NU Online News Service, June 1, 4:27 p.m. EDT

WASHINGTON–Railroad workers who seek damages for mental anguish out of fear they will get cancer from exposure to asbestos must show that "fear is genuine and serious," the Supreme Court ruled today.

The Supreme Court decision reversed a ruling by a lower court and by the Tennessee Court of Appeals and sent the case back to Tennessee based on the court decision.

The decision in CSX Transportation Inc. v. Thurston Hensley, No. 08-1034, was a rare unanimous decision by the High Court, and one in which no judge took specific credit for the language in the ruling.

The Supreme Court cited an earlier 2003 decision in Norfolk & Western R. Co. v. Ayers, which held that mental anguish damages are available in certain Federal Employers Liability Act (FELA) cases. FELA is the law passed by Congress in 1908 which provides a legal remedy for injured railroad workers rather than workers' compensation..

But, the court said, the trial court judge was wrong in not instructing the jury about whether the fear was "genuine and serious."

"We decline to blur, blend, or reconfigure our FELA jurisprudence in the manner urged by the petitioner; instead, we adhere to the clear line our recent decisions delineate," the court said in its opinion.

In the case just decided, Thurston Hensley, an electrician employed by CSX in Tennessee, sued CSX in Tennessee state court.

Mr. Hensley alleged that the railroad negligently caused him to contract asbestosis, a noncancerous scarring of lung tissue caused by long-term exposure to asbestos.

Mr. Hensley sought pain-and-suffering damages from CSX based on, among other things, his fear of developing lung cancer in the future.

A jury awarded him $5 million after two hours deliberation.

The trial court refused to instruct the jury before the verdict, as requested by the defendant company, that it must consider whether the fear of cancer was "genuine and serious," and the Tennessee Supreme Court affirmed that ruling.

Mark Behrens, a partner at Shook, Hardy & Bacon L.L.P., said the decision was very important.

"Today shut the door on a potential flood of flimsy or fraudulent asbestos cases brought by railroad worker plaintiffs under the Federal Employers' Liability Act (FELA), a statute which provides a 'tort substitute' for worker compensation in the railroad industry," he said.

He added that the decision reaffirmed that a FELA plaintiff seeking emotional harm damages for fear of developing cancer in the future must prove that the fear is "genuine and serious."

Mr. Behrens submitted a friend of the court brief at the request of several property-casualty insurance industry trade groups and other trade groups representing industry, that was accepted by the court as part of its decision returning the case to lower courts for further proceedings.

In their brief, lawyers for the trade groups argued that the lower court, "which holds that a defendant has no right to a 'genuine and serious fear' jury instruction, is not only inconsistent with this court's holding in" a 2003 case, "but also ignores the important policy concerns which guided this court's decisions" in two prior cases.

In his comments, Mr. Behrens said that, in summarily reversing the Tennessee courts, the U.S. Supreme Court said the ruling below "conflicts with [a prior decision]" and that " the trial court should have given the substance of the requested instructions."

Mr. Behrens said the decision is important for a number of reasons.

"First and most obviously, the opinion will help protect railroad defendants from potentially countless thousands of junk lawsuits asking for money damages without a showing that the fear of cancer is "genuine and serious," he said.

Second, he said the court noted, "once again, the difficulties posed by the 'elephantine mass of asbestos cases' and confirmed that a 'delicate balance' must be drawn between plaintiffs and defendants."

He added, "The court appreciated that allowing weak or unmeritorious fear of cancer claims could swamp the courts, delay recoveries for claimants with serious conditions, bankrupt defendants, and jeopardize recoveries for cancer victims."

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