Norfolk & Western R. Co. v. Ayers, 538 U.S. 135, 25 (2003)

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

Opinion of the Court

of Appeals of West Virginia, Norfolk urged that fear of cancer could figure in the recovery only if the claimant proved both a likelihood of developing cancer and physical manifestations of the alleged fear. See App. 548 (Norfolk's charge request); id., at 634 (amended petition for appeal). And although Norfolk submitted proposed verdict forms, id., at 549-560, those forms did not call for jury specification of the amount of damages, if any, awarded for fear of cancer. Thus, as earlier observed, supra, at 144, it is impossible to tell from the verdicts returned whether the jury ascribed any part of the damages awards to the alleged cancer fear, and if so, how much.19

We did not grant review, in any event, to judge the sufficiency of the evidence or the reasonableness of the damages awards. We rule, specifically and only, on the question whether this case should be aligned with those in which fear of future injury stems from a current injury, or with those presenting a stand-alone claim for negligent infliction of emotional distress. We hold that the former categorization is the proper one under the FELA.

IV

We turn next to Norfolk's contention that the trial court erred in instructing the jury "not to make a deduction [from damages awards] for the contribution of non-railroad [asbestos] exposures" to the asbestosis claimants' injuries. App. 570. The statutory language, however, supports the trial court's understanding that the FELA does not authorize ap-19 In their prediction that adhering to the line drawn in Gottshall and Metro-North will, in this setting, bankrupt defendants, see post, at 168-169 (Kennedy, J.); post, at 186 (Breyer, J.), the dissents largely disregard, inter alia, the verdict control devices available to the trial court. These include, on a defendant's request, a charge that each plaintiff must prove any alleged fear to be genuine and serious, review of the evidence on damages for sufficiency, and particularized verdict forms. Norfolk chose not to seek control measures of this order; instead, Norfolk sought to place cancer-fear damages entirely outside the jury's ken. See supra, at 143, 147.

159

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