Should jury awards cover fear of disease?

The Supreme Court hears an asbestos case Wednesday that could set the bounds for some workplace litigation.

American tort law is anchored on the fundamental principle that anyone who causes an injury through a wrongful act should be compelled to pay compensation. For example, workers forced to endure dangerous or unhealthy conditions are entitled to payments from their employer when those conditions cause sickness or death.

But what should happen when the complained-of injury is purely emotional – such as the fear of contracting cancer?

That is the question being taken up Wednesday by the US Supreme Court in a case that could set the bounds for future workplace litigation involving not only diseases that are physically manifested, but also the fearful mental state of employees exposed to certain workplace dangers.

In approaching the case, legal experts say, the justices must be mindful of the potential devastating effects to certain industries of aggressive tactics by plaintiff lawyers seeking large jury awards. On the other side, experts say, the high court must also be aware that workers subjected to unhealthy conditions on the job are entitled to compensation for the destructive impact on their lives.

Lawyers, health professionals, insurance executives, labor leaders, industry officials, and state attorneys general are all watching closely to see how the justices strike that balance.

At issue is the case of six retired employees of the Norfolk & Western Railway Company in West Virginia who have been medically diagnosed with a debilitating lung condition called asbestosis as a result of their workplace exposure to asbestos dust. None of the men has been diagnosed with cancer, but they argued in court that they should nonetheless be compensated for their ongoing fear that some day they might contract cancer.

A jury awarded the men $4.8 million in compensation for those fears. The West Virginia Supreme Court upheld the award.

The nation's highest court is considering whether the West Virginia courts were correct in sustaining such an award for fear of a disease for which there is no evidence of physical suffering and no certainty that the disease will ever appear. The Supreme Court has jurisdiction because the award was made under a federal law that applies to railroad workers seeking compensation for workplace injuries.

The case arises as part of an ever-widening web of litigation surrounding the manufacture and use of asbestos. The fire-resistant material was widely used as insulation in buildings and machines for years before medical researchers concluded it posed a severe risk to health. Resulting litigation has forced massive compensation payments that have bankrupted most asbestos manufacturers.

Trial lawyers are now focusing on workers at companies such as Norfolk & Western that used asbestos in operations.

"Plaintiff's lawyers stoke the passions of jurors with arguments regarding [an exposed worker's] risk of deadly cancers," says Carter Phillips in his brief to the court on behalf of Norfolk and Western. "The common results are massive verdicts for relatively healthy plaintiffs."

Mr. Phillips says that all but one of the six workers were heavy smokers, consuming one to two packs of cigarettes per day for 10 to 50 years. It is unclear to what extent the men's lung problems are a result of asbestos exposure or smoking or other factors, Phillips says in his brief.

Richard Lazarus, a Georgetown University Law professor arguing the case for the six workers, says his clients' lung conditions were accurately diagnosed. "They each suffer from a serious, debilitating physical disease – asbestosis," he writes in his brief. "Those who suffer from asbestosis are significantly more likely to develop these cancers than those who do not."

Mr. Lazarus's position is supported by a friend-of-the-court brief filed by the American Public Health Association. "It is virtually beyond dispute that exposure to asbestos at levels sufficient to cause asbestosis also causes significant increased risks of lung cancer," the brief says.

In broad terms, the court faces a major policy decision about whether to limit the potential pool of asbestos litigants to those suffering from physically manifested diseases or to broaden it by allowing claims from those fearing future diseases.

"There isn't enough money to pay everybody," says Mark Behrens of the American Tort Reform Association. "There is a potential for lawsuits by millions of people. Most of them are not sick or have very minimal impairment," he says. "We believe it is important to give priority to the people who need the money the most, those who actually do develop cancer."

Brent Rosenthal, a Dallas lawyer who filed a brief on behalf of a group called Trial Lawyers for Public Justice, says the law is clear that the railroad workers deserve compensation for their fears. "In a case involving bodily injury [asbestosis], a plaintiff is entitled to recover all physical and mental damages, including mental anguish caused by the fear of future harm arising from the defendant's conduct," he says in his brief. "Such damages, including fear of cancer damages, have been recognized by courts throughout the country for decades."

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