Appeal on Norfolk Southern Asbestos Damages Heard ------------------------------------------------- Published November 08, 2002 The US Supreme Court returned to the asbestos litigation crisis on Wednesday, questioning whether workers can recover damages from an employer for fear of developing asbestos-related cancer. The justices heard arguments by Carter Phillips, a lawyer for Norfolk Southern Corp., who challenged the $5.8 million award to six retired railway workers with asbestosis, a potentially deadly lung disease. Mr. Phillips said the Supreme Court in a 1997 ruling referred to the asbestos litigation crisis, and told the justices the problem has become worse since then, with a wave of new personal injury lawsuits. He cited a recent study that asbestos-related claims have been brought against 6,000 defendants and seek more than $200 billion in damages. Mr. Phillips said the case illustrated the existing problems. At issue was whether a federal law governing railroad employee suits allows damages for fear of developing cancer, when the plaintiff does not have the disease or any of its symptoms. He said 5,500 cases involving asbestosis have been filed under the law in West Virginia alone, and warned that more suits would be brought if the damages were upheld for those who fear they may develop cancer. "That is the essence of unpredictable and unlimited damages," Mr. Phillips said. He urged the court to adopt a more restrictive view of the federal law to prevent "unlimited liability." Asbestos was widely used for fireproofing and insulation until the 1970s, when scientists concluded that inhaled fibers could be linked to cancer and other diseases. The ever-increasing number of personal injury lawsuits has cost more than $54 billion in settlements so far and has driven more than 60 US companies into bankruptcy. The six workers, who brought suit in West Virginia, claimed the railroad failed to provide them with a reasonably safe workplace because of their exposure to asbestos, which can cause cancer. Several justices closely questioned Mr. Phillips on why damages could not be awarded under the traditional standards for pain and suffering and for emotional distress. "The reason these people are worried is that they have asbestosis and people with asbestosis have a greater probability of developing cancer," Justice David Souter said. Justice Sandra Day O'Connor told Mr. Phillips a minority of court jurisdictions require a link between cancer and the injury suffered. "Are you suggesting that we should adopt it?" she asked. The Justice Department supported Phillips. Assistant Solicitor General David Salmons said allowing damages for the anxiety of getting cancer would "frustrate the system" and "harm those who develop cancer later." Richard Lazarus, representing the workers, said the damages should be allowed. However, Justices Stephen Breyer and Anthony Kennedy questioned the implications of that position. Judge Kennedy asked whether a worker who wins damages for fear of getting cancer could later sue again after actually developing cancer, while Judge Breyer expressed concern that awarding damages to people with an increased risk of getting the disease would mean less money would be available for those who get cancer. "It's $200 billion at stake, and the fund will run dry," he said. The court's decision is expected early next year.