Transportation 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 Courts 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&Ws 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&Ws 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 [carriers] 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 jurys damage part of the human overhead of doing business from determinations addressed the fear-of-cancer employees to their employers, FELA and its damages. 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. defendants 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 todays 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&Ws 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 email@example.com result from outside causes. The Court disagreed, BRENDON P. FOWLER reading the language that a railroad is liable in 202.778.9237 firstname.lastname@example.org damages so long as the injury was caused in whole or in part by its negligence to deny N&Ws 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 email@example.com Harrisburg Carleton O. Strouss 717.231.4503 firstname.lastname@example.org FELA, an employee who suffers an injury caused in Pittsburgh Theodore A. McConnell 412.355.6566 email@example.com whole or in part by a railroads negligence may Stephen M. Olson 412.355.6496 firstname.lastname@example.org recover his or her full damages from the railroad, San Francisco Robert J. Sherry 415.249.1032 email@example.com regardless of whether the injury was also caused in Washington Edward J. Fishman 202.778.9456 firstname.lastname@example.org part by the actions of a third party. Id. (internal Kevin M. Sheys 202.778.9290 email@example.com ® Kirkpatrick & Lockhart LLP Challenge us. ® www.kl.com BOSTON n DALLAS n HARRISBURG n LOS ANGELES n MIAMI n NEWARK n NEW YORK n PITTSBURGH n SAN FRANCISCO n WASHINGTON ............................................................................................................................................................ This publication/newsletter is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. © 2003 KIRKPATRICK & LOCKHART LLP. ALL RIGHTS RESERVED.
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