158
Opinion of the Court
concern for [one's] future health" held insufficient to support recovery for an asbestosis sufferer's fear of cancer); Coffman v. Keene, 257 N. J. Super., at 293-294, 608 A. 2d, at 424-425 (sustaining a verdict including fear-of-cancer damages where trial judge found plaintiff "ha[d] a genuine, real believable fear of cancer" (internal quotation marks omitted)). See also Minneman, 50 A. L. R. 4th, § 5, at 54-56, (discussing cases affirming the view that "apprehension must be genuine").17 In this case, proof directed to that matter was notably thin,18 and might well have succumbed to a straightforward sufficiency-of-the-evidence objection, had Norfolk so targeted its attack.
Norfolk, however, sought a larger shield. In the trial court and in its unsuccessful petition to the Supreme Court
17 The asbestosis claimants here acknowledged that "a jury is entitled to consider the absence of physical manifestations [of alleged emotional disturbances] as evidence that a mental injury is less severe and therefore less deserving of a significant award." Brief for Respondents 17.
Considering the dissents' readiness to "develop a federal common law" to contain jury verdicts under the FELA, see post, at 170, 177, 181 (Kennedy, J.); post, at 187 (Breyer, J.), it is curious that the principal dissent nevertheless questions the "basis in our FELA jurisprudence" for the requirement that claimants prove their alleged fear to be "genuine and serious," see post, at 180 (internal quotation marks omitted). In contrast to the principal dissent, Justice Breyer appears ultimately to advance only an elaboration of the requirement that the plaintiff prove fear that is "genuine and serious." He would specify, additionally, that the fear "significantly and detrimentally affec[t] the plaintiff's ability to carry on with everyday life and work." Post, at 187. That elaboration, Justice Breyer maintains, is "consistent with the sense of the common law." Ibid. The definition Justice Breyer would give to the terms "genuine and serious" in this context was not aired in the trial court or in this Court. See supra, at 143, 148, and this page. We therefore resist ruling on it today.
18 As Norfolk noted, one of the claimants did not testify to having any concern about cancer; another testified that he was more afraid of shortness of breath from his asbestosis than of cancer. Others testified to varying degrees of concern over developing the disease; no claimant presented corroborative objective evidence of his fear. Brief for Petitioner 9 (citing App. 116-117, 255, 277, 298-299, 332).
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