The issue arises in the case of Norfolk & Western Railway Co. v. Ayers, in which six former employees of N&W said they were exposed to asbestos on the job and sued the company for negligence. The employees said they had suffered emotional distress due to fear of contracting cancer. N&W argued that the employees did not show any physical manifestation of emotional distress.

Nonetheless, the trial court judge on the Circuit Court of Kanawha County, W.V., instructed the jury that if a plaintiff had a “reasonable” fear of cancer that was related to exposure to asbestos, he was entitled to recovery. Moreover, the judge said that N&W should be held liable for all damages, even if the employees may have also been exposed to asbestos at other jobs.

The jury awarded the plaintiffs $5.8 million. The West Virginia Supreme Court of Appeals refused to review the award. N&W then asked the U.S. Supreme Court to hear the case, which it agreed to do.

In a separate brief filed with the court, the Washington-based American Insurance Association said that allowing recovery for “fear of cancer” would jeopardize the ability of the insurance industry to provide fair compensation to those who sustain actual injuries.

AIA noted that the case was filed under the Federal Employers Liability Act (FELA), which provides a federal cause of action to railroad employees who are injured due to their employers negligence. However, AIA said, FELA requires, at a minimum, that plaintiffs prove some physical manifestation of the claimed emotional distress. “FELA does not permit recovery for fear of developing, in the future, a disease that the plaintiff does not now have and may well never contract,” AIA said.

Moreover, AIA added, to recover for emotional distress, the plaintiffs alleged fears must be reasonable. The probability of contracting cancer, AIA argued, has to arise from the alleged toxic exposure, not some other cause.

However, AIA said, in this case, all but one of the plaintiffs were current or former smokers, and smoking is the predominant cause of lung cancer. “Simply stated, if plaintiffs who smoke have a fear of cancer, that fear is reasonably related to their smoking, not to the violation of any legal duty owed by a FELA defendant,” AIA said.

In their brief, the Coalition for Asbestos Justice and NAM said that the West Virginia court also erred in instructing the jury to hold Norfolk & Western liable for all damages, even though the plaintiffs may have also been exposed to asbestos elsewhere.

FELA, the brief says, calls for damages to be based on proportionate responsibility. Indeed, the brief says, in the asbestos context, holding a single defendant liable for all damages contributes to the spiral of bankruptcies. So long as defendants only marginally responsible for asbestos-related injuries may be held liable for full damages, the brief said, they are inviting targets.

Defendants such as Norfolk & Western, the brief said, had no control over the actions of asbestos manufacturers, and they had no specialized knowledge of the risks of asbestos exposure or ways to combat the risks. “It is fundamentally unfair to hold such defendants fully liable for injuries caused primarily by other, far more culpable actors,” the brief said.

Members of the Coalition for Asbestos Justice include ACE-USA, Argonaut, Chubb, CNA, Firemans Fund, General Cologne Re, Great American, Hartford, Liberty Mutual, and St. Paul.

The high court is expected to hear the case during its 2002-2003 term.

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, July 1, 2002. Copyright 2002 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.