- The Washington Times - Tuesday, March 11, 2003

The Supreme Court ruled yesterday that workers sickened after asbestos exposure may sue employers simply because they fear their disease will become lung cancer.
The ruling was said to be the first high-court acceptance of compensation over fear of an event that doesn't necessarily happen, unlike "pain and suffering" claims for airplane passengers who are assumed to have experienced fright in the minutes after they learn their plane will crash.
The 5-4 decision written by Justice Ruth Bader Ginsburg cleared the way for six retired workers who have asbestosis and can document fears of cancer to collect $5.8 million from Norfolk & Western Railway for their anguish.
"It is incumbent upon such a complainant, however, to prove that his alleged fear is genuine and serious," Justice Ginsburg wrote in a decision that ended by calling on Congress to enact nationwide laws to deal with "the elephantine mass of asbestos cases." The court issued similar advice in a 1999 asbestos decision.
Joining Justice Ginsburg's majority opinion yesterday were Justices John Paul Stevens, Antonin Scalia, David H. Souter and Clarence Thomas.
The dissent by Justice Anthony M. Kennedy joined by Chief Justice William H. Rehnquist, Justices Sandra Day O'Connor and Stephen G. Breyer said the court ducked responsibility by rewarding speculative lawsuits that use funds needed by those who actually contract cancer.
"Review for genuineness [of fear] alone does little or nothing to prevent capricious outcomes," they said, arguing the court should instead adopt a rule "that reconciles the need to provide compensation for deserving claimants with the concerns that speculative damage awards will exhaust the resources available."
The dissenters said asbestos lawsuits have driven into bankruptcy 57 companies that employed hundreds of thousands of people.
"If asbestosis causes you to fear for your ability to breathe, that's real and the same as the airplane fear," said Carter Phillips, the railroad's Washington attorney. "Your fear here is of something that's not directly traceable to the injury of being exposed to asbestos."
He said many states had adopted the principle yesterday's decision approved.
"In that sense it's not like a floodgate's been opened by this decision. It's a gate that was already in some ways open. The court just missed an opportunity to close it," Mr. Phillips said.
Victor Schwartz, a lawyer for an association of insurers called the Coalition for Asbestos Justice, said it was important the court restricted compensation to persons actually sick with asbestosis, and did not include those "with pleural thickening classified as asymptomatic."
Mr. Schwartz echoed the court's call for Congress to protect industry from the estimated $275 billion in liability created by about 600,000 asbestos-related lawsuits already in the courts.
"I think everybody's recognized that for a long time, except for Congress," Mr. Phillips said.
In other action yesterday, the court:
Approved a request by Solicitor General Theodore Olson to appear at the argument hearing on April 1 as a friend of the court, and present the Bush administration's views on use of race preferences at the University of Michigan.
Agreed to decide next term if its landmark Miranda ruling on the right to have a lawyer and remain silent limits when police must notify criminal suspects of their rights. John Fellers waived his rights and confessed at the jail after he was indicted, but he claims that statement was tainted by questioning at his home by detectives who arrested him.
Refused without comment to consider paper maker Boise Cascade's effort to collect $295,102 for a temporary logging ban imposed to protect habitat of the northern spotted owl, a threatened species.
Agreed to decide in a Texas Medicaid case whether the Constitution allows states to strike deals that end class-action lawsuits and later claim they are immune to complaints when they do not meet their end of the bargain.

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