4-03 Transp_Workers Exposed to Asbestos by yaohongm


APRIL 2003

The Supreme Court Holds Workers Exposed to Asbestos
by Railroad and Other Employers May Recover Full
Damages Award for Fear of Developing Cancer
From Railroad Employer Under FELA
On March 10, 2003, the Supreme Court issued its          The six claimants in Ayers were all between 60 and
ruling in Norfolk & Western Railway Co. v. Ayers,        77 years old, and all but one had a long history of
538 U.S. ___ (2003) (“Ayers”). The Court’s decision      tobacco use. Three had smoked for more than
addressed claims brought by six former Norfolk &         50 years. All suffered from shortness of breath, but
Western Railway Company (“N&W”) employees                only one testified that it affected his daily activities.
under the Federal Employers’ Liability Act (“FELA”)      Two of the claimants also had significant exposure to
to recover damages for asbestosis, a non-cancerous       asbestos while working for other employers: one was
scarring of the lungs caused by inhalation of asbestos   exposed to asbestos at N&W for three months, but
fibers. The Court held 5-4 that the claimants could      previously worked with asbestos as a pipefitter for
recover damages under FELA for the fear of               33 years, while the other was exposed to asbestos for
developing cancer in the future. In addition, the        years while working in an auto-body shop prior to
Court held unanimously that the claimants could          joining N&W. The trial court instructed the jury that
recover wholly from N&W, despite the existence of        asbestosis claimants could, upon demonstrating a
non-railroad prior employers that also contributed to    reasonable fear of cancer stemming from their
the claimants’ injuries. N&W’s only recourse under       present condition, recover for fear as part of
FELA for such liability would be a subsequent action     asbestosis-related pain and suffering damages, and
against the non-railroad prior employers for             denied N&W’s request to instruct the jury to
indemnification or contribution.                         apportion damages between N&W and the other
                                                         employers that contributed to the claimants’ disease.
Under FELA, 45 U.S.C. §§ 51-60, common carrier
                                                         The jury returned total damage awards ranging from
railroads are “liable in damages to any person
                                                         $770,000 to $1.2 million for each claimant, three of
suffering injury while … employed by [the] carrier in
                                                         which were reduced for claimants’ comparative
[interstate] commerce” if the “injury or death
                                                         negligence for smoking and for settlements with non-
result[ed] in whole or in part from the [carrier’s]
                                                         FELA entities. The final judgments amounted to
negligence.” 45 U.S.C. § 51. Enacted by Congress
                                                         approximately $4.9 million, although the jury did not
in 1908 with the humanitarian intent of “shift[ing]
                                                         indicate what portion of the jury’s damage
part of the ‘human overhead’ of doing business from
                                                         determinations addressed the fear-of-cancer
employees to their employers,” FELA and its
amendments abolished a number of common law tort
defenses, including the fellow servant rule and the      The Court in Gottshall restricted recovery under
assumption of risk defense, and rejected the doctrine    FELA for stand-alone emotional claims to plaintiffs
of contributory negligence in favor of comparative       who sustained a physical impact as the result of a
negligence. See Consolidated Rail Corporation v.         defendant’s negligent conduct or were placed in
Gottshall, 512 U.S. 532 (1994).                          immediate risk of physical harm by that conduct (in

                                                         Kirkpatrick & Lockhart LLP
   other words those within the “zone of danger” of                            quotations omitted). The Court went so far as to
   physical impact). Id. at 547-548. More recently, in                         make what amounted to a plea for Congressional
   Metro-North Commuter R. Co. v. Buckley, 521 U.S.                            intervention in the “elephantine mass of asbestos
   424 (1997), the Court applied the “zone of danger”                          cases” lodged in state and federal courts that “[defy]
   test to a FELA claim for exposure to asbestos and a                         customary judicial administration and [call] for
   consequent fear of developing cancer, and rejected                          national legislation,” but indicated that courts “must
   the claim on the grounds that exposure alone was                            resist pleas of the kind N&W has made, essentially to
   insufficient to show the physical impact necessary in                       reconfigure established liability rules because they
   the “zone of danger” test. Metro-North, 521 U.S. at                         do not serve to abate today’s asbestos litigation
   430. In Ayers, the Court followed Gottshall and                             crisis.” Id. at *29.
   Metro-North by holding that a plaintiff that claims
                                                                               The Ayers decision is important in two respects.
   emotional pain and suffering stemming from a
                                                                               First, it highlights the potentially expansive scope of
   cognizable injury or disease may recover under
                                                                               damage recovery under FELA. The Ayers claimants
   FELA, while the recovery of a plaintiff suffering
                                                                               were able to recover damages for, among other
   emotional pain and suffering absent injury is “sharply
                                                                               things, the fear of possibly developing cancer in the
   circumscribed by the zone-of-danger test.” Ayers,
                                                                               future due to non-cancerous scarring of their lungs
   538 U.S. ___, at *9. Although the claimants did not
                                                                               from asbestos exposure. Second, the decision
   seek, nor did the trial court allow, discrete damages
                                                                               confirms that railroads may be subject to
   for their increased risk of future cancer, and although
                                                                               disproportionate liability under FELA. Several of
   asbestosis itself does not cause cancer, the Court
                                                                               the Ayers claimants were able to recover in whole
   agreed that the claimants’ asbestosis was an “injury”
                                                                               from N&W despite significant exposure to asbestos
   and they could recover for their fear of future cancer
                                                                               under previous employers. Although N&W would be
   so long as the claimants demonstrated their fear is
                                                                               able to seek indemnification or contribution from
   genuine and serious. Id. at *19.
                                                                               those previous employers in a later suit, there is no
   The Court also addressed N&W’s assertion that                               guarantee that suit would succeed, or what amount
   damages should be apportioned between N&W and                               would be recovered.
   the other employers that had contributed to the
   claimants’ conditions. N&W argued that the                                                                                EDWARD J. FISHMAN
   statutory language of FELA makes clear that                                                                                      202.778.9456
   railroads are not liable for employee injuries that                                                                          efishman@kl.com
   result from outside causes. The Court disagreed,                                                                          BRENDON P. FOWLER
   reading the language that a railroad is “liable in                                                                               202.778.9237
   damages” so long as the injury was caused “in whole
   or in part” by its negligence to deny N&W’s desired
   apportionment and require that N&W bear the
   subsequent burden of seeking contribution or                                  FOR FURTHER INFORMATION, please consult one of the lawyers
   indemnification by liable third parties. Id. at *28                           listed below:
   (emphasis added). As the Court stated, “[u]nder                               Boston        Jeffrey S. King            617.261.3179   jking@kl.com
                                                                                 Harrisburg    Carleton O. Strouss        717.231.4503   cstrouss@kl.com
   FELA, an employee who suffers an injury caused in
                                                                                 Pittsburgh    Theodore A. McConnell      412.355.6566   tmcconnell@kl.com
   whole or in part by a railroad’s negligence may                                             Stephen M. Olson           412.355.6496   solson@kl.com
   recover his or her full damages from the railroad,                            San Francisco Robert J. Sherry           415.249.1032   rsherry@kl.com
   regardless of whether the injury was also caused in                           Washington Edward J. Fishman             202.778.9456   efishman@kl.com
   part by the actions of a third party.” Id. (internal                                        Kevin M. Sheys             202.778.9290   ksheys@kl.com


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