The Supreme Court ruled yesterday that six railroad workers can recover damages from their employer because they feared they would succumb to cancer after they developed another asbestos-related lung disease on the job. The decision reaffirms employee rights to sue at a time of intense business efforts to limit asbestos litigation.
The court held 5 to 4 that a federal law governing employee suits against railroads permits workers to seek damages when their fear stems not from the mere fact that they have been exposed to asbestos, but from their having contracted asbestosis, which is associated with higher risk of a virulent form of lung cancer known as mesothelioma.
The explosion of asbestos litigation calls for a national legislative solution, Justice Ruth Bader Ginsburg wrote in the court's opinion, but courts "must resist pleas of the kind [the railroad] has made, essentially to reconfigure liability rules because they do not serve to abate today's asbestos litigation crisis."
Ginsburg likened the workers' situation to plaintiffs bitten by dogs, long permitted under common law to recover not only for the bites but also for the fear that they will develop rabies.
The health dangers of asbestos have been known for decades, but the flow of lawsuits claiming manufacturer and employer negligence in connection with the substance continues. The business community's fear is that many employees who have not yet manifested symptoms will seek damages for the fear of illness they feel after exposure.
The case decided yesterday, Norfolk & Western Railway Co. v. Ayers, No. 01-963, involved claims of six retired workers who won a $4.9 million jury verdict over Norfolk & Western in a West Virginia county court. The company's appeal attracted support from the business community, which saw a chance to elicit a signal to state courts that might rein in asbestos litigation.
But no such signal was forthcoming in a case that cut across the court's usual liberal-conservative lines. Ginsburg was joined by Justices John Paul Stevens, Antonin Scalia, David H. Souter and Clarence Thomas.
Justice Anthony M. Kennedy dissented, joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Stephen G. Breyer.
In a strongly worded opinion, Kennedy wrote that the majority's decision would benefit those who fear cancer at the direct expense of those who actually develop it.
"[B]y the time the worker is entitled to sue for the cancer," he wrote, "the funds available for compensation in all likelihood will have disappeared, depleted by verdicts awarding damages for unrealized fear, verdicts the majority is so willing to embrace."
Breyer wrote separately, emphasizing that asbestos litigation has already cost the economy $50 billion on the way to a total bill of more than $200 billion -- and "driven dozens of companies into bankruptcy."
"Congress has not responded," Breyer noted. "But that lack of response does not require the courts to ignore the practical problems that threaten the achievement of tort law's basic compensatory objectives."
All nine justices did agree, however, that once it had been found liable, Norfolk & Western was not entitled to spread damages among everyone who might have caused the workers' lung ailments, except for the workers themselves, some of whom smoked heavily. One of the workers spent only a relatively brief portion of his career at Norfolk & Western.
Separately, the court announced yesterday that it would hear a case involving the scope of an accused person's right to remain silent in the face of police questioning.
The case, Fellers v. U.S., No. 02-6320, involves John Fellers, an alleged Nebraska drug dealer who confessed to police at his home without first being advised of his right to remain silent; he then went to the police station, where he received the warnings, waived his right to an attorney and repeated his confession.
Fellers now says the evidence should have been excluded because he was not advised of his rights before the first conversation.
The case will be heard in the fall, and should be decided by July 2004.