Norfolk & Western Railway Co. v. Ayers

538 U.S. 135, 123 S. Ct. 1210, 155 L. Ed. 2d 261, 16 Fla. L. Weekly Fed. S 151, 71 U.S.L.W. 4197, 19 I.E.R. Cas. (BNA) 1217, 33 Envtl. L. Rep. (Envtl. Law Inst.) 20155, 2003 A.M.C. 609, 2003 Cal. Daily Op. Serv. 2136, 2003 U.S. LEXIS 1956
CourtSupreme Court of the United States
DecidedMarch 10, 2003
Docket01-963
StatusPublished
Cited by201 cases

This text of 538 U.S. 135 (Norfolk & Western Railway Co. v. Ayers) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norfolk & Western Railway Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210, 155 L. Ed. 2d 261, 16 Fla. L. Weekly Fed. S 151, 71 U.S.L.W. 4197, 19 I.E.R. Cas. (BNA) 1217, 33 Envtl. L. Rep. (Envtl. Law Inst.) 20155, 2003 A.M.C. 609, 2003 Cal. Daily Op. Serv. 2136, 2003 U.S. LEXIS 1956 (2003).

Opinions

[140]*140Justice Ginsburg

delivered the opinion of the Court.

The Federal Employers’ Liability Act (FELA or Act), 35 Stat. 65, as amended, 45 U. S. C. §§51-60, makes common carrier railroads liable in damages to employees who suffer work-related injuries caused “in whole or in part” by the railroad’s negligence. This case, brought against Norfolk & Western Railway Company (Norfolk) by six former employees now suffering from asbestosis (asbestosis claimants), presents two issues involving the FELA’s application. The first issue concerns the damages recoverable by a railroad worker who suffers from the disease asbestosis: When the cause of that disease, in whole or in part, was exposure to asbestos while on the job, may the worker’s recovery for his asbestosis-related “pain and suffering” include damages for fear of developing cancer?

The second issue concerns the extent of the railroad’s liability when third parties not before the court — for example, prior or subsequent employers or asbestos manufacturers or suppliers — may have contributed to the worker’s injury. Is the railroad answerable in full to the employee, so that pursuit of contribution or indemnity from other potentially liable enterprises is the railroad’s sole damages-award-sharing recourse? Or is the railroad initially entitled to an apportionment among injury-causing tortfeasors, i. e., a division of [141]*141damages limiting the railroad’s liability to the injured employee to a proportionate share?

In resolving the first issue, we follow the line drawn by Metro-North Commuter R. Co. v. Buckley, 521 U. S. 424 (1997), a decision that relied on and complemented Consolidated Rail Corporation v. Gottshall, 512 U. S. 532 (1994). In Metro-North, we held that emotional distress damages may not be recovered under the FELA by disease-free asbestos-exposed workers; in contrast, we observed, workers who “suffe[r] from a disease” (here, asbestosis) may “recover for related negligently caused emotional distress.” 521 U. S., at 432. We decline to blur, blend, or reconfigure our FELA jurisprudence in the manner urged by the petitioner; instead, we adhere to the clear line our recent decisions delineate. Accordingly, we hold that mental anguish damages resulting from the fear of developing cancer may be recovered under the FELA by a railroad worker suffering from the actionable injury asbestosis caused by work-related exposure to asbestos.

As to the second issue, we similarly decline to write new law by requiring an initial apportionment of damages among potential tortfeasors. The FELA’s express terms, reinforced by consistent judicial applications of the Act, allow a worker to recover his entire damages from a railroad whose negligence jointly caused an injury (here, the chronic disease asbestosis), thus placing on the railroad the burden of seeking contribution from other tortfeasors.

HH

The asbestosis claimants (plaintiffs below, respondents here) brought this FELA action against their former employer, Norfolk, in the Circuit Court of Kanawha County, West Virginia.1 Norfolk, they alleged, negligently exposed them to asbestos, which caused them to contract the occupa[142]*142tional disease asbestosis. App. 17-20.2 As an element of their occupational disease damages, the asbestosis claimants sought recovery for mental anguish based on their fear of developing cancer. Id., at 21.

Before trial, Norfolk moved to exclude all evidence referring to cancer as irrelevant and prejudicial. Id., at 52-53. The trial court denied the motion, Tr. 251 (Apr. 14, 1998), and the asbestosis claimants placed before the jury extensive evidence relating to cancer, including expert testimony that asbestosis sufferers with smoking histories have a significantly increased risk of developing lung cancer.3 (Of the six asbestosis claimants, five had smoking histories, and two persisted in smoking even after their asbestosis diagnosis. App. 265, 336-337.) Asbestosis sufferers — workers whose exposure to asbestos has manifested itself in a chronic disease — the jury also heard, have a significant (one in ten) risk of dying of mesothelioma, a fatal cancer of the lining of the lung or abdominal cavity. Id., at 92-97 (asbestosis claimants’ expert); id., at 472 (Norfolk’s expert) (nine or ten percent).4

[143]*143Concluding that no asbestosis claimant had shown he was reasonably certain to develop cancer, the trial court instructed the jury that damages could not be awarded to any claimant “for cancer or any increased risk of cancer.” Id., at 573. The testimony about cancer, the court explained, was relevant “only to judge the genuineness of plaintiffs’ claims of fear of developing cancer.” Ibid. On that score, the court charged:

“[A]ny plaintiff who has demonstrated that he has developed a reasonable fear of cancer that is related to proven physical injury from asbestos is entitled to be compensated for that fear as a part of the damages you may award for pain and suffering.” Ibid.

In so instructing the jury, the court rejected Norfolk’s proposed instruction, which would have ruled out damages for an asbestosis sufferer’s fear of cancer, unless the claimant proved both “an actual likelihood of developing cancer” and “physical manifestations” of the alleged fear. See id., at 548.

The trial court also refused Norfolk’s request to instruct the jury to apportion damages between Norfolk and other employers alleged to have contributed to an asbestosis claimant’s disease. Id., at 539.5 Two of the claimants had significant exposure to asbestos while working for other employers: Carl Butler, exposed to asbestos at Norfolk for only three months, worked with asbestos elsewhere as a pipefitter for 33 years, id., at 250, 252, 375; Freeman Ayers was exposed to asbestos for several years while working at auto-[144]*144body shops, id., at 274-275. In awarding damages, the trial court charged, the jury was “not to make a deduction for the contribution of non-railroad exposures,” so long as it found that Norfolk was negligent and that “dust exposures at [Norfolk] contributed, however slightly, to the plaintiff’s injuries.” Id., at 570.6

The jury returned total damages awards for each asbestosis claimant, ranging from $770,000 to $1.2 million. Id., at 578-589. After reduction for three claimants’ comparative negligence from smoking and for settlements with non-FELA entities, the final judgments amounted to approximately $4.9 million. Id., at 590-613. It is impossible to look behind those judgments to determine the amount the jury awarded for any particular element of damages. Norfolk, although it could have done so, see W. Va. Rule Civ. Proc. 49 (1998), did not endeavor to clarify the jury’s damages determinations; it did not seek a special verdict or interrogatory calling upon the jury to report, separately, its assessments, if any, for fear-of-eancer damages.

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Bluebook (online)
538 U.S. 135, 123 S. Ct. 1210, 155 L. Ed. 2d 261, 16 Fla. L. Weekly Fed. S 151, 71 U.S.L.W. 4197, 19 I.E.R. Cas. (BNA) 1217, 33 Envtl. L. Rep. (Envtl. Law Inst.) 20155, 2003 A.M.C. 609, 2003 Cal. Daily Op. Serv. 2136, 2003 U.S. LEXIS 1956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norfolk-western-railway-co-v-ayers-scotus-2003.