Cite as: 538 U. S. 135 (2003)
Opinion of Kennedy, J.
The Court's response to the possibility of speculative awards is instead to adopt common-law rules restricting the classes of plaintiffs eligible to seek recovery and the types of emotional distress for which recovery is available. See ibid.; see also Metro-North, 521 U. S., at 436. This is not to say that allegations of emotional distress need not be genuine and serious in order to warrant compensation, but review for genuineness alone does little or nothing to prevent capricious outcomes. Instead, the responsibility of today's Court is not to review whether an individual claim alleging fear of cancer is genuine and severe, but to adopt a rule that reconciles the need to provide compensation for deserving claimants with the concerns that speculative damages awards will exhaust the resources available for recovery.
III
The Court, to be sure, does refer to the admonition in Metro-North that common-law rules must be adopted to avoid the risk of " 'unlimited and unpredictable liability.' " Id., at 433 (quoting Gottshall, supra, at 557). Yet the rule it adopts is an unreasoned rule of limitation—a rule that does not advance the goal of ensuring that fair and sensible principles will govern recovery for injuries caused by asbestos.
The majority ends its opinion with a plea for legislative intervention, ante, at 166, an entreaty made before, see Ortiz v. Fibreboard Corp., 527 U. S. 815, 821 (1999); id., at 865 (Rehnquist, C. J., concurring); id., at 866-867 (Breyer, J., dissenting). This case arises under FELA, however, by which Congress has directed the courts, and ultimately this Court, to use their resources to develop equitable rules of decision. It is regrettable that the Court today does not accept that responsibility.
These reasons explain my dissent from Part III of the Court's opinion.
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