U.S. Supreme Court sides with workers
in asbestos case
OCTOBER 26, 2001 - published with
permission from the Daily Commercial News
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
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
"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"
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
The case is Norfolk &
Western Railway versus Ayers.