(The Return of) Ignatz, by Sam Heldman

Wednesday, October 30, 2002

Supreme Court

First case up for Wed 11/6 is Norfolk & Western R. Co. v. Ayers; there's no published lower court opinion to link. It's an FELA case, which means that it arises under the Federal Employers' Liability Act, which provides that railroad employers are liable for injuries that they inflict negligently (or worse) on their employees. The injuries here were caused by workplace exposure to asbestos. There are two questions presented: (1) whether the jury should have been allowed to award damages to the plaintiffs on account of their fear that, already suffering from asbestosis, they might develop asbestos-related cancer in the future (the jury was allowed to, and did, award such damages, but the railroad claims that there was not enough corroborating evidence of any real emotional distress on that account); and (2) whether the jury should have been instructed to apportion responsibility between the railroad and other culpable entities that were not parties to the case, and therefore should have awarded damages against the railroad only according to the percentage of its fault -- or whether the railroad was properly held liable for all of the plaintiffs' asbestos-related injuries because the railroad was one of the responsible parties.

The somewhat interesting thing about this case is that it presents one of those relatively rare contexts in which the U.S. Supreme Court is unabashedly acting as a maker of common law. In most cases, only state courts get to do that; and the Supreme Court, in most cases, is supposed to pretend that it's only interpreting a statute or the constitution, not making law. But here, the Supreme Court gets to unashamedly say what the Justices think would be the "best" rule to adopt. For a look at how they answered somewhat related questions in an FELA case a few years ago (in favor of the railroad), see Metro North v. Buckley (1997).

For more discussion of the case, see this article from law.com. And read this amicus brief from Trial Lawyers for Public Justice, which to my eye is very convincing in arguing that there is longstanding support in traditional tort caselaw for the recoverability of fear-of-cancer damages.

I'll skip to the chase, and again you can call me a cynic all you want; but based on reading Buckley, and based on what I think I know about the Court's majority's general views on asbestos liability, trial lawyers, etc., I'm betting that the Court will rule for the RR on at least one of these questions presented (likely both) and therefore REVERSE.

posted by sam 6:10 AM 0 comments


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