In law school I always suspected that one way to differentiate people who belong there from people—like myself—just there because of the Grisham books, was by asking fellow first-year students to define “torts.” It took until the end of my first semester to even comprehend that every single torts case was about some guy falling down stairs, or off a carnival ride, or being bonked on the head by some clock or severed leg. (On the final exam, all four will happen at once.) But how these hundreds of accident cases were then slotted into different chapters of the torts textbook—”proximate cause,” “contributory negligence,” “products liability,” “joint and several liability”—always seemed somewhat accidental in itself. The tort of torts, if you will. What I came away with—forgive me—is that “torts” = “someone gets hurt + someone must pay.”
I say this because today’s case in the Supreme Court is about railroad workers who sue their employer for asbestos exposure in the ‘60s. They win millions of dollars because they’re afraid that since they have asbestosis now, they may get cancer someday. And even though some of these plaintiffs smoked two packs of cigarettes a day for much of their lives, and one was exposed to the railroad’s asbestos for only three months (but exposed to it as a pipe fitter for 33 years), and some had only mild lung problems, the law of torts rides in on its white horse to make sure that someone must pay. The case is Norfolk & Western Railway Co. v. Ayers,and there’s no appellate opinion because it’s on appeal directly from the West Virginia trial court.
The main facts are not in dispute: In 1998 six retired railroad employees sued the Norfolk & Western Railway Co. under the Federal Employers’ Liability Act, which gives railroad employees the right to recover from injuries caused, in part or in whole, by a railroad’s negligence. They all have asbestosis, none of them have cancer, but—since asbestosis is linked to an increased likelihood of lung cancer—they are all afraid of getting cancer. At trial, a jury found they were all exposed to asbestos while working for Norfolk & Western and awarded the six plaintiffs pain and suffering damages of around a million dollars each, which amount was reduced somewhat in the cases of some of the pack-a-day smokers.
There are two main issues in this case: The first is how plaintiffs suffering from asbestosis can recover emotional distress damages for their fear of cancer without any physical evidence of cancer. The second is how the railroad can be made to pay all the plaintiffs’ damages even where other jobs or factors may have contributed equally or more to their asbestosis. Today the court evinces far more interest in the former question. They evince even more interest in interrupting one another (and counsel). If I were arguing today I’d be scared of these people. Of course I’ll probably never get to argue a case before the court because, increasingly, the same eight appellate lawyers argue every single case. They are like the Supreme Court’s own Harlem Globetrotters.
The always-impressive Carter Phillips, arguing his 35th case before the high court, makes the rare mistake of overstating it in the first minute, claiming that the “primary basis” of the massive award was the plaintiffs’ fear of cancer. Justices Stephen Breyer and John Paul Stevens body check him on each side, insisting that there’s nothing in the record to suggest that the fear of cancer claim was more than one of several meritorious claims. Justice Ruth Bader Ginsburg blames the railroad for not seeking to have the damage amounts broken down in the trial court (turns out the railroad made quite a lot of mistakes at trial) and then Phillips argues that pain and suffering damages can be associated only with existing injuries (i.e., the asbestosis) and not with hypothetical future diseases (i.e., lung cancer).
Phillips tangles with Justices Antonin Scalia and David Souter about why a diagnosis of asbestosis—which is frequently linked to a diagnosis of cancer—wouldn’t generate a reasonable fear of cancer in a plaintiff, even if the asbestosis itself doesn’t cause the cancer. “There is an undenied statistical correlation between asbestos and developing cancer, isn’t there?” asks Souter.
Here is where my Psych 110 professor, the smashing Richard Gerrig, invariably pops out and reminds the class that the first rule of psychology is that “correlation is not causation.” Just because black turtlenecks correlate with undergraduate poetesses does not mean that being a poet causes one to wear black. Or that wearing black causes one to write poems. But the justices continue to question Phillips about why the plaintiffs’ fear of cancer based on their current diagnosis is unreasonable. His response is that once these plaintiffs actually do contract cancer, they are free to return to court and sue for pain and suffering then.
David Salmons, an assistant to the solicitor general who looks more linebacker than lawyer, argues for the Justice Department, which sides with the railroads. Salmons gets tangled up in Stevens, who wants to know if this case would come out different if asbestosis itself caused cancer. Salmons’ line is that these are “separate diseases, requiring separate causes of action.”
Richard Lazarus represents the scared railroad employees. The issue on which he is terrific is that whatever is wrong with this case is the fault of the railroad, which didn’t advance the right defenses at trial. He manages to persuade several justices that there’s no real basis for their even hearing this case. But Breyer argues that the issue of how removed the fear of cancer is from a present diagnosis of asbestosis “is at least open.”
“It’s open and shut,” replies Lazarus.
But Breyer wants to crunch numbers. “If each of us in this room has a one in five chance that he will die of cancer, and the plaintiffs in this case have a one in four chance … isn’t that intangible, hard to measure?” (And also incredibly depressing?) Rehnquist wants to know what happens with a plaintiff who should have lived to age 75 but only lives to 72. “Is that recoverable?” Ginsburg interrupts Rehnquist to ask whether “fear without a physical manifestation” isn’t “too easy to make up” (as in, “Hey, for a million dollars I could be scared too!”).
Justice Sandra Day O’Connor insists that one’s fear should be “reasonable and have a causal nexus” to the harm being litigated. And Breyer lays out the core policy problem: “If we compensate people for their fear of small changes in risks, the fund will run dry. When people who really get cancer come to court the cupboard will be bare. This is a serious problem and it’s worrying me quite a bit.” Finally, the court quizzes Lazarus on what evidence the railroad put before the jury of other possible contributors to the plaintiffs’ asbestosis. He responds that the railroad never tried to get that evidence in at trial, never proffered a formula for apportioning liability between other contributors and the railroad, and that the “relatively modest” (???) jury awards cannot now be revisited by the court.
Carter Phillips gives one of his masterful Meadowlark Lemon 90-second rebuttals, but it looks as though his warning—that the 5,500 asbestos cases under FELA will all turn into “I’m afraid of cancer” claims—may not sway enough justices to prevail. Which suggests that my basic theory of torts—”someone is hurt, someone must pay”—will morph into a new torts theory: “Someone is scared, someone must pay.”
I’m scared, too. I’m scared of snakes and lightning and of chemical and biological warfare and Ann Coulter. I’m scared I’ll die never having hugged Justice Souter and of running out of conditioner. I think my employer is responsible for at least some of these fears. Certainly the warfare and Coulter ones. I think I’ll sue Slate.