Norfolk & Western R. Co. v. Ayers, 538 U.S. 135, 2 (2003)

Page:   Index   Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  Next

136

NORFOLK & WESTERN R. CO. v. AYERS

Syllabus

as part of asbestosis-related pain and suffering damages. In so ruling, this Court follows the path marked by its decisions in Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, and Metro-North Commuter R. Co. v. Buckley, 521 U. S. 424. Gottshall and Metro-North describe two categories of claims for emotional distress damages: Stand-alone emotional distress claims not provoked by any physical injury, for which recovery is sharply circumscribed by the common-law zone-of-danger test; and emotional distress claims brought on by a physical injury, for which pain and suffering recovery is permitted. This case is properly placed in the emotional distress stemming from a physical injury category. The parties agree that the claimants suffer from asbestosis, a cognizable injury under the FELA. As Metro-North plainly indicates, when fear of cancer "accompanies a physical injury," pain and suffering damages may include compensation for that fear. E. g., 521 U. S., at 430. The Court adheres to the clear line its recent decisions delineate. Pp. 145-148.

(b) Unlike stand-alone claims for negligently inflicted emotional distress, claims for pain and suffering associated with a physical injury are traditionally compensable. By 1908, when the FELA was enacted, the common law had evolved to encompass apprehension of future harm as a component of pain and suffering. In recent years, of the many courts that have ruled on the question presented here, a clear majority sustain recovery. Arguing against this trend, Norfolk and its amici assert that the asbestosis claimants' alleged cancer fears are too remote from asbestosis to warrant inclusion in their pain and suffering awards. Amicus United States refers to the "separate disease rule," under which most courts have held that the statute of limitations runs separately for each asbestos-related disease. Because the asbestosis claimants may bring a second action if cancer develops, the Government argues, cancer-related damages are unwarranted here. The question, as the Government frames it, is not whether the asbestosis claimants can recover for fear of cancer, but when. But those claimants did not seek, and the trial court did not allow, discrete damages for their increased risk of future cancer. Instead, they sought damages for their current injury, which, they allege, encompasses a present fear that the toxic exposure causative of asbestosis may later result in cancer. The Government's "when, not whether," argument has a large gap; it excludes recovery for any fear experienced by an asbestosis sufferer who never gets cancer. To be compensable as pain and suffering, Norfolk further urges, a mental or emotional harm must have been "directly brought about by a physical injury." This argument elides over a key connection between Norfolk's conduct and the damages the asbestosis claimants allege as part of their pain and suffering: Once found liable for any bodily harm, a negligent

Page:   Index   Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  Next

Last modified: October 4, 2007