Cite as: 538 U. S. 135 (2003)
Opinion of Kennedy, J.
"In any case, Appellants are not left without a remedy for their mental anguish. [Pennsylvania case law] permits an action to be commenced if cancer develops. It is in this action that Appellants can assert their emotional distress or mental anguish claims. To allow the asbestos plaintiff in a non-cancer claim to recover for any part of the damages relating to cancer, including the fear of contracting cancer, erodes the integrity of and purpose behind the [separate] disease rule." Simmons v. Pacor, Inc., 543 Pa. 664, 677-678, 674 A. 2d 232, 238- 239 (1996).
This analysis is persuasive because it accounts, in a way that the majority's decision does not, for changes already underway in common-law rules for compensating victims of a disease with a long latency period. This approach surely is more likely to result in an equitable allotment of compensation than the decision of the Court; and this is the rule the Court should adopt to govern the availability of damages for fear of cancer under FELA.
Pennsylvania is not alone in rejecting the majority's view. In a careful opinion applying California law, the United States District Court for the Northern District of California held that parasitic damages for fear of cancer may be recovered only where there is a verifiable causal nexus between the injury suffered and the cancer feared. Barron v. Martin-Marietta Corp., 868 F. Supp. 1203, 1211-1212 (1994). The court recognized that California courts had not yet addressed the type of physical injury that would permit compensation for fear of cancer, see id., at 1210, n. 9, but it determined that the requirement of a causal nexus was a clear implication of recent California Supreme Court precedent, see id., at 1212 (citing Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 863 P. 2d 795 (1993)). The justification for this prerequisite is significant in this case as well:
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