Day on Torts
The U.S. Supreme Court reversed a Tennessee Court of Appeals case on the proper instruction to the jury in an FELA case when the plaintiff is seeking damages for fear of developing lung cancer. The worker alleged that his work exposed him to asbestos, which caused asbestosis. He sought pain and suffering damages for fear of developing lung cancer.
The railroad asked that the jury be instructed that the fear must be "serious and genuine" to be compensable. The Tennessee Court of Appeals upheld the trial judge’s refusal to give such an instruction. The High Court reversed, saying "the volume of pending asbestos claims and also because the nature of those claims enhances the danger that a jury, without proper instructions, could award emotional distress damages based on slight evidence of a plaintiff’s fear of contracting cancer." (Interesting rationale, isn’t it? There are so many people who have been hurt and killed by asbestos that we need to set the bar high on the issue of damages. The worse the product, the higher the standard, I guess.)
Doesn’t the gatekeeper function of the court in evaluating expert testimony already address this issue? Not according to the Supreme Court;
It is no answer that, as the Tennessee Court of Appeals stated, courts can apply the Ayers standard when ruling on sufficiency-of-the-evidence challenges. To be sure, [Norfolk & Western R. Co. v.] Ayers recognized that a “review of the evidence on damages for sufficiency” is another of the “verdict control devices” available to courts when plaintiffs seek fear-of cancer damages. Id., at 159, n. 19. But a determination that there is sufficient evidence to send a claim to a jury is not the same as a determination that a plaintiff has met the burden of proof and should succeed on a claim outright. Put another way, a properly instructed jury could find that a plaintiff’s fear is not “genuine and serious” even when there is legally sufficient evidence for the jury to rule for the plaintiff on the issue. That is why Ayers recognized that sufficiency reviews and jury instructions are important and separate protections against imposing unbounded liability on asbestos defendants in fear-of cancer claims.
Justice Stevens’ dissent points out that " it is hard to believe the jury would have awarded any damages for Hensley’s fear of cancer if it did not believe that fear to be genuine and serious."
The case is CSX Transportation, Inc. v. Hensley, 556 U.S. ___ ( June 1, 2009). Read it here. The dollar amount of the jury verdict that was reversed? $5,000,000, plus several years of post-judgment interest.