Straight Track #155

Railroaders scored two big victories in a U.S. Supreme Court case released on March 10, 2003.

In a high-stakes battle between Railroads and Injured Employees, the two key questions answered by the Supreme Court in the new case (Norfolk and Western Railway Co. v. Ayers) are: 

1. When Railroaders get a disease (like asbestosis) because of the negligence of their Employer, and they face a 10% chance of developing cancer as a result, can the Railroaders get paid for emotional distress caused by fear of getting cancer? And,

2. If a Railroader who developed asbestosis was exposed to asbestos for years before he started working for the Railroad -- and he only worked for the Railroad for three months (where he was also exposed to asbestos) -- does the Railroad get to reduce the amount of money its owes to the injured Railroader based on the fact that the Railroad was only partially at fault in causing the injury?

This article (Part I) explains the Supreme Court's answer to the first question. Next week's issue of Straight Track covers the high court's response to the second question.

Emotional Distress

The journey to the U.S. Supreme Court started in West Virginia when some Norfolk & Western employees filed a lawsuit saying they got "asbestosis" because the Railroad negligently exposed them to asbestos. Asbestosis is a scarring of the lungs caused by exposure to asbestos fibers. 

Asbestosis isn't cancer. But, at trial, there was testimony that around 10% of people who get asbestosis wind up getting lung cancer. [Smokers with asbestosis get cancer at even higher rates.]

The million dollar question was whether these Injured Railroaders can get paid for emotional distress caused by fear they might eventually get cancer.

If you've been physically injured by a Railroad's negligence, a Jury can order the Railroad to pay for the suffering and emotional distress that was caused by the injury. A Railroader who loses an arm because of his Employer's negligence can get monetary compensation for the emotional distress of losing a limb. But what if you suffered emotional distress because of the Railroad's negligence, and you weren't physically injured?

In 1994 and 1997, the U.S. Supreme Court issued important rulings putting limits on when Railroad Employees can get paid for emotional distress under the Federal Employers' Liability Act (FELA). 

The Railroader in the 1994 case actually witnessed an accident that killed a co-worker. But the Supreme Court ruled that Railroaders who aren't physically injured can get paid for emotional distress only if they were in the "zone of danger" caused by the Railroad's negligence. For example, if the Railroad's negligence causes an accident that kills your best friend, but you were too far away to see or hear the accident, you can't recover for emotional distress, even if you arrive on the scene soon after the accident and see your buddy's lifeless body. 

Seeing your friend's mangled corpse shortly after a horrible accident can cause extreme emotional distress. But, under the 1994 Supreme Court case, you can't get paid for the emotional distress because you weren't in the "zone of danger" caused by the Railroad's negligence.

On the other hand, if you are standing right next to your best friend when the Railroad's negligence caused an explosion that killed your buddy, and -- although you didn't even get a scratch -- you were so close you easily could have been killed or injured too, you can get paid for the emotional distress caused by the accident. You can get paid for emotional distress in this situation because you were in the "zone of danger" caused by the Railroad's negligence.

Taking emotional distress cases a step further, the 1997 Supreme Court case involved a Railroad that negligently exposed some of its Employees to a substance that sometimes causes cancer. But these employees didn't have any sickness or disease when they filed their lawsuit. What they wanted was to get paid for the emotional distress caused by the fear they might eventually get cancer based on mere exposure to a substance that might -- or might not -- cause cancer. 

The 1997 case wasn't a situation where the Railroaders could prove they probably (more than 50% likely) would get cancer. Rejecting arguments made by Railroaders, the U.S. Supreme Court ruled Railroad Employees who were negligently exposed to a substance that might cause cancer -- but who aren't suffering from any disease or sickness when they filed their lawsuit -- can't get paid under the FELA for the emotional distress caused by the fear that they might eventually get cancer.

The open question -- the first question answered in the new Supreme Court case -- is:

Can Railroad Employees who -- because of Railroad Negligence -- actually wind up with a non-cancerous disease (asbestosis)  -- get paid for emotional distress caused by fear they might eventually get cancer?

Norfolk & Western argued that since only 10% of the people who get asbestosis wind up eventually getting cancer, the Railroad Employees should get nothing for the fear of getting cancer.

Splitting on a 5-to-4 vote, the Supreme Court ruled against the Railroad. 

The new rule is that Employees who wind up getting asbestosis (or some other disease) because of the Railroad's negligence can get paid for emotional distress caused by fear they might eventually get cancer. But, getting paid for emotional distress in this situation isn't automatic. Instead, the Supreme Court explained, the fear of developing cancer must be genuine and serious.

This is an important victory for Railroaders, even if they were never exposed to asbestos. In future cases, Judges should apply the Supreme Court's reasoning in other situations. So, for example, if:

1. The Railroad's negligence causes some physical injury or illness. 

2. There is a substantial (maybe 10%) chance the injury or illness will cause some horrible disease in the future. And,

3. The Railroaders suffers serious and genuine emotional distress because of fear of developing the future disease. Then,

4. A Jury in an FELA case can order the Railroad to pay for the emotional distress caused by the fear of developing the future disease.

This is a big win for Railroaders. 

Stay tuned...Next week, Steve will unpack the second important holding of the Ayers case: Does the Railroad get to reduce the amount of money its owes to the injured Railroader based on the fact that the Railroad was only partially at fault in causing the injury? (The answer may surprise you.)

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