Norfolk & Western Railway Company v. Ayers – Oral Argument – November 06, 2002

Media for Norfolk & Western Railway Company v. Ayers

Audio Transcription for Opinion Announcement – March 10, 2003 in Norfolk & Western Railway Company v. Ayers

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William H. Rehnquist:

We’ll hear argument now in Number 91… or rather, 01-963, Norfolk & Western Railway Company versus Freeman Ayers.

Mr. Phillips.

Carter G. Phillips:

Thank you, Mr. Chief Justice, and may it please the Court:

In 1997, this Court recognized that there is an asbestos litigation crisis confronting the Nation, and nothing in the last five years has been… done anything other than to show that that crisis is more acute now than at any other time in our history.

The Rand Corporation in a report just two months ago concluded that there are now 6,000 defendants confronted with asbestos litigation claims, that the estimated value of those claims in litigation costs exceeds $200 billion.

The six plaintiffs who are involved in this case, the respondents here today, are emblematic of at least a fundamental element of the problem that confronts asbestos litigation.

Each of them received close to, and in some instances more than a million dollars in compensatory damages for claims of asbestosis.

The basis for their claim, the primary basis for their claim was that they confronted a fear of cancer.

Asbestosis does not convert into cancer–

Stephen G. Breyer:

How do we know that?

I mean, I notice that the awards there seem to grow with age, and they don’t seem to vary depending upon smoking.

I mean, they’re inversely related to age, they don’t seem to be affected by smoking, and that suggested to me that maybe it didn’t play a major part, this fear of cancer.

How do we know that it played a major part?

Carter G. Phillips:

–Well, there is a legal answer and there is a factual answer.

The legal answer is that you have to assume it because the jury was instructed to include it as an element, and under West Virginia law, it is absolutely settled and respondents don’t contest it.

John Paul Stevens:

Well, but that, the fact that it’s one element doesn’t mean it’s the primary element, does it?

They did all suffer physical impairment as a result of the asbestosis itself, did they not?

Carter G. Phillips:

They all suffered asbestosis, and they all suffered some physical elements of it.

John Paul Stevens:

And how do you know that the physical impairment was not the primary ingredient in the jury verdict.

I don’t understand that.

Carter G. Phillips:

I don’t know that it’s not the primary ingredient, Justice Stevens.

What I do know is that as a matter of law, you can’t ignore the fact that the… that fear of cancer was put before the jury as a significant component of the plaintiff’s case in chief, that the jury was instructed to include that, and that–

John Paul Stevens:

Yes, but you said it was the primary element of damages, and that’s what I think Justice Breyer and I are wondering whether the record really supports that element–

Carter G. Phillips:

–Well, I think the record supports it in the sense that we know that these are asbestosis claims that even the respondents’ expert testified were mild, for the most part.

One or two differences about that, but these are still relatively mild asbestosis claims, and mild asbestosis claims do not typically generate million-dollar damages awards–

John Paul Stevens:

–Did the defendant–

Carter G. Phillips:

–particularly where there’s no cost of medical care as part of the component.

Ruth Bader Ginsburg:

–Mr. Phillips, did the defendant attempt to test this by seeking a special verdict so that the damages could be broken down by the jury?

This was a general verdict, so we don’t know how much they gave for anything.

Carter G. Phillips:

No, the defendants didn’t… the defendant did not ask for that.

Ruth Bader Ginsburg:

But it could have–

Carter G. Phillips:

What the defendant did ask for, Justice Ginsburg, was to have fear-of damages eliminated as a component of the case in a case like this–

Ruth Bader Ginsburg:

–But they could have… if they tested this, isolated this, and then we’d know how much was actually allocated, whether it was as he initially said the primary, or whether it was a lesser thing.

We just don’t know.

Carter G. Phillips:

–Oh, and that’s because it’s the plaintiff’s burden.

If they didn’t want to have… if they didn’t want to take the risk of a general verdict being set aside because there’s an element of damages that’s included that the court ultimately decides should be excluded as a matter of law, they then bear the risk and the burden of having the case sent back for a new trial.

Oh, but the relevance of this, I think your overall point, in my mind, is that the other side would say, I think they do say that this is a case in which there was an impact, and as a result of the impact… the thickening of the lungs… the person does have a fear of getting cancer greater than most people, that that’s… entitles them under traditional law to some damages, and where you can get a special verdict, it’s easy to see, if the jury has awarded too much damage for that, in which case you get a reversal under… you get a reversal if they get too much for it, and… so what’s the problem here that has anything to do with there being 6,000 plaintiffs and enormous damage and problems overall?

Carter G. Phillips:

Well, the problem’s easy to identify, that is that if the instruction is that everyone who suffers a diagnosed case of asbestosis is entitled to go to the jury on fear of cancer claims, then the amount of damages that will be generated as a consequence of that will run completely out of sync–

Stephen G. Breyer:

Why?

Carter G. Phillips:

–with the damages that–

Stephen G. Breyer:

Why would it?

Why… maybe they’re entitled to some fear.

A person who has no problem in the world has a 1 in 4 chance of dying in cancer.

A person who’s subjected to asbestos may have a 1 in 3 chance.

Carter G. Phillips:

–But this Court–

Stephen G. Breyer:

That gives them entitlement to some little amount, anyway.

Carter G. Phillips:

–Justice Breyer, you said, or the Court said in Buckley that you don’t analyze these issues case by case.

What you have to do is make a judgment about the category of cases that’s based on the policies of the Federal Employers Liability Act, and the Federal–

William H. Rehnquist:

Mr. Phillips, under West Virginia practice, is it… if a plaintiff or a defendant requests a special verdict, is it automatically allowed, or is it in the discretion of the trial court?

Carter G. Phillips:

–It’s in the discretion of the trial court, and it is also clear under West Virginia law that if two theories are put before the jury with respect to damages and one of them is impermissible, the answer is you strike down and you get a new trial on damages, so that’s… that’s clear.

And I don’t… I don’t hear the respondents as arguing anything to the contrary.

Mr. Phillips, do we look at this case as one of a claim for traditional pain and suffering damages?

Is that how we should view it?

Carter G. Phillips:

No.

This Court said in Gottshall that pain and suffering damages are describable as sensations stemming directly from a physical injury or condition.

The physical injury that… that’s identified here is asbestosis, and to be sure, the pain and suffering an asbestotic would be allowed to recover for might be a fear of shortness of breath or other symptoms that arise out of asbestosis, but the notion that cancer that doesn’t exist currently, may never take place, stems from the existence of asbestosis is not a fair application of that rule of law, particularly when there is no evidence, and again, I don’t think respondents challenge this, that asbestosis does not cause cancer, it does not lead to cancer.

Well, it sounds like you want us to say there is some limitation on the availability of pain and suffering damages in the context of an asbestosis case.

Carter G. Phillips:

All… Not–

Sandra Day O’Connor:

It would be something different than one would think of in a traditional pain and suffering case, wouldn’t it?

Carter G. Phillips:

–Well, I think it’s the respondents who are asking you to do something different with a pain and suffering case, and actually I’m not even sure that’s a fair way to characterize the respondents’ argument.

Carter G. Phillips:

I don’t understand them to be arguing that this is a classic pain and suffering–

Sandra Day O’Connor:

Well, I’m trying to find out what you’re arguing.

Carter G. Phillips:

–Right, and my argument is, this is not under any circumstances the kind of pain and suffering that we traditionally think of.

It’s not something that emanates directly out of the existing injury.

Second, it’s not negligent infliction of emotional distress, and it’s not emotional injury as a component of a negligence claim.

Sandra Day O’Connor:

Well, what was it… was the case presented as a separate claim for negligently-caused emotional distress?

Carter G. Phillips:

No.

It was–

Sandra Day O’Connor:

No.

It was a pain and suffering argument.

That’s what it was, wasn’t it?

Carter G. Phillips:

–Well, it wasn’t clear exactly what it was until the jury… until we got to the jury instructions.

At that point, the trial judge did say, I view these as pain and suffering.

Sandra Day O’Connor:

As pain and suffering.

Carter G. Phillips:

Yes.

Sandra Day O’Connor:

I mean, I thought that’s what we were confronting here.

Carter G. Phillips:

Well, except that the traditional standard for pain and suffering doesn’t permit the kind of disconnect between the fear of cancer that you’re talking about here and asbestosis.

You normally associate pain and suffering as sensations that emanate directly from the injury itself, and fear of cancer doesn’t emanate at all from asbestosis.

Sandra Day O’Connor:

But it can include fright.

Carter G. Phillips:

Fright from asbestosis–

Sandra Day O’Connor:

Yes.

Carter G. Phillips:

–to be sure.

Antonin Scalia:

Is it conceded… I think you said it was conceded, but is it conceded that fear of cancer does not emanate from asbestosis?

If it’s clear that you have a greater risk of cancer if you have contracted asbestosis, why isn’t the fear connected to the asbestosis?

Carter G. Phillips:

Well, it’s interesting, you know, the testimony itself was simply, do you have a fear because of exposure to asbestos now that you have asbestosis.

They didn’t even ask the question whether the fear arises out of the asbestosis.

David H. Souter:

Did you ask questions about the causation theory that you’re now espousing?

Carter G. Phillips:

No.

Our argument, Justice Souter, was that fear of cancer is too unrelated, as a matter of law, to be an element of pain and suffering.

David H. Souter:

Okay, but I take it your argument is that the mere fact that there is an association between asbestosis and a higher risk of developing cancer, depending on whether you smoke and so on, is not enough of an association to support a… in effect, a separate element of damages for fear of cancer?

Carter G. Phillips:

Yes, Your Honor.

David H. Souter:

What is your authority for that?

In other words, you’re saying there’s got to be some kind of a different, or more intense causal relationship than simply this association that can statistically be shown.

Carter G. Phillips:

I think–

David H. Souter:

What’s the basis for that?

Carter G. Phillips:

–Buckley, frankly, is as close to anything on that score, because Buckley says even if you accept as an article of faith, as I think the Court did, that each of those individuals who’d been exposed to asbestos felt that he or she would be more seriously at risk–

David H. Souter:

Did they have asbestosis?

Carter G. Phillips:

–No, none of the–

David H. Souter:

No–

Carter G. Phillips:

–No.

David H. Souter:

–they didn’t, and the point here is that there is proof of asbestosis, and there is a statistical showing that you don’t deny, I think, of a higher degree of risk, what… however the causal chain works… which associates asbestosis with fear of cancer, so this is not a Buckley situation, and my question is, why isn’t that statistical association sufficient to ground an instruction allowing for compensation for fear that results from this association?

Carter G. Phillips:

There are two answers to that, Justice Souter.

In the first place, the… there is no strong common law doctrine that says that those… that that kind of a disconnect between the damages is a core element of what the common law routinely grants for–

David H. Souter:

Well, you call it disconnect, he calls it a connect.

What it is, there is, I take it, an undenied statistical association between asbestosis and a probability of developing cancer–

Carter G. Phillips:

–Right.

David H. Souter:

–and that’s the basis for the claim of the fear.

Why is that inconsistent with a common law theory of pain and suffering damages?

Carter G. Phillips:

Well, the core of the pain and suffering… the pain and suffering theory is that it is a fright that emanates directly out of the particular condition you have, which is asbestosis.

David H. Souter:

All right, if you want to use that kind of terminology, I don’t see why you haven’t got it here.

The reason these people are worried is that they’ve got asbestosis, and people with asbestosis have a higher chance of developing cancer.

Isn’t that enough out of, in your terms?

Carter G. Phillips:

No.

Even if you accept that premise, Justice Souter, you still have to confront the overall policies of the Federal Employers Liability Act, and the question of whether not allowing a recovery that might otherwise be legitimate… and that is precisely what the Court said–

David H. Souter:

So, are you saying that even if the common law allowed it, we should not allow it under the act, or the act doesn’t allow it?

Carter G. Phillips:

–Well, I don’t think the common law clearly allows it.

David H. Souter:

Okay.

Have you got any authority for that proposition–

Carter G. Phillips:

No, because–

David H. Souter:

–that an association between these two conditions is insufficient to support a damage award?

Carter G. Phillips:

–There are lower court… we cite the Pennsylvania supreme court decisions, the Eleventh Circuit decisions… there are decisions out there that have said we’re not going to allow fear of cancer in cases involving asbestosis, but I–

Sandra Day O’Connor:

Well, there does appear to be a minority of jurisdictions that have said… and have held… that you have to show as a plaintiff in a case like this a verifiable causal nexus between cancer and the injury suffered in cases where you’re dealing with exposure to a hazardous material.

That… maybe that’s a reasonable requirement, but it appears to be a minority view.

Are you suggesting that we should adopt that here?

Carter G. Phillips:

–Well, I’m not asking you to… I don’t think the answer to this case resides in the common law, because I think the common law is essentially a muddle.

There are cases on both sides.

Sandra Day O’Connor:

Well, are you… do you think we should adopt an interpretation of FELA that says there has to be some verifiable causal nexus?

Carter G. Phillips:

Absolutely, Justice O’Connor, and the reason to do that–

Sandra Day O’Connor:

Do you acknowledge that that is a view that is generally a minority view in the country?

Carter G. Phillips:

–I… I… I’ll concede that it is a minority view in the sense that there are maybe five cases on one side–

Sandra Day O’Connor:

Yes.

Carter G. Phillips:

–and three or four on the other.

Sandra Day O’Connor:

Yes.

Carter G. Phillips:

This is not an area that’s been litigated sufficiently to be able to say where the trends are.

Sandra Day O’Connor:

It may make sense, but I just want to know where we are here.

Carter G. Phillips:

Right.

Well, I’ve only got two or three cases that identify it in the context… the way you just did, Justice O’Connor, and my colleague on the other side will identify four or five cases that don’t impose that requirement, but what remains absolutely critical in the analysis of this case, I think, is the core policy that this Court identified in Gottshall and in Buckley that says if you don’t have a clear answer from the common law, you have to see whether or not this particular damages remedy creates the possibility of unpredictable and unlimited damages, and that’s the reason why the Court needs to adopt a more restrictive view of the standard to be applied under the Federal Employers Liability Act.

That may not be the rule that would be required as a matter of common law in any particular State, but under FELA, the notion that you’re going to create unlimited liability in circumstances in which the plaintiffs are allowed significantly reduced requirements in order to prove a basis for their claim suggests that this Court has consistently taken the position that it must cut back and not allow on a category basis… on a categorical basis… not allow damages to extend to–

Antonin Scalia:

But what… I mean, what… unlimited damages, I don’t know what you want us to do.

What if the statistical chance of your getting cancer if you have asbestosis is… is your chances are doubled.

Would that be enough to create the kind of a fear that we could allow damages for it?

Carter G. Phillips:

–No, I don’t think so–

Antonin Scalia:

I see.

Carter G. Phillips:

–Justice Scalia.

Antonin Scalia:

What if it’s 90 percent certain that if you have developed asbestosis, you will develop cancer?

Carter G. Phillips:

I think that would be a different case.

I think once you get past more likely than not–

Antonin Scalia:

Okay, so it’s somewhere between 50 and 90 percent?

Carter G. Phillips:

–I think when you get past more likely than not that you will incur cancer, there is a risk, then at that point… but remember, the flip side of this is the two-disease rule, and that’s an important element in how the Court ought to analyze this problem, because not only… by allowing fear of cancer damages now, you essentially say to the world, the sky is the limit, inconsistent with what the Court said in Gottshall and Buckley.

The flip side is, if you don’t allow the fear of cancer damages now, but allow fear of… but allow the plaintiff to come back after he or she contracts cancer and allows as a part of that recovery for fear of cancer, then the people who are most seriously injured are made whole at the appropriate time in the appropriate circumstances.

Sandra Day O’Connor:

Mr. Phillips, I know your light is on, but there’s a second question and you haven’t even talked about it, the joint and several liability–

Carter G. Phillips:

The apportionment.

–the apportionment.

Carter G. Phillips:

Thank you, Justice O’Connor.

Sandra Day O’Connor:

And I wasn’t sure that there was any support in the statute or in the evidence at trial here for how some apportionment should have been made.

Carter G. Phillips:

Well, the quick answer on apportionment is that in 1908, it was absolutely clear there was several liability.

You’re only liable for the injuries you cause.

That’s embodied, I think, in the statutory language that says that the railroad is responsible for the injuries while employed.

That language has been interpreted as recognizing we only pay for the things that we cause.

The Third Restatement–

Ruth Bader Ginsburg:

Cause in whole or in part?

Carter G. Phillips:

–But that goes to the question of what you need to show a jury in order to get a negligence claim to the jury in the first instance.

It doesn’t say you’re… you’re liable for the entirety of the damages in whole or in part.

Ruth Bader Ginsburg:

It could be read to say that.

Carter G. Phillips:

It could, but I don’t think that’s the most natural reading of that particular language, and I don’t think it’s an appropriate one where the policies in 1908, and the policies of the law under the Third Restatement quite clearly say that you should apportion, because that is the fair way in order to ensure that a defendant is not… does not… is not forced to overcompensate.

Ruth Bader Ginsburg:

It’s really a question of who should bear the burden of bringing in those other people.

If it’s joint and several, you could join other people.

On your view, you say to the plaintiff,

“Unless, plaintiff, you bring in all these other people, you can only get a small piece from any particular one. “

Carter G. Phillips:

Right, and I think the statute and the existing common law clearly suggest that the right answer is that because you’ve reduced the burden of the plaintiff in order to get into court and to be able to make a case, the quid pro quo for that ought to be that you only hold the railroad liable for the amount of the injury it caused, and here it is not contested that… and Mr. Butler’s case is the prototype example of it… he had three months of exposure when he was with Norfolk & Western, he had 30 years of exposure with others.

That is a reasonable basis on which to apportion for cause, and that… and no one has contested that.

I’d reserve the balance of my time.

William H. Rehnquist:

Very well, Mr. Phillips.

Mr. Salmons, we’ll hear from you.

David B. Salmons:

Mr. Chief Justice, and may it please the Court:

Respondents may not recover damages under FELA for their anxiety about developing cancer in the future as part of their emotional injuries from the separate disease of asbestosis.

The overwhelming majority of courts that have considered the relationship between asbestosis and cancer have concluded that they are separate diseases that result in separate injuries to the plaintiff–

John Paul Stevens:

May I ask in that–

David B. Salmons:

–and give rise to separate–

John Paul Stevens:

–May I ask this question?

John Paul Stevens:

I really wanted to ask it of Mr. Phillips, but his time was running out.

Would you draw a distinction between a case in which the asbestosis actually is a cause of cancer, as opposed to a case like this, in which asbestos and cancer… asbestosis and cancer… are the result of a common cause?

David B. Salmons:

–Your Honor, I do think there would be a difference between those two instances.

Here, the Court can look to the evolving tort law principles in cases involving asbestos, where the overwhelming majority of courts have concluded they are, indeed, separate diseases with no causal connection between them only in the sense that they both stem from the same exposure–

John Paul Stevens:

So you would say–

David B. Salmons:

–to asbestos.

John Paul Stevens:

–So you would say that in this case, then, if it were true, which I understand it is not, that the asbestosis itself is a contributing cause to cancer, that then there would be liability?

David B. Salmons:

Well, Your Honor, I think that… you know… the Court may still need to look at what type… what exactly the causal connection is… and it would still need to take into account both the text and the purposes of FELA, and… and in particular, the concern–

John Paul Stevens:

But taking all those things into account, what do you do in a case in which the cancer is a result of the asbestosis rather than the result of a common source?

David B. Salmons:

–I… I do think, Your Honor, that if… that if the cancer, in fact, results directly from the disease of asbestosis, then that puts you more directly in the category of pain and suffering damages that would be available traditionally in tort law, and that probably would be recoverable there, but–

Antonin Scalia:

Why– –Isn’t that a jury question?

Do we know for sure that the one does not lead to the other?

David B. Salmons:

–I do think, Your Honor, that this Court can look to the experience of courts that have considered the relationship between the two diseases, and have adopted legal rules to govern the disposition of these claims, and have concluded that they are separate diseases that result in separate injuries and give rise to separate causes of action, and I think this Court can look to that and… and… and can conclude that as a matter of law both because of–

Antonin Scalia:

Do the respondents agree with you on that factual point?

David B. Salmons:

–That the majority of courts have concluded–

Antonin Scalia:

No… no, that… that asbestosis does not lead to cancer, but rather, is… is produced by the same… by the same cause that produces cancer?

David B. Salmons:

–Your Honor, I do think that the respondents have taken that position in this case.

On page 20 of their brief, they say that the relationship between asbestosis and cancer is two-fold.

First, the asbestosis confirms the extent and severity of the initial exposure to asbestos which, of course, under Buckley is not a separate injury or impact that can give rise to liability under FELA, and second, that they both… both the cancer and the asbestosis would result from the same negligent conduct of the defendant, but I do not read respondents to be alleging in this Court that there is any causal relationship between cancer and asbestosis in terms of asbestosis actually turning into cancer.

There may be a correlation, but you know, that… the reasonableness of the fears is really not the question.

John Paul Stevens:

The question I had is, if there is a causal correlation, if 50 percent of the people who have contracted asbestosis as a result of exposure to asbestos will also contract cancer, why does that matter?

That’s what I didn’t quite see.

David B. Salmons:

I… I think–

John Paul Stevens:

Because I understand… I think you do correctly state their… they agree with you on the facts on this.

David B. Salmons:

–Yes, Your Honor.

I think that in terms of… of the existing tort law principles that, as this Court noted in Gottshall, and even prior to that around the time of the enactment of FELA, that pain and suffering damages are limited to those damages that flow directly from the injury that allows you to sue, and that–

Ruth Bader Ginsburg:

But both of those cases were a self-standing claim of emotional distress.

It wasn’t pinned to any existing injuries.

Here, the difference, and at least as portrayed by the judge who made it part of pain and suffering, is you do have an injury, you have the asbestosis, and one of the elements of damages is pain and suffering, and this is included in pain and suffering.

At least that’s the way the judge saw it, as distinguished from Buckley and Gottshall, which were self-standing claims of emotional distress not tied to any preexisting injury.

David B. Salmons:

–Yes, Your Honor, that is the way the court below approached the question.

We think the problem with that is that, as the overwhelming majority of courts that have considered the issue of the relationship between the diseases have concluded, they are separate diseases that result in separate injuries and separate causes of action, and the test of FELA–

Ruth Bader Ginsburg:

But doesn’t it matter what form… I’m familiar with one of those cases, and that was the question–

David B. Salmons:

–Yes, Your Honor.

Ruth Bader Ginsburg:

–when does the statute of limitations start to run when you get the virulent form of cancer?

Does it begin to run when you got the asbestosis, because that should have tipped you off and you should have sued then?

The answer in that context, and there are many courts that say that cancer is a separate claim, is not necessarily what it should be in this context.

David B. Salmons:

We do think it is instructive, however, Your Honor, and that’s particularly true because FELA provides for liability… to any person suffering injury while employed… for such injury, and we think, consistent with the text of that statute, which limits the employer’s liability to the injury that’s actually suffered, and not the fear of suffering a future… injury in the future… that the rule we are propounding today is the most consistent with that text and the most consistent with the purposes and… and policy considerations this Court articulated in both Gottshall and Buckley, and in particular–

Ruth Bader Ginsburg:

You said in your brief that it’s a question of not whether, but when, because when you get cancer, if you get cancer, you get the damages for past, present, and future pain and suffering, but that’s not quite right, is it, because you are leaving out the category of person who has asbestosis and never gets cancer, which will be most of these people?

Those people… for them, it is a question of whether, not when, right?

David B. Salmons:

–It is true, Your Honor, that people who now have asbestosis and fear getting cancer in the future may never get cancer.

In fact, the overwhelming number of them won’t get cancer–

Ruth Bader Ginsburg:

And then they–

David B. Salmons:

–But–

Ruth Bader Ginsburg:

–they never… they can never collect for this alleged fear.

David B. Salmons:

–That is true, Your Honor, and that’s also true for the snowmen of Metro-North that were at issue in Buckley.

The Court… this Court did not say, though, their fears were not reasonable.

In fact, the court of appeals in that case had found that they were.

What this Court said was, they didn’t fit within the common law categories that allowed recovery because the exposure itself was not an impact or injury, and our position is that while the asbestosis gives them an ability to sue for their injuries related to that asbestosis, they cannot reach back to that initial exposure and recover the damages that were precluded in Buckley, namely–

David H. Souter:

But here… here we’ve got something more.

We’ve got the proof that this is a serious risk, and that proof consists of the fact that asbestosis has, in fact, developed.

David B. Salmons:

–That is correct, and they can recover for all of their harms related directly to that asbestosis, but our position is they can’t recover for their fears of the future disease of cancer–

David H. Souter:

I know that that’s your position, but once we cross that threshold, as we have in this case… the threshold that shows that the fear is, in fact, a serious one, because at least asbestosis has now developed, why isn’t their fear of cancer just as reasonable whether that fear rests upon the fact that in 10 percent of asbestosis cases, the asbestosis progresses to cancer… which isn’t true… or, on the other hand, in the same percentage of asbestosis cases, cancer will also develop as a result of the common cause for which the employer is liable?

Why is the fear any less reasonable in either of those cases?

David B. Salmons:

–Your Honor, with respect, we don’t think the question is whether their fears are reasonable, but their question is whether their fears are recoverable at this time.

David H. Souter:

Well, I know that, and one of the questions we want to know in determining whether recovery is possible is whether the fear is reasonable.

David B. Salmons:

And we do not–

David H. Souter:

One threshold test that we all agree on is, the fear has at least got to be confirmed by some physical manifestation.

Okay, we’ve got this here.

Once the physical manifestation is shown, why is reasonable fear… why should reasonable fear… not be enough for recovery, whether the causal connection goes from asbestosis to cancer, or common cause to cancer?

David B. Salmons:

–Your Honor, we think that one of the primary reasons why it should not be enough… that reasonableness of the fear should not be enough in and of itself… even assuming for a moment that the statistics that are at… that were in evidence here are, in fact, sufficiently conclusive to draw those assumptions… I mean, I do think it’s important to remember that this Court in Buckley referred to these same types of figures as being uncertain and controversial, and I think that that description is probably still true here.

But the purposes and policies of FELA, which this Court recognized in Buckley, and in particular the fear that plaintiffs with relatively minor injuries now will come into court being drawn by the opportunity to get front-loaded, significant damages for future harms, will end up frustrating the system, and will end up hurting the plaintiffs that in fact develop cancer later, and I think that this case implicates those policies and concerns of FELA and tort law generally just as much as was the case in Buckley, that the vast majority, the number of people that will actually get cancer in the future is relatively low, and there is a significant risk–

William H. Rehnquist:

Thank you, Mr. Salmons.

David B. Salmons:

–Thank you.

William H. Rehnquist:

Mr. Lazarus, we’ll hear from you.

Richard J. Lazarus:

Mr. Chief Justice, and may it please the Court:

The only issue raised by the first question presented in the cert petition is whether the trial court’s jury instruction correctly described the legal standard for when a physically injured plaintiff can recover for related emotional distress injury, and the sufficiency of the evidence and the jury’s application of that legal standard to the evidence at trial is not one of the questions presented in this case, and it is quite clear that the–

William H. Rehnquist:

Well, the question presented doesn’t speak in terms of the instruction, as I read it.

Richard J. Lazarus:

–No, but the question poses a pure question of law, and that is whether, when you have a physical injury, what the relationship has to be between the emotional distress and the physical injury, and our argument, Your Honor, is that under traditional tort law, it is not required that the emotional stress immediately accompany the physical injury; that it have its own physical manifestations; that it be severe.

Tort law, as this Court explained in the Metro-North case, approaches the recovery for emotional distress injury from a categorical perspective, and tort law categorically distinguishes between two different situations.

First, the situation where one has a stand-alone claim for negligent infliction of emotional distress where the emotional injury itself is the element of the offense, the injury element, and second, the so-called parasitic damage context, where there is a threshold physical injury which supplies the essential element, and what many courts do is they impose very significant limitations on the recovery of emotional distress in the stand-alone context such as physical manifestations, immediacy, and severity, but–

Sandra Day O’Connor:

And you say this case is not brought on this theory?

Richard J. Lazarus:

–The jury instruction is reproduced on page 573 of the joint appendix.

Sandra Day O’Connor:

Where do we… 573?

Richard J. Lazarus:

573 on the joint appendix, and that jury instruction makes it absolutely clear that respondents were entitled to recover for their reasonable fear of cancer as part of their overall damages only to the extent that that fear related to… the Court’s words… related to proven physical injury, and there is absolutely no merit to petitioner’s argument–

Sandra Day O’Connor:

Do some jurisdictions go further these days and require there be a reasonable causal nexus?

Richard J. Lazarus:

–Your Honor, almost no jurisdictions do.

There are really only two cases–

Sandra Day O’Connor:

I thought there were a few that did.

Richard J. Lazarus:

–But almost all the cases go the other way, and the reason, Your Honor, is because… there’s some confusion in petitioner’s argument here about what “pain and suffering” means.

If you look at the jury instruction very closely on page 573, the trial judge in this case was very careful, knew exactly what he was doing.

In the paragraph right before the “fear of cancer” paragraph, he refers to the entitlement of a physically injured plaintiff to recover for physical and mental pain and suffering.

In the next paragraph, where he refers to reasonable fear of cancer, he refers only to mental pain and suffering, and this is a longstanding distinction in tort law.

Physical pain and suffering is the kind of pain which is immediate and intimately associated with the bodily injury.

Stephen G. Breyer:

All that is true, what you say, but I felt the question was open, and the reason that I thought it was open is because probably I once learned that this area of the law arose out of an English case where somebody is watching a coffin fall off in an accident, and the rule was that you can’t recover unless something hits you, but what you were recovering for was the coffin, and the pain and suffering that a family member would feel.

Richard J. Lazarus:

Right.

Stephen G. Breyer:

That was immediate, directly related to the accident, and quite clearly present and measurable.

Richard J. Lazarus:

Right.

Stephen G. Breyer:

This is the kind of thing that is not immediate.

It’s a fear of something way in the future.

Stephen G. Breyer:

It is very hard to determine whether it is right or wrong, and it has no causal relation to the physical thing, and therefore, I thought that it’s open.

Richard J. Lazarus:

Your Honor, it’s really–

Stephen G. Breyer:

You want to say… I’ll look it up, but if you were to say it’s absolutely not open, I mean, they have, you know, lots of briefs where they’ve made a pretty good case it’s at least open.

Richard J. Lazarus:

–It’s open and shut.

Stephen G. Breyer:

Oh, all right.

[Laughter]

Richard J. Lazarus:

If one looks to the Restatement of Torts, section 456, which ascribed… well-settled, widely applied, and it describes the circumstances when a physically injured plaintiff can recover for related emotional distress injuries.

It fits this case, and it includes in comment c, it expressly denies the validity of their physical manifestation requirements–

Stephen G. Breyer:

No.

I mean, you saw their reply brief, and their reply briefed that is that the underlined phrase… the italicized phrase… or from conduct which causes it, is not really what’s at issue.

What’s issue are the words in that called “emotional disturbance”, and the question is, what kind of emotional–

Richard J. Lazarus:

–Yes.

Stephen G. Breyer:

–disturbance, and I think that their argument is, which if I put numbers on it is, each one of us in this room has 1 in 4 chance that we will die of cancer, and the difference between us and a plaintiff in this case is that he has a 1 in… wait.

We have 1 in 5… 1 in 5, and he has 1 in 4, and what they’re saying is, I think, that the difference between a 1 in 5 chance of dying of cancer, and a difference of 1 in 4 chance of dying in cancer is intangible… hard to measure in anyone’s psychology.

Nobody really makes such distinctions rational, and therefore don’t open this up to juries awarding large amounts of money.

Richard J. Lazarus:

Your Honor, one really can’t in the beginning start to entertain their evidence that they’ve introduced which wasn’t part of the trial record in this case.

The trial record–

Stephen G. Breyer:

No, I don’t think their evidence is relevant.

Richard J. Lazarus:

–Right.

Stephen G. Breyer:

I would say this is a question that’s being put to us as a matter of law.

Richard J. Lazarus:

Right.

Stephen G. Breyer:

And it is up to us to look at the numbers.

Richard J. Lazarus:

Right.

Stephen G. Breyer:

And in reaching those numbers I gave you, I’ve assumed everything in your favor.

That is, it’s really… because you’re a railroad and not the kind of thing that was involved in the studies you cite… it could be a lot less than I say, but it’s not going to be more.

Richard J. Lazarus:

Well, actually, it may well be more, but let’s put that aside.

What is quite clear, Your Honor, as this Court explained in the Metro-North case, is that just because there are background risks, that doesn’t mean that one can’t have a reasonable apprehension based on an increased risk.

For instance, it is 100 percent sure, Your Honor, that every one of us in this room will die.

We have a background risk.

But the fact that someone through negligent conduct causes us a physical injury which increases our risk of dying sooner does not mean we can recover for that.

Richard J. Lazarus:

And the place to look in the Restatement of Torts, Your Honor, to see that this is a classic thing that one can recover for, if you look to section 456, you look to comment c, and then it referenced comment… it referenced Restatement section 905, and Restatement… and it says that when you have a physical injury, then it triggers the whole panoply of emotional distress injuries, and section 905 of the Restatement of Torts describes what is encompassed by “emotional distress”, and comment e describes how it goes, as always, to fear, anxiety, apprehension of future consequences.

Ruth Bader Ginsburg:

Mr. Lazarus–

William H. Rehnquist:

–Well, Mr. Lazarus, what if you put a physician on the stand, and the physician says, this man was 25 years old when he was injured, he ordinarily would be expected to live to be 75, but as a result of this injury.

he’s only going to live to be 72?

Now, is that the sort of thing that’s compensable?

Richard J. Lazarus:

Well, Your Honor, I don’t know.

I don’t know… I don’t doubt, Your Honor, that in tort law, that there is a level of probability of risk below which one can say as a matter of law there’s not a reasonable apprehension.

I don’t think, though, in this case, first of all, that there’s any question that statistics support a reasonable apprehension, but even more importantly, the question whether they do or don’t in this case is not one of the issues here.

The issue is whether that’s enough.

The issue is whether you–

Ruth Bader Ginsburg:

Mr. Lazarus, may I ask you on that point… let’s for a moment not think of ourselves as lawyers.

Here are two people, the person in Buckley, the snowman, and the person who has asbestosis, both of those people may have a real fear of cancer, and we may find them credible witnesses.

I thought in the Buckley situation that one concern is, it’s too easy to make this up, and for some people facing that risk, they’ll say,

“Well, yeah, I might be run over tomorrow, it doesn’t bother me. “

Isn’t the real problem that the fear of something, when that fear doesn’t have the physical manifestation, that these things are too easy to make up, too uncontrollable, and I frankly can’t see the difference from the point of view of a sufferer between the person in Buckley and the person here.

The person in the Grand Central Station case could say

“I had the same fear that that person has. “

“He hasn’t proved his fear any more than I proved mine, why should he recover and not me? “

Richard J. Lazarus:

–Well, Your Honor, because as the Court, I think, explained quite well in Buckley, the way tort law approaches the question is on a categorical basis and distinguishes between those with physical injury, because if you have that threshold physical injury, that gives you the corroborating evidence you need that you have, now, a legitimate plaintiff… a legitimate plaintiff… who has established their cause of action.

You’re not adding new cases to the docket, and even more importantly, as the court has–

Ruth Bader Ginsburg:

Well, what’s more legitimate… and there was no doubt about the conditions under which the people worked in Grand Central Station… that they were exposed to asbestos, that they should have been told much earlier about their exposure, and they must have been very angry that they weren’t told.

Richard J. Lazarus:

–Well, Your Honor, first of all, those who have asbestosis, as the trial record in this case referred, those with asbestosis have a statistically higher significance of getting the other kinds of cancers, because what… it’s not just a mere exposure, unimpaired, and what the asbestosis requirement does by requiring that kind of serious physical injury is, as everyone understood, and the rail industry argued in Metro-North, it dramatically limits the number of–

Ruth Bader Ginsburg:

Well, is there–

Richard J. Lazarus:

–possible plaintiffs.

William H. Rehnquist:

–Mr. Lazarus, is their increased chance of cancer because they have asbestosis, or because the asbestosis originates from their exposure to asbestos, and it’s the exposure to asbestos, not the asbestosis, that will cause cancer?

Richard J. Lazarus:

Your Honor, we do not know, and no one knows, whether the asbestosis itself transforms itself into cancer.

William H. Rehnquist:

Well, I… then you do challenge the statement by your opponents that asbestosis itself cannot change into cancer?

Richard J. Lazarus:

No, Your Honor, their own experts–

William H. Rehnquist:

Well, no, now, wait a minute–

Richard J. Lazarus:

–Yes.

Richard J. Lazarus:

Yes.

I–

William H. Rehnquist:

–I asked you a question.

What’s the answer?

Richard J. Lazarus:

–I do.

I do challenge that.

William H. Rehnquist:

You do challenge that?

Richard J. Lazarus:

Their own expert, Your Honor, on page 470 of the joint appendix, Dr. Renn… their expert… testified on page 470 that one could not contract lung cancer from exposure to asbestos until one had asbestosis.

We’re willing to admit that the science is more unclear that asbestos… whether it actually transforms itself or not, we don’t know, and we don’t think as a matter of law it’s necessary.

It was their expert at trial who testified that actually to get lung cancer from asbestos exposure, it was a necessary prerequisite to first have asbestosis.

We think–

William H. Rehnquist:

Well, can I ask you one other–

Antonin Scalia:

–That question wasn’t put to the jury.

I mean, the fact is that the jury was not required to find that the fear was a fear that the asbestosis would turn into cancer.

Richard J. Lazarus:

–That’s absolutely right, Your Honor.

We… and we think that was not an error in the jury instructions.

There’s many cases out there… let me refer to this one case, a case they cite in their reply brief on page 2–

Ruth Bader Ginsburg:

Why wouldn’t that be error?

I mean, the instruction does say that a plaintiff who’s demonstrated that he’s developed a reasonable fear of cancer related to the proven physical injury from asbestos can be compensated for the fear.

Richard J. Lazarus:

–Right, and it has to be related to the proven physical injury, and it was in this case.

If I can give the example–

Ruth Bader Ginsburg:

But it’s so… in the same instruction the court says, you cannot award damages for cancer or any increased risk of cancer.

Richard J. Lazarus:

–Right, Your Honor, and that’s where the court got it actually–

Which is so contradictory.

Richard J. Lazarus:

–No.

No, it’s not, Your Honor.

What the court is doing here is exactly what courts do who adopt the separate disease rule which says, you can only recover for your present injuries now, and you can’t recover for future injuries.

The cancer itself, or the risk, is a future injury.

I was going to ask this.

What if one of these… if you prevail, and then one of these plaintiffs develops cancer, I assume he can go in and sue again?

Richard J. Lazarus:

That’s right, yes, for the cancer.

All right.

Is there some kind of a discount now for the fear that he–

Richard J. Lazarus:

No, no, just like there are separate causes of action for assault and battery.

Those are two different injuries.

The apprehension of something is a separate injury, and for these plaintiffs… the respondents… it is a current–

Anthony M. Kennedy:

–So the fear that you’re going to die of cancer is compensable before you get it, and it’s compensable again after you get it?

Richard J. Lazarus:

–No.

No.

The fear would not be… the cancer would be–

Anthony M. Kennedy:

Oh, I thought that the… you can recover for the fear in both cases under your theory.

Richard J. Lazarus:

–I… sorry, I wasn’t… if you’ve recovered once, you aren’t going to be allowed to recover again.

Anthony M. Kennedy:

So there would be a discount.

Richard J. Lazarus:

Yes.

If you’d brought the first–

Anthony M. Kennedy:

All right.

So then your first answer was, you changed it from–

Richard J. Lazarus:

–I’m sorry.

I thought your question was whether they could recover for cancer in the second one.

I didn’t understand you were referring to–

Anthony M. Kennedy:

–Do we have cases in the law where you give discounts for the first verdict?

Richard J. Lazarus:

–Your Honor, I’m not sure.

I don’t think this issue has come up, but I don’t think it’s a bar to the recovery here.

If I can refer to the radiation burn case that they referred to on page 2 of the reply brief–

Anthony M. Kennedy:

Well, but it indicates that maybe the recovery now is problematic.

Richard J. Lazarus:

–No, Your Honor, it’s not problematic, because we have a present injury, and where you have a present physical injury and you have a present emotional injury, an apprehension based on that, those are two types of injuries.

Sandra Day O’Connor:

Well, don’t you think that emotional fear ought to be one that is reasonable?

Richard J. Lazarus:

Yes.

Sandra Day O’Connor:

And a causal nexus there between the asbestosis and the fear?

Richard J. Lazarus:

Well, Your Honor, we do think there is a causal nexus–

Sandra Day O’Connor:

There should be, shouldn’t there?

Richard J. Lazarus:

–We… but we do think there’s a causal nexus here, and under the Restatement of Torts, all right, there are two different possible causal nexus under section 456 of the Restatement.

We actually think both of those are met, and that is, we think that the fear is caused by the physical injury.

It’s also caused by the same negligent conduct, but that is also a sufficiency of the evidence question, and what they are positing here is what the legal standard should be for physically injured plaintiffs and the recovery for related emotional stress harm.

An example, the Anderson case they cite on page 2 of their reply brief… a radiation burn case… which they say is distinct from this case.

It’s exactly the same as this case.

Stephen G. Breyer:

I think you’re right, and the dog bite cases support you, and the radiation cases support you, and if it’s cut-and-dried, as you say, then you win.

But if, when I look at all this stuff again, and I come to the conclusion… if I were to come to the conclusion that it wasn’t cut-and-dried, then I’m much more at sea, and I want you to see why.

One was the reason I gave, which is the risk problems, and the other, which is driving that, and I’d just like you to comment on this, is… is my concern that if we begin to compensate people for fear of small changes in risks when the law doesn’t… is open on the point… what will happen in the asbestos cases, and that was their initial point, is that we will… there’s $200 billion at stake, and the fund will run dry.

When the people who really get the cancer come into court, the cupboard will be bare, and I think that’s a serious policy problem, and it’s worrying me quite a lot, and that’s why I keep coming back to the open nature of this.

Richard J. Lazarus:

Your Honor, I think that the way to address that kind of issue is not to change decades of settled tort–

Stephen G. Breyer:

Well, I say, is there any answer–

Richard J. Lazarus:

–Yes, there is.

Stephen G. Breyer:

–other than the law that is clear–

Richard J. Lazarus:

There is.

There is–

Stephen G. Breyer:

–Yes.

Richard J. Lazarus:

–and what can be done in a case like that is, the defendant in that case can request a verdict form which requires the jury to allocate out, and that would allow a judge and an appellate, if appropriate, to review, and jury trials–

William H. Rehnquist:

Yes, but–

Richard J. Lazarus:

–trials, it happens all the time.

William H. Rehnquist:

–that isn’t automatic in most jurisdictions, Mr. Lazarus.

You can’t say “I want a special verdict”, and if the court says

“No, I don’t think I’ll give you one. “

that’s pretty much the end of it, isn’t it?

Richard J. Lazarus:

Your Honor, they didn’t request one here, but that is the proper way to address the issue, and that’s why you see–

Antonin Scalia:

I don’t understand what you’re saying.

What… allocate out… how does that… the money is still paid to this claimant, so that when the person who actually has cancer comes into court, this company is bankrupt.

Richard J. Lazarus:

–No, but Your Honor, it addresses Justice Breyer’s concern, and that is, it allows you to have a record upon which one can make sure that the jury hasn’t awarded a disproportionate amount based upon this one element, that you don’t have the tail wagging the dog.

Ruth Bader Ginsburg:

But what’s disproportionate?

Antonin Scalia:

What’s disproportionate?

Ruth Bader Ginsburg:

Suppose you take one plaintiff who is very nervous, very apprehensive, and for that person this increased risk–

–Right.

–is going to be much more aggravated.

Then, take another person who’s subject to the same risk, but has a thicker skin and says,

“Well, I’ll take it in stride. “

Richard J. Lazarus:

Well, Your Honor, it’s a reasonable apprehension.

This is why there’s an objective standard which applies to emotional recovery which doesn’t require the physical.

It has to meet an objective standard.

If someone has a very, very thick skin in tort law and they, in fact, as a result of that, don’t suffer damage, then they haven’t suffered damage.

If they have a very, very, very thin skin, and they suffer a lot of damage, then they don’t recover everything–

Ruth Bader Ginsburg:

When the person gets cancer–

Richard J. Lazarus:

–unless it’s a reasonable apprehension.

Ruth Bader Ginsburg:

–If a person gets cancer… and I take it you agree with the Government that such a person could get past, present, and future anxiety as part of pain and suffering, but suppose that person had earlier had asbestos, and then brings his claim for lung cancer, couldn’t… if you prevail today… the defendant say

“Well, at least for the apprehension in the past, you know you’re precluded, because you could have brought that claim when you got asbestosis? “

Richard J. Lazarus:

Your Honor, that might be possible.

That is not an issue which has been addressed here before this Court, and I haven’t looked at the issue preclusion there between the two.

What is clear is, if you have a current physical injury–

Ruth Bader Ginsburg:

It would be claim preclusion.

Richard J. Lazarus:

–Yes, right, and it’s not an issue which has been briefed here, because I think that when you have a case like this with a present physical injury, and you have a present emotional injury based on that, or as this Court has actually said in Metro-North, related to the physical injury, that’s sufficient.

I would like… if… to address the second issue, with the Court’s–

John Paul Stevens:

Before you do, may I ask one–

Anthony M. Kennedy:

–Let me ask one… please.

John Paul Stevens:

Just one quick question.

Do you agree with Mr. Phillips’ appraisal of the facts as… we should assume that the fear of cancer was the major element of damages?

Richard J. Lazarus:

–No, Your Honor.

All one has to assume here is that there was sufficient evidence that a reasonable jury could give some money based on fear of cancer, not that they had to, and not, certainly, that they gave $4.4 million, just sufficient evidence that a reasonable jury could have given a dollar, or some money.

That’s all that would be necessary.

The second… sorry.

Anthony M. Kennedy:

Was there testimony here that plaintiff A had heavy, or severe asbestosis and plaintiff B had mild, and was it based on any lung X-rays to show that this person’s very badly infected and the other wasn’t?

Richard J. Lazarus:

Yes, Your Honor.

Richard J. Lazarus:

There is… there’s lots of record evidence in this case to establish the asbestosis and how there may have been different degrees of asbestosis.

Anthony M. Kennedy:

All right, and since that’s dependent on dosage, why isn’t this a case in which we can apportion causation?

Richard J. Lazarus:

Your Honor, for very simple a reason.

The first reason is that we think that FELA itself on its face actually directs there to be joint and several liability when you have single injuries.

That’s our first argument, that FELA on its face answers the question, or that FELA provides that the railroad should be liable, quote,

“for such injury or death resulting in whole or in part from the negligence of the railroad. “

Anthony M. Kennedy:

Correct me if I’m wrong, is it a principle of tort law that if causation can be apportioned, that the injury is… that there is then several liability on that tort–

Richard J. Lazarus:

Your Honor–

Anthony M. Kennedy:

–or am I wrong about that?

Richard J. Lazarus:

–No.

The background principle of the common law of torts here is that there are… if there is a single injury, then there is joint and several liability unless there’s a reasonable basis for apportionment.

Our threshold argument–

Anthony M. Kennedy:

And since asbestosis is peculiarly related to dosage and exposure, why isn’t that a proper ground for apportionment here?

Richard J. Lazarus:

–Assuming that FELA doesn’t answer the question, let me answer it based upon the common law.

Because the plaintiff has the burden… sorry, the defendant… petitioner has the burden in that case to establish 1) what the doses were, and 2) what the dose relationship was, and the one thing we know here, the prototype example that Mr. Phillips referred to is Mr. Butler, and the fact is that Mr. Butler apparently worked for three months exposed to asbestos for petitioner, and for many, many years exposed to asbestos at other workplaces.

While we don’t know what the dose relationship is, Your Honor, we do know for the record the one thing the dose relationship isn’t is time.

One can’t compare one time to another.

Let me tell you why we know that.

On page 420 of the joint appendix, their expert testified that one is far more likely to contract asbestosis from high concentrations over a short period of time than low concentrations over a long period of time, and there’s a reason for that.

As Dr. Brody explains on page 87 of the joint appendix, the lungs can naturally rid themselves of the fibers at the low concentrations.

It’s only at the high concentrations… the macrophages.

It’s only at the high concentrations that the lungs can’t rid themselves of the fibers.

While we have no idea how low the concentrations levels were at these other workplaces, we do know how high the concentrations levels were at petitioner’s workplace, because Mr. Butler testified on page 249 of the joint appendix that during those three months, he worked in the location of petitioner’s workplace where the asbestos concentrations were at the highest.

Mr. Butler testified that he worked in the room where the engines were stripped of their fibers, and more fibers were placed on.

He testifies on page 249 he looks at these same pictures, which were trial exhibits… they’re reproduced in our brief.

He looks at these pictures and he says, yes, that’s the kind of room I worked in.

This is 249 and 250.

Yes, that’s the kind of exposure I faced.

William H. Rehnquist:

Well–

Richard J. Lazarus:

So we know he had the very high concentrations–

William H. Rehnquist:

–Well now, how do we know that?

You’re saying he worked in the place with the highest concentrations so far as the railroad is concerned, but how do we know how that compares with where he worked elsewhere?

Richard J. Lazarus:

–Your Honor, we have no idea, and they… because they never introduced or sought to introduce any evidence, but what we do know is that very low concentrations… here we can turn to the Rand report, which they filed with this Court… lodged with the Court… just two weeks ago.

The Rand report and the testimony of this case makes absolutely clear that in low concentration employment centers, at low concentration exposures, one is very unlikely to have any kind of physical injury, asbestosis or cancer ever develop, which is why there are hundreds and hundreds of thousands of plaintiffs, many of which come from low exposure, which, as the Rand report makes clear, is not likely to lead to any kind of disease.

We have no idea how low it was here.

We know how high it was here.

I have no doubt, Your Honor, that petitioner would have been very hard-pressed at trial to actually show what the doses were, and to show what the dose relationship is, but what I do know is, whatever their reason was at trial for never trying to introduce this evidence, and they never… if you looked at their motion, where they made the motion for this jury instruction, they never even remotely suggest what the basis for apportionment would be, but whatever their strategic reason for doing that at trial, what is absolutely clear is they are not allowed in the first instance to come to the United States Supreme Court and proffer newspaper articles, magazine articles, selected journal articles and try to argue that there is a reasonable basis for apportionment, or they’re entitled to a remand to litigate a issue which they failed to litigate in the first instance.

The simple truth, Your Honor, is that at trial in this case the respondents established all of their essential elements of their negligence cause of action.

They established their physical injury, and they received a jury award which certainly, compared to the jury awards that I see mentioned in the amicus briefs, is a jury award which seems relatively modest, and certainly a jury award which on its face doesn’t suggest that there was some outrageous amount given for reasonable fear of cancer.

John Paul Stevens:

May I just ask you, you say there’s no evidence of what the degree of exposure in other areas, and so forth and so on.

Didn’t they make any offers of proof with, or did they just the prove the time that they worked–

Richard J. Lazarus:

They really just proved the time.

They… we know the nature of the work, but what we don’t know, Your Honor–

John Paul Stevens:

–Well, but then that would be a question of the weight of that evidence, rather than whether they preserved the point.

Richard J. Lazarus:

–Well, Your Honor, I’m not… they never offer a basis of apportionment. We’d have to know, and the evidence at trial made clear, to know the dose and dose relationship you’d have to know the air flow rates.

John Paul Stevens:

The pathways of exposure–

At what point in the trial did it become clear, by a ruling of the trial judge, that they could not rely on the exposure in other areas?

Richard J. Lazarus:

–Your Honor, they were not denied this opportunity at trial to introduce the evidence with respect to the non-railroad employment, and you can see that because they actually did do some cross-examination, they did try to introduce the evidence of three months, they did try to refer to the other workplaces, they could have tried to introduce more evidence.

Anthony M. Kennedy:

Well, why was that relevant if there’s joint liability?

Richard J. Lazarus:

Well, we thought it was irrelevant, Your Honor, but they were clearly thinking about the possibility of requesting an apportionment instruction, but the fact is, they never laid out a reasonable basis.

If you look at the memorandum–

John Paul Stevens:

Oh, but they did request an instruction, didn’t they?

Richard J. Lazarus:

–They did request the instruction, but–

John Paul Stevens:

So the point was preserved.

Richard J. Lazarus:

–Right, but the trial court was correct in denying the instruction because they had not met their burden of proffering a reasonable basis for apportionment, and in the absence of that evidentiary basis, the trial court was absolutely correct in denying it.

This was a jury verdict, Your Honor, this was reached.

John Paul Stevens:

Oh, but that theory, then, is that several liability would have been appropriate if the evidence were sufficient?

Richard J. Lazarus:

Well, no, Your Honor.

Our threshold argument is that it would not… asbestosis, this is a classic individual injury.

There are many courts who have talked about this, and they said, well, in theory, asbestosis is dose-related.

David H. Souter:

With respect, Mr. Lazarus, isn’t your… the bottom line in this argument that this is simply not an issue in this case, because they didn’t provide a basis?

Richard J. Lazarus:

Yes, that’s absolutely right.

David H. Souter:

So you’re saying, forget it.

Richard J. Lazarus:

That’s right.

They had the burden and they simply didn’t meet their burden.

Ruth Bader Ginsburg:

And they say you had the burden.

Richard J. Lazarus:

Well, but it’s quite–

Anthony M. Kennedy:

It seems to me that argument goes to the weight of the evidence they offered, rather than to the… your legal position.

I may be missing something.

Richard J. Lazarus:

–Well, Your Honor, no, they have to as a matter of law, right, proffer some kind, and here there’s absolutely nothing–

Anthony M. Kennedy:

Well, but they did proffer… if I remember it, they did proffer evidence as to the time that these people worked in other areas where they were exposed to asbestos, didn’t they?

Richard J. Lazarus:

–There was some evidence–

Anthony M. Kennedy:

But you’re saying that’s not enough.

Richard J. Lazarus:

–There’s some evidence as to that, but in fact if you can look to their instruction they don’t even say what… that time is the relevant factor, and I think the evidence at trial shows that time is not even close to establishing what the dose relationship would be.

This is very complicated.

David H. Souter:

But aren’t you really saying that unless there’s an abuse of discretion on the part of the trial judge in refusing to send this to the jury, based on what you’ve just described, insufficiency of evidence on their part, that it’s not in the case for us?

Richard J. Lazarus:

That’s absolutely right, Your Honor.

Thank you.

Very well, Mr. Lazarus.

Mr. Phillips, you have two minutes remaining.

Carter G. Phillips:

Thank you, Mr. Chief Justice.

I want to be absolutely clear about the apportionment in this case.

We put in an instruction on apportionment based on a reasonable basis following Justice Kennedy’s analysis of the law, which says if there’s a reasonable basis to apportion, you do that.

The trial judge did not reject that on the basis of insufficient evidence.

What he said at page 179, volume 9 of the transcript is, if you’ve got a joint tort-feasor, that tort-feasor is liable for all of the injuries.

He said it as a matter of law.

It’s joint and several liability.

There is no apportionment.

That’s the ruling we challenged.

That’s the legal issue before this Court.

Carter G. Phillips:

The second question, then, with your leave, is to–

Anthony M. Kennedy:

Well, but should we adopt your position if it’s as difficult to show this separate causation as your brother argues?

Carter G. Phillips:

–Well, Dean Prosser said from day one it’s always going to be difficult to apportion, but that’s no reason not to have the jury undertake to apportion.

There are lots of decisions that juries make that are very hard to make, but the better rule is to apportion, because that’s the fair outcome that will arise in these cases.

With respect to the fear of cancer damages, the key to this case, it seems to me, is just how big a gatekeeper function the fact of asbestosis can be, and my… the argument is, asbestosis is extraordinarily easy to diagnose.

There are currently 5,500 cases under FELA in West Virginia.

Every single one of them involves a claim of asbestosis.

Every single one of them will be supported by an expert.

What you get is, that’s not a gatekeeper.

Those cases are going to come in, and then you’re going to have exactly the kinds of evidence you had in this case, I’m afraid of cancer, give me whatever you think is the right number.

That is the essence of unpredictable and unlimited damages.

This Court declined to allow that under FELA in Buckley.

It should decline to allow that under FELA in this case as well.

If there are no questions, I’ll reserve–

William H. Rehnquist:

Thank you, Mr. Phillips.

The case is submitted.