In what could be a landmark case, a closely divided Supreme Court ruled 5-4 last month that the fear of developing asbestos-related cancer is enough for a group of railroad workers already suffering from asbestosis to collect monetary damages, although they are showing no signs of cancer and may not develop the disease.
Knowing he or she is at greater risk of developing cancer because of 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.
She did say 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 granting 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.
"The court could not be more clear," said Joseph F. Rice, managing partner of Ness Motley, the Mt. Pleasant, S.C., law firm that represented the railroad workers. "Workers who are sick with asbestosis have a legitimate fear of developing mesothelioma and other potentially fatal forms of cancer--and they should be compensated accordingly."
Insurance companies and businesses already buried under thousands 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. Auto parts manufacturer Federal-Mogul Corp. recently 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 provides 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."
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