Asbestosis inflames and scars lungs. It causes shortness of breath. And it increases the risk, and fear, of lung cancer.
Yesterday, the U.S. Supreme Court, in a summary decision, reversed a $5 million verdict and judgment for an asbestosis victim, Thurston Hensley. Mr. Hensley contracted the disease from breathing asbestos fibers during 33 years of work as an electrician for a railroad, CSX Transportation.
The error? CSX asked for an instruction on fear-of-cancer damages. It would have told the jury not to award such damages unless it found that Mr. Hensley worried about getting cancer "genuine[ly] and serious[ly]". The 7-2 Court deemed the trial court's refusal to give the instruction "clear error". The Court cited "the volume of pending asbestosis claims" and "the danger that a jury, without proper instructions, could award emotional distress damages based on slight evidence of a plaintiff's fear of conracting cancer." CSX Transp., Inc. v. Hensley , No. 08-1034 (U.S. June 1, 2009).
Justice Per Curiam wrote the Court's opinion. Justices Stevens and Ginsburg added separate dissents.