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Cancer Fear Damages Allowed By Supreme Court

5-4 ruling in an asbestos case could have implications for a broad range of litigation.

WASHINGTON -- Corporate America's asbestos liability problem grew worse Monday, when the Supreme Court ruled that a worker's fear of developing cancer can be the basis for winning extra damages from his employer.

The ruling came in a lawsuit against a railroad company, but the logic of the court's decision will extend broadly, beyond even asbestos cases, business experts said.

"This is not a good result for us," said Stephen Bokat, general counsel for the U.S. Chamber of Commerce. "The fear of cancer has arisen in lots of cases involving not just asbestos but other toxic substances. We see this as opening a huge door with a potential for very large damage awards."

But a Dallas lawyer representing asbestos victims downplayed the decision. The notion that fear of cancer is enough for a worker suffering from asbestos exposure to win additional money "has become fairly well accepted in the state courts," Brent Rosenthal said.

Citing a recent study by the Rand Institute for Civil Justice in Santa Monica, the high court on Monday said that asbestos litigation has consumed about $50 billion already and that the total cost may exceed $200 billion.

The justices said Congress should pass new laws to cope with the "elephantine mass of asbestos cases." In the meantime, the court said, it will not change the ordinary rules of liability to shield employers from paying injured workers.

The ruling upheld jury verdicts won by six retired railroad workers in West Virginia who were exposed to asbestos on the job and suffered scarring of their lungs. They said they feared they would die of cancer.

Over the objections of the railroad's lawyer, the trial judge had told the jurors they could award extra money to those workers who "developed a reasonable fear of cancer that is related to a proven physical injury from asbestos."

All six had asbestosis, a noncancerous scarring of the lungs. The jury handed down awards of $770,000 to $1.2 million but didn't say how much of the total was based on the plaintiffs' fears of contracting cancer.

Six years ago, the high court ruled that "disease free" workers who were exposed to asbestos cannot win damages simply for their fear and emotional distress.

Last year, corporate lawyers were cheered when the Supreme Court agreed to hear the railroad's appeal in the West Virginia case. The U.S. Chamber of Commerce, the American Insurance Assn., the Coalition for Asbestos Justice and the Bush administration joined the case on the side of the railroad. They urged the court to rule broadly that "emotional distress" cannot be the basis for a damage verdict, even for workers whose lungs were scarred by asbestos.

Instead, a narrow majority ruled Monday that under traditional principles of liability, persons who suffer a true injury or disease can seek extra compensation for "future harm genuinely feared."

Workers like those who had scarred lungs may recover "mental anguish damages resulting from fear of developing cancer," Justice Ruth Bader Ginsburg said in Norfolk & Western Railroad vs. Ayers.

"Courts must resist pleas ... to reconfigure the established liability rules because they do not serve to abate today's asbestos litigation crisis," Ginsburg added. Her fellow liberals John Paul Stevens and David H. Souter joined Ginsburg, as did conservatives Antonin Scalia and Clarence Thomas.

Although the decision interpreted the federal law governing railroads, the court's statement of liability principles will have a broad effect, lawyers said.

"This case will be widely cited in the state courts," Bokat said.

DAVID G. SAVAGE Los Angeles Times
March 11, 2003

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