†††††††††††††††††††††††††††††††††††††††††††††††† THE COUNSELORíS CORNER


Now this is an interesting decision.The question in this case is, if you are a railroad worker who was exposed to asbestos, and you are suffering fromasbestosis, which is a lung disease caused by exposure to asbestos, are you entitled to damages from your employer for THE FEAR OF CONTRACTING CANCER?The United States Supreme Court says yes.The opinion written by Justice Ginsburg says that the fear must be "genuine and serious," although those terms are not defined.


This decision upheld a $4.9 million award to six retired railroad workers who have asbestosis.This decision is consistent with a California case in 1993 in which our State Supreme Court ruled that employees who are exposed to cancer-causing substances can win damages for fear of cancer if they can prove that it is " more likely than not " that they will develop cancer in their lifetime.They can win the lawsuit even if they have not yet developed any illness or injury.†† The present case took place in West Virginia, the defendant being Norfolk and Western Railway Company.In the Norfolk case the six former employees claimed that their injuries were due to their having been exposed to asbestos while they repaired locomotive engines.The company was charged with negligence in exposing them as such.All six do have asbestosis, and the impaired lung capacity that goes with it, and each claimed that he suffered significant emotional distress due to the fear of contracting lung cancer.The final judgement in this case totaled $4.9 million, which included both money for actual damages andfor the previously mentioned emotional distress.The railroad appealed and that led to the Justices' ruling.


I think the best case made for the minority was put forth by Justice Kennedy, who wrote for the dissenting justices.His concern is that in the future, workers who have the greatest exposure to asbestos will be out of luck because other employees with lesser injuries claiming fear of cancer will get all the money that's available. His concern is that the railroad and/or its insurance companies will end up paying out damages to people with relatively modest injuries, leaving those who suffer severely at a later period of time, without a remedy.This view was supported by Justice Breyer in dissent, who notes that "dozens of companies have been driven into bankruptcy, and some asbestos funds have been exhausted.†† .†† .Tomorrow ' s actual cancer victims will recover nothing. "


While I respect that which is put forth by Justices Kennedy and Breyer, I don't think that a money driven solution is called for here.This case should be decided on the merits.Either people deserve to be compensated for " fear of cancer " or they don't.I don't believe it is appropriate to look at how much money that will eat up and what will be left for others who theoretically will suffer and make claims in the future.Perhaps the answer is to not continue to submit your employees to major contact with asbestos so you won't have to worry about this at all.


Justice Ginsberg further defended her ruling by rejecting an argument put forth by the Bush administration that the fear of cancer is not related to asbestosis.Justice Ginsberg indicated that the relationship between asbestosis and cancer is indisputable, noting that approximately 10% of those who contract asbestosis do eventually die of cancer.


An interesting and somewhat unusual aspect of this case is that the ruling does not require that plaintiffs "prove" their fear of cancer through psychological tests or by showing that their ability to carry on an everyday existence has been harmed.They just need to prove that their fear is "genuine and serious" which is unfortunately vague.


So what do you think? I do not see this issue as especially clear-cut; however, Ido side with the majority in this case.I do not accept the business and financial-related arguments here.If something is wrong, it is wrong, regardless of what the outcome will be for the railroad companies and their insurance carriers.What the United States Supreme Court has done, in fact, is memorialize what the large majority of the lower courts who are seeing these cases have been doing.They have been ruling in favor of the plaintiffs, and the Supreme Court acknowledged the appropriateness of those decisions.





Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger & Grover, and a therapist at the Foothill Centre for Personal and Family Growth.Mr. Unger writes a bimonthly column on legal and psychological issues.He can be reached at charlieunger @hotmail.com