THE COUNSELOR’S
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 from asbestosis, 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 and for 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, I do 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.