Possible $200B liability

U.S. Supreme Court sides with workers in asbestos case
OCTOBER 26, 2001 - published with permission from the Daily Commercial News

WASHINGTON

The U.S. Supreme Court has ruled that some workers who were exposed to cancer causing asbestos can win money damages in court - even though they do not yet have cancer and may never get it.

The fear of developing cancer is grounds enough to collect for workers who already have asbestosis, a separate asbestos-related ailment, and can document their health fears, a five-member majority of the court found.

"It is incumbent upon such a complainant, however, to prove that his alleged fear is genuine and serious." Justice Ruth Bader Ginsburg wrote. Justices John Paul Stevens, Antonin Scalia, David Souter and Clarence Thomas joined Ginsburg.

Asbestosis sufferers do not necessarily go on to develop cancer.

The court sided with six retired railroad workers who won 5.8 million (all figures U.S.) from Norfolk & Western Railway. The ruling was narrow however, and turned on the language of a 1908 law protecting railroad workers from employer negligence.

The ruling was a blow to the railroad giant Norfolk Southern and to big business generally. The Railroad and its backers had hoped the conservative-leaning high court would use the case to curb the burgeoning asbestos-related lawsuits in state and federal courts.

In an unanimous portion of the ruling, the court acknowledged the lefal morass, but said it is a problem for Congress to sort out.

"Courts must, however, resist please of the kind Norfolk has made, essentially to reconfigure established liability rules because they do not serve to abate today's asbestos litigation crisis," the court said.

Asking for protection

Big companies are asking Congress for protection from an estimated 200 billion in asbestos liability. There are more than 600,000 asbestos-related lawsuits before the courts today and many more are expected.

In Monday's case, the Supreme Court majority suggested that the railroad might have won its case if it had simply challenged the quality of evidence that the workers presented to shoe their fear of cancer.

Instead, Norfolk wanted state courts in West Virginia to rule that the workers could collect only if they could offer proof that the fear of caner was taking a physical toll on them.

In dissent, four justices said previous court rulings do not support the finding that the workers could collect money when they suffer "some other disease, not itself causative of cancer."

The 1908 Federal Employers' Liability Act is intended to protect workers, and allowing the kind of lawsuits at issue in this case might seem on the surface to be in line with the law, Justice Anthony M. Kennedy wrote for himself, Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Stephen Breyer.

"The realities of asbestos litigation should instruct the court otherwise," Kennedy said.

Five of the six railroad workers smoked, three of them for 30 years or more, and all are between 60 and 77 years old, Kennedy noted. They suffer from shortness of breath and other complaints, but Kennedy implied evidence of "emotional injury" was thin.

If these workers and others like them can collect money, there may be nothing left to compensate people who do not have asbestosis but who will develop asbestos-related cancer in the future, Kennedy wrote.

"These cancers inflict excruciating pain and distress, pain more sever than that associated with asbestosis, distress more harrowing than the fear of developing a future illness," Kennedy wrote.

The majority ruling threatens workers rather than helping them, the dissenters said, nothing that asbestos litigation has already driven 57 companies into bankruptcy. Twenty-six of those firms went bankrupt just since Jan.1, 2000, the dissenters noted.

"It is only a matter of time before the inability to pay for real illness comes to pass. The court's imprudent ruling will have been a contributing cause to this injustice."

The case is Norfolk & Western Railway versus Ayers.