OCTOBER TERM, 2002
certiorari to the circuit court of kanawha county, west virginia
No. 01-963. Argued November 6, 2002—Decided March 10, 2003
Alleging that petitioner Norfolk & Western Railway Company (Norfolk) had negligently exposed them to asbestos and thereby caused them to contract the occupational disease asbestosis, respondents, six former Norfolk employees (asbestosis claimants), brought this suit in a West Virginia state court under the Federal Employers' Liability Act (FELA or Act). Section 1 of the FELA provides: "Every common carrier by railroad while engaging in [interstate commerce], shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury . . . resulting in whole or in part from the [carrier's] negligence." As an element of their damages, the asbestosis claimants sought recovery for mental anguish based on their fear of developing cancer. The trial court instructed the jury that a plaintiff who demonstrated a reasonable fear of cancer related to proven physical injury from asbestos was entitled to compensation for that fear as a part of the damages awardable for pain and suffering. The court also instructed the jury not to reduce recoveries because of nonrailroad exposures to asbestos, so long as the jury found that Norfolk was negligent and that dust exposures at Norfolk contributed, however slightly, to each plaintiff's injuries. The court rejected Norfolk's proposed instructions, which would have (1) ruled out damages for fear of cancer unless the claimant proved both an actual likelihood of developing cancer and physical manifestations of the alleged fear, and (2) required the jury to apportion damages between Norfolk and other employers alleged to have contributed to an asbestosis claimant's disease. The jury returned damages awards for each claimant. The Supreme Court of Appeals of West Virginia denied discretionary review.
1. 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. Pp. 145-159.
(a) The trial judge correctly stated the law when he charged the jury that an asbestosis claimant, upon demonstrating a reasonable fear of cancer stemming from his present disease, could recover for that fear
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