High Court Rules On FELA Asbestos Case

By Steven Brostoff

NU Online New Service, March 10, 2:45 p.m. EST?The Federal Employers’ Liability Act allows a worker to collect 100 percent of damages relating to asbestos exposure from an employer who contributed to the injury, even if the employer is only minimally to blame, according to a decision handed down by the U.S. Supreme Court today.

In the case of Norfolk & Western v. Ayers, the court ruled that FELA, by its express terms, does not provide for apportionment of damages.

FELA provides a federal cause of action to railroad employees who are injured due to their employer’s negligence.

“Nothing in the statutory text instructs that the amount of damages payable by a liable employer bears reduction when the negligence of a third party also contributed in part to the injury-in-suit,” the high court said.

Moreover, the court said, FELA allows employees exposed to asbestos to file claims based on mental anguish caused by the fear that they might contract cancer.

Claims for pain and suffering associated with a physical injury are traditionally compensable, the court said. Once found liable for any bodily harm, the court said, a defendant is also liable for emotional disturbances resulting from that harm, even if the plaintiff never contracts cancer.

Gary Karr, a representative of the Washington-based American Insurance Association, which filed a brief in the case, said that perhaps the most noteworthy aspect of the decision is that both the majority opinion, written by Justice Ruth Bader Ginsburg, and a partial dissent, written by Justice Anthony M. Kennedy, stressed the need for Congress to step in and resolve the asbestos litigation crisis.

Mr. Karr noted that AIA supports legislation establishing medical criteria defining what constitutes an asbestos-related disease.