Norfolk & Western R. Co. v. Ayers, 538 U.S. 135, 19 (2003)

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Cite as: 538 U. S. 135 (2003)

Opinion of the Court

claimants may bring a second action if cancer develops, Norfolk and the Government argue, cancer-related damages are unwarranted in their asbestosis suit. Tr. of Oral Arg. 17-18; Reply Brief 5. The question, as the Government frames it, is not whether the asbestosis claimants can recover for fear of cancer, but when. Brief for United States as Amicus Curiae 15. The principal dissent sounds a similar theme. Post, at 174 ("a person with asbestosis will not be without a remedy for pain and suffering caused by cancer").

But the asbestosis claimants did not seek, and the trial court did not allow, discrete damages for their increased risk of future cancer. App. 573 ("[Y]ou cannot award damages to plaintiffs for cancer or for any increased risk of cancer."); see supra, at 143. Instead, the claimants 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 the fear experienced by an asbestosis sufferer who never gets cancer. For such a person, the question is whether, not when, he may recover for his fear.

Even if the question is whether, not simply when, an asbestosis sufferer may recover for cancer fear, Norfolk has another string in its bow. To be compensable as pain and suffering, Norfolk maintains, a mental or emotional harm must have been "directly brought about by a physical injury." Brief for Petitioner 15 (emphasis deleted; internal quotation marks omitted) (quoting Gottshall, 512 U. S., at 544). Because asbestosis itself, as distinguished from asbestos expotermined, properly balanced a defendant's interest in repose and a plaintiff's interest in recovering adequate compensation for negligently inflicted injuries. See, e. g., Wilson, 684 F. 2d, at 119. There is no inevitable conflict between the "separate disease rule" and recovery of cancer fear damages by asbestosis claimants. The rule simply allows recovery for successive diseases and would necessarily exclude only double recovery for the same element of damages.

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