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
ruling in Norfolk & Western Railway Co. v. Ayers,
538 U.S. ___ (2003) (“Ayers”). The Court’s decision
addressed claims brought by six former Norfolk &
Western Railway Company (“N&W”) employees
under the Federal Employers’ Liability Act (“FELA”)
to recover damages for asbestosis, a non-cancerous
scarring of the lungs caused by inhalation of asbestos
fibers. The Court held 5-4 that the claimants could
recover damages under FELA for the fear of
developing cancer in the future. In addition, the
Court held unanimously that the claimants could
recover wholly from N&W, despite the existence of
non-railroad prior employers that also contributed to
the claimants’ injuries. N&W’s only recourse under
FELA for such liability would be a subsequent action
against the non-railroad prior employers for
indemnification or contribution.
Under FELA, 45 U.S.C. §§ 51-60, common carrier
railroads are “liable in damages to any person
suffering injury while … employed by [the] carrier in
[interstate] commerce” if the “injury or death
result[ed] in whole or in part from the [carrier’s]
negligence.” 45 U.S.C. § 51. Enacted by Congress
in 1908 with the humanitarian intent of “shift[ing]
part of the ‘human overhead’ of doing business from
employees to their employers,” FELA and its
amendments abolished a number of common law tort
defenses, including the fellow servant rule and the
assumption of risk defense, and rejected the doctrine
of contributory negligence in favor of comparative
negligence. See Consolidated Rail Corporation v.
Gottshall, 512 U.S. 532 (1994).
The six claimants in Ayers were all between 60 and
77 years old, and all but one had a long history of
tobacco use. Three had smoked for more than
50 years. All suffered from shortness of breath, but
only one testified that it affected his daily activities.
Two of the claimants also had significant exposure to
asbestos while working for other employers: one was
exposed to asbestos at N&W for three months, but
previously worked with asbestos as a pipefitter for
33 years, while the other was exposed to asbestos for
years while working in an auto-body shop prior to
joining N&W. The trial court instructed the jury that
asbestosis claimants could, upon demonstrating a
reasonable fear of cancer stemming from their
present condition, recover for fear as part of
asbestosis-related pain and suffering damages, and
denied N&W’s request to instruct the jury to
apportion damages between N&W and the other
employers that contributed to the claimants’ disease.
The jury returned total damage awards ranging from
$770,000 to $1.2 million for each claimant, three of
which were reduced for claimants’ comparative
negligence for smoking and for settlements with nonFELA entities. The final judgments amounted to
approximately $4.9 million, although the jury did not
indicate what portion of the jury’s damage
determinations addressed the fear-of-cancer
damages.
The Court in Gottshall restricted recovery under
FELA for stand-alone emotional claims to plaintiffs
who sustained a physical impact as the result of a
defendant’s negligent conduct or were placed in
immediate risk of physical harm by that conduct (in
Kirkpatrick & Lockhart LLP
other words those within the “zone of danger” of
physical impact). Id. at 547-548. More recently, in
Metro-North Commuter R. Co. v. Buckley, 521 U.S.
424 (1997), the Court applied the “zone of danger”
test to a FELA claim for exposure to asbestos and a
consequent fear of developing cancer, and rejected
the claim on the grounds that exposure alone was
insufficient to show the physical impact necessary in
the “zone of danger” test. Metro-North, 521 U.S. at
430. In Ayers, the Court followed Gottshall and
Metro-North by holding that a plaintiff that claims
emotional pain and suffering stemming from a
cognizable injury or disease may recover under
FELA, while the recovery of a plaintiff suffering
emotional pain and suffering absent injury is “sharply
circumscribed by the zone-of-danger test.” Ayers,
538 U.S. ___, at *9. Although the claimants did not
seek, nor did the trial court allow, discrete damages
for their increased risk of future cancer, and although
asbestosis itself does not cause cancer, the Court
agreed that the claimants’ asbestosis was an “injury”
and they could recover for their fear of future cancer
so long as the claimants demonstrated their fear is
genuine and serious. Id. at *19.
The Court also addressed N&W’s assertion that
damages should be apportioned between N&W and
the other employers that had contributed to the
claimants’ conditions. N&W argued that the
statutory language of FELA makes clear that
railroads are not liable for employee injuries that
result from outside causes. The Court disagreed,
reading the language that a railroad is “liable in
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
indemnification by liable third parties. Id. at *28
(emphasis added). As the Court stated, “[u]nder
FELA, an employee who suffers an injury caused in
whole or in part by a railroad’s negligence may
recover his or her full damages from the railroad,
regardless of whether the injury was also caused in
part by the actions of a third party.” Id. (internal
quotations omitted). The Court went so far as to
make what amounted to a plea for Congressional
intervention in the “elephantine mass of asbestos
cases” lodged in state and federal courts that “[defy]
customary judicial administration and [call] for
national legislation,” but indicated that courts “must
resist pleas of the kind N&W has made, essentially to
reconfigure established liability rules because they
do not serve to abate today’s asbestos litigation
crisis.” Id. at *29.
The Ayers decision is important in two respects.
First, it highlights the potentially expansive scope of
damage recovery under FELA. The Ayers claimants
were able to recover damages for, among other
things, the fear of possibly developing cancer in the
future due to non-cancerous scarring of their lungs
from asbestos exposure. Second, the decision
confirms that railroads may be subject to
disproportionate liability under FELA. Several of
the Ayers claimants were able to recover in whole
from N&W despite significant exposure to asbestos
under previous employers. Although N&W would be
able to seek indemnification or contribution from
those previous employers in a later suit, there is no
guarantee that suit would succeed, or what amount
would be recovered.
EDWARD J. FISHMAN
202.778.9456
efishman@kl.com
BRENDON P. FOWLER
202.778.9237
bfowler@kl.com
FOR FURTHER INFORMATION, please consult one of the lawyers
listed below:
Boston
Harrisburg
Pittsburgh
Jeffrey S. King
Carleton O. Strouss
Theodore A. McConnell
Stephen M. Olson
San Francisco Robert J. Sherry
Washington Edward J. Fishman
Kevin M. Sheys
617.261.3179
717.231.4503
412.355.6566
412.355.6496
415.249.1032
202.778.9456
202.778.9290
jking@kl.com
cstrouss@kl.com
tmcconnell@kl.com
solson@kl.com
rsherry@kl.com
efishman@kl.com
ksheys@kl.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.