152
Opinion of the Court
Arguing against the trend in the lower courts, Norfolk and its supporting amici assert that the asbestosis claimants' alleged cancer fears are too remote from asbestosis to warrant inclusion in their pain and suffering awards. In support of this contention, the United States, one of Norfolk's amici, refers to the "separate disease rule," under which most courts have held that the statute of limitations runs separately for each asbestos-related disease. Brief for United States as Amicus Curiae 12. See, e. g., Wilson v. Johns-Manville Sales Corp., 684 F. 2d 111, 120-121 (CADC 1982); Pustejovsky v. Rapid-American Corp., 35 S. W. 3d 643, 649, n. 3 (Tex. 2000) (listing cases).12 Because the asbestosis
qualify as a physical injury); Wolff v. A-One Oil, Inc., 216 App. Div. 2d 291, 292, 627 N. Y. S. 2d 788, 789-790 (1995) (fear-of-cancer recovery available if a plaintiff has asbestos-induced disease); Capital Holding Corp. v. Bailey, 873 S. W. 2d 187, 194 (Ky. 1994) (recovery "if first the plaintiff can cross the threshold of establishing a harmful change has resulted from exposure to the potentially cancer producing agent"); Mauro v. Raymark Industries, Inc., 116 N. J. 126, 137, 561 A. 2d 257, 263 (1989) (claim for fear of future disease held "clearly cognizable where, as here, plaintiff's exposure to asbestos has resulted in physical injury"); Lavelle v. Owens-Corning Fiberglas Corp., 30 Ohio Misc. 2d 11, 14, 507 N. E. 2d 476, 480-481 (Ct. Common Pleas, Cuyahoga Cty. 1987) (asbestosis-afflicted plaintiff could recover for fear of cancer either as pain and suffering damages associated with asbestosis, or as compensable stand-alone claim of negligent infliction of emotional distress).
Contrary precedent is slim in comparison to the heavy weight of authority. See Fulmore v. CSX Transp., Inc., 252 Ga. App. 884, 897, 557 S. E. 2d 64, 75 (2001) (denying fear-of-cancer damages to asbestosis claimant based in part on misplaced reliance on Metro-North Commuter R. Co. v. Buckley, 521 U. S. 424 (1997)); Cleveland v. Johns-Manville Corp., 547 Pa. 402, 410, 690 A. 2d 1146, 1150 (1997) (plaintiff asserting noncancer asbestos claims may not recover any cancer-related damages); Watson v. Norfolk & Western R. Co., 30 Ohio App. 3d 201, 203-204, 507 N. E. 2d 468, 471-472 (1987) (recovery permissible under the FELA only on showing that plaintiff will probably develop cancer from asbestos exposure).
12 The rule evolved as a response to the special problem posed by latent-disease cases. Under the single-action rule, a plaintiff who recovered for asbestosis would then be precluded from bringing suit for later developed mesothelioma. Allowing separate complaints for each disease, courts de-
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