- The Washington Times - Monday, March 10, 2003

WASHINGTON, March 10 (UPI) — The Supreme Court ruled 5-4 Monday that a railroad worker suffering from an asbestos-related injury can sue an employer for mental anguish under federal law.

The mental anguish would consist of fear or anxiety that the asbestos injury would turn into cancer.

In the same case, the court also ruled unanimously that a worker can collect full damages from a railroad for asbestos injury, even though others may have contributed.

The case was brought by six former employees of the Norfolk & Northwestern Railway in Kanawha County, W.Va.

They claimed that the railroad negligently exposed them to asbestos, which caused them to contract asbestosis, a respiratory disease.

A state judge — plaintiffs are allowed to file either in state or federal court under the Federal Employers Liability Act — refused Norfolk's request to instruct the jury on two positions:

To rule out damages for fear of cancer unless a plaintiff shows an actual likelihood of developing cancer; and to apportion damages between Norfolk and other employers alleged to have contributed to the asbestosis.

The jury's final judgment amounted to just under $5 million for the six workers.

The West Virginia Supreme Court denied review. Monday, the Supreme Court of the United States upheld the state courts.

On the mental anguish question, Justice Ruth Bader Ginsburg cited prior Supreme Court decisions.

"A worker exposed to asbestos who remains symptom free, we recently held, may not recover damages for apprehending that he may someday suffer an asbestos-induced disease."

However, the issue changes when "the fear or anxiety about future harm (stems) from an already manifested physical injury or illness."

" … We hold that a railroad worker suffering from asbestosis can recover for the heightened anxiety he experiences because of his vulnerability to a more dread disease," such as cancer, Ginsburg said.

The plaintiff would still have to prove "that the asserted fear is genuine and serious."

Chief Justice William Rehnquist and Justices Anthony Kennedy, Sandra Day O'Connor and Stephen Breyer dissented or signed on to dissents against the mental anguish decision.

All of the justices agreed with Ginsburg's opinion that full recovery of damages can be obtained from a railroad for the asbestos injury, even when other companies may have contributed to the condition.

It is then up to the railroad, Ginsburg said, to identify other responsible parties and try to get some compensation from them.

(No. 01-963, Norfolk & Northwestern Railway vs. Ayers et al.)

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