Norfolk & Western R. Co. v. Ayers, 538 U.S. 135, 23 (2003)

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

Opinion of the Court

The categorical approach endorsed in Metro-North serves to reduce the universe of potential claimants to numbers neither "unlimited" nor "unpredictable." Relevant here, and as Norfolk recognizes, of those exposed to asbestos, only a fraction will develop asbestosis. Brief for Petitioner 22, n. 16 (quoting In re Haw. Fed. Asbestos Cases, 734 F. Supp. 1563, 1570 (Haw. 1990) ("A reasonable person, exercising due diligence, should know that of those exposed to asbestos, only a small percentage suffer from asbestos-related physical impairment.")); cf. Morgan & Seaton 319 (study showed that of persons exposed to asbestos after 1959, only 2 percent had asbestosis when first examined; for those exposed from 1950- 1959, that figure is 18 percent).

C

Norfolk presented the question "[w]hether a plaintiff who has asbestosis but not cancer can recover damages for fear of cancer under the [FELA] without proof of physical manifestations of the claimed emotional distress." Brief for Petitioner (i). Our answer is yes, with an important reservation. We affirm only the qualification of an asbestosis sufferer to seek compensation for fear of cancer as an element of his asbestosis-related pain and suffering damages. It is incumbent upon such a complainant, however, to prove that his alleged fear is genuine and serious. See, e. g., Smith v. A. C. & S., Inc., 843 F. 2d 854, 859 (CA5 1988) ("general

to recover for fear of cancer only if they "make out a claim for negligent infliction of emotional distress; and they cannot do so"); 180 (quoting from Gottshall). But see Metro-North, 521 U. S., at 437 ("emotional distress damages sought by asbestosis-afflicted plaintiff" found to fit "within a category where the law already permitted recovery for mental distress").

The principal dissent gains no genuine aid from Barron v. Martin-Marietta Corp., 868 F. Supp. 1203 (ND Cal. 1994), a decision it cites as authority for equating exposure-only and asbestosis claimants. See post, at 175. The Barron plaintiffs "adduced no evidence of exposure to a toxic substance which threatens cancer." 868 F. Supp., at 1205. When that is the case, we agree, cancer-fear damages are unavailable.

157

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