Norfolk & Western Railway Company v. Ayers

PETITIONER: Norfolk & Western Railway Company
LOCATION: United States Court of Appeals for the Ninth Circuit

DOCKET NO.: 01-963
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: State trial court

CITATION: 538 US 135 (2003)
ARGUED: Nov 06, 2002
DECIDED: Mar 10, 2003

Carter G. Phillips - Argued the cause for the petitioner
David B. Salmons - On behalf of the United States, as amicus curiae, supporting the petitioner
Richard J. Lazarus - Argued the cause for the respondents

Facts of the case

Six employees of the Norfolk and Western Railroad Company contracted asbestosis, a disease caused by exposure to asbestos. The employees brought suit under the Federal Employers' Liability Act (FELA), including a damages request for pain and suffering caused by a fear of cancer (which they had not yet contracted). The district court ruled for the plaintiffs. The court of appeals denied discretionary review.


Can an employer be held liable for pain and suffering caused by a disease that has not yet been contracted? And are railroad companies liable for full damages under FELA even if the actions or negligence of other parties contributed to the damage inflicted?

Media for Norfolk & Western Railway Company v. Ayers

Audio Transcription for Oral Argument - November 06, 2002 in Norfolk & Western Railway Company v. Ayers

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

William H. Rehnquist:

The opinion of the Court in No. 01-963, Norfolk and Western Railway Company versus Ayers will be announced by Justice Ginsburg.

Ruth Bader Ginsburg:

This case arises under the Federal Employers' Liability Act in my day called the FELA, a 1908 law still enforced requiring railroads to compensate their workers for injuries caused in whole or in part by the railroads negligence.

The six plaintiffs in the suit before us, respondent's here, are former employees of the Norfolk and Western Railway Company; each suffers from asbestosis, a chronic disease caused by prolonged exposure to the toxic substance asbestos.

We resolved in today's decision, two questions important to the application of the FELA: First, when a worker is afflicted with asbestosis caused by exposure to asbestos while employed by the railroad, the worker can recover for asbestosis-related pain and suffering.

The question we address is whether that recovery may include damages for fear of developing an asbestos-induced cancer.

The second question concerns apportionment of damages when others not before the Court may have contributed to the worker's injury, for example, prior or subsequent employer or asbestos manufacturers or suppliers.

Is the railroad answerable to the employee or is it immediately entitled to a division of damages limiting its liability to a proportionate share?

The West Virginia State Court in which this case was tried and initially reviewed ruled for the workers and against the railroad on both questions as do we.

Responding to the first question, we followed the path marked by our prior decisions which in turn rest on common law principles and developments.

A worker exposed to asbestos remains symptom free, we recently held, may not recover damages for apprehending that he may someday suffer an asbestos-induced disease, but we have distinguished from fear or anxiety not tied to a present affliction, another category that is tied, fear or anxiety about future harm stemming from an already manifested physical injury or illness.

Emotional distress, falling in that latter category we have observed it is compensible.

Adhering to that framework we hold that a railroad worker suffering from asbestosis can recover for the heightened anxiety he experiences because of his vulnerability to a more dread disease but it will not suffice precaution merely to allege such distress that it is the complainant's burden to prove that the asserted fear is genuine and serious.

On this issue, question 1, the Court is not unanimous.

Justice Kennedy has filed an opinion dissenting on question 1 joined by the Chief Justice, Justice O'Connor, and Justice Breyer; Justice Breyer has also filed a separate dissenting opinion on the first question.

On question 2, the opinion is unanimous.

The FELA's expressed terms allow a worker to recover in full from a railroad whose negligence alone or jointly caused an injury.

The FELA's text moreover is reenforced by the Act's overarching purpose and by consistent judicial applications.

The statute was designed to shift part of the human cost of railroading from employees to their employer.

It accords with that design to require the employer to bear the burden first to identify other responsible parties and then to demonstrate in the claim for contribution that some of the cost of the injury should be spread to them.