By: William A. Dreier and Edward G. Sponzilli

On March 10, 2003, the United States Supreme Court, by a 5-4 decision, determined in Norfolk & Western Railway Co. v. Ayers, that a railway worker diagnosed with asbestosis can also present a claim for fear that he or she would later develop a related cancer. According to the Court, where there is a manifest physical injury, and this fear is “genuine and serious,” then the fear is an integral part of the worker’s damages.

Although this was a Federal Employers’ Liability Act case, it may well have an impact upon non-statutory asbestos-related civil claims. Interestingly, this new Federal doctrine is not appreciably different from that already existing in New Jersey. In fact, the Court relied in part on New Jersey law. Coffman v. Keene, 257 N.J. Super. 279, 293-94 (App. Div. 1992 ). See also, Mauro v. Raymark Industries, Inc., 116 N.J. 126 (1989); Ayers v. Jackson Township, 106 N.J. 557 (1987); Evers v. Dollinger, 95 N.J. 399 (1984); and Devlin v. Johns-Manville Corp., 202 N.J. Super. 556 (Law Div. 1985).

In Devlin, Judge Keefe explained the difference between serious fear evidenced by emotional distress or clinically-diagnosed phobia on one hand, and a mere enhanced risk of cancer on the other. In fact, the fear of cancer and cancer-phobia were noted as distinct injuries. Relief for such fear, however, is predicated upon an existing physical injury. Mauro (pleural thickening); Evers (breast cancer); Devlin and Norfolk & Western (asbestosis). The Third Circuit was in accord even prior to Norfolk & Western. See Herber v. Johns-Manville Corp., 785 F.2d 79 (3d Cir. 1986).

Unfortunately, Norfolk & Western will open the courts not only in “liberal” New Jersey, but nationwide, to a flood of “fear of cancer” cases. New Jersey plaintiffs will see little effect, but New Jersey manufacturers will be faced nationally with expanded risks. This case enhances the claims not just of diagnosed asbestosis or cancer victims, but also those of the pleural thickening and other currently unimpaired claimants, most of whom have but slight possibilities of developing cancer. This greatly diminishes the pool of money remaining for the truly injured. The same insurance or corporate dollars must pay the victims of asbestos-related cancer, mesothelioma, and severe asbestosis, as was recognized by Justice Kennedy in his dissent:

By the time the worker is entitled to sue for the cancer, the funds available for compensation in all likelihood will have disappeared, depleted by verdicts awarding damages for unrealized fear.

As Justice Breyer wrote in a separate dissent, the Court should not “ignore the practical problems that threaten the achievement of tort law’s basic compensatory objectives.”

Congress is now considering remedial legislation to come to grips not only with asbestos injuries, but with the asbestos lawsuit scourge which has forced substantial corporations into bankruptcy under the pressure of hundreds of thousands of small claims based on an alleged shadow in an X-ray, without symptoms, but now augmented by an assertion of a “fear of cancer.”

There have been some innovative judicial solutions attempted by Judge Weinstein in the Eastern District of New York, but later disapproved by the Second Circuit, and by Judge Wolin in the W. R. Grace & Co. bankruptcy matter in which he determined to give priority to serious claims and reserve those of unimpaired claimants for future consideration. We applaud these efforts, but the issue must be met head-on by Congress.