia case would exhaust resources for payment, thus denying damages to people whose injuries were real rather than speculative.
“Today’s decision is not employee-protecting,” Justice Kennedy wrote. “It is employee-threatening.”
The court ruled several years ago that mere exposure to asbestos was not sufficient to establish liability under federal law. When the justices heard the West Virginia case on Nov. 6, the plaintiffs’ counsel argued — successfully, as it turned out — that the plight of the six workers was different, because they were actually sick and had good reason to fear they might get cancer.