184
Opinion of Breyer, J.
views. And the variety of answers courts have given to the question at issue here demonstrates that courts have not reached a consensus. See ante, at 150-151, and n. 11 (majority opinion); ante, at 173-174 (opinion of Kennedy, J.).
Given the legal uncertainty, this Court, acting like any court interpreting the common law, see ante, at 177 (opinion of Kennedy, J.), should determine the proper rule of law through reference to the underlying factors that have helped to shape related "emotional distress" rules. Those factors argue for the kind of liability limitation that Justice Kennedy has described, ibid.
First, the law in this area has sought to impose limitations that separate valid, important emotional distress claims from less important, trivial, or invalid claims. See Metro-North Commuter R. Co. v. Buckley, 521 U. S. 424, 433 (1997). The presence of physical harm often provides a central touch-stone in this regard. But that does not work here. That is because, given ordinary background risks, the increment in a person's fear of cancer due to diagnosis of a condition such as asbestosis seems virtually impossible to evaluate. See ante, at 178-179 (opinion of Kennedy, J.). The evidence (viewed in the plaintiffs' favor) indicates that, for a non-smoker, a diagnosis of asbestosis may increase the perceived risk of dying of cancer from something like the ordinary background risk of about 22% (about two chances in nine) to about one chance in three. See ante, at 155 (majority opinion); ante, at 178-179 (opinion of Kennedy, J.). See also L. Ries et al., National Cancer Institute, SEER Cancer Statistics Rev., 1973-1999, Table I-16 (2002), available at http:// seer.cancer.gov/csr/1973_1999/overview.pdf (as visited Mar. 3, 2003) (available in Clerk of Court's case file). Would a reasonable person who is not already afraid of cancer when the odds of dying are about two in nine suddenly develop a "genuine and serious" and "reasonable" fear when those odds change to one in three? Would a smoker, a risktaker whose conduct has already increased the chance of cancer death to,
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