NORFOLK & WESTERN RAILWAY CO. v. AYERS et al.

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135 OCTOBER TERM, 2002
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NORFOLK & WESTERN RAILWAY CO. v. AYERS
et al.
certiorari to the circuit court of kanawha county,
west virginia
No. 01–963. Argued November 6, 2002—Decided March 10, 2003
Alleging that petitioner Norfolk & Western Railway Company (Norfolk)
had negligently exposed them to asbestos and thereby caused them to
contract the occupational disease asbestosis, respondents, six former
Norfolk employees (asbestosis claimants), brought this suit in a West
Virginia state court under the Federal Employers’ Liability Act (FELA
or Act). Section 1 of the FELA provides: “Every common carrier by
railroad while engaging in [interstate commerce], shall be liable in dam-
ages to any person suffering injury while he is employed by such carrier
in such commerce . . . for such injury . . . resulting in whole or in part
from the [carrier’s] negligence.” As an element of their damages, the
asbestosis claimants sought recovery for mental anguish based on their
fear of developing cancer. The trial court instructed the jury that a
plaintiff who demonstrated a reasonable fear of cancer related to proven
physical injury from asbestos was entitled to compensation for that fear
as a part of the damages awardable for pain and suffering. The court
also instructed the jury not to reduce recoveries because of nonrailroad
exposures to asbestos, so long as the jury found that Norfolk was negli-
gent and that dust exposures at Norfolk contributed, however slightly,
to each plaintiff ’s injuries. The court rejected Norfolk’s proposed in-
structions, which would have (1) ruled out damages for fear of cancer
unless the claimant proved both an actual likelihood of developing cancer
and physical manifestations of the alleged fear, and (2) required the jury
to apportion damages between Norfolk and other employers alleged to
have contributed to an asbestosis claimant’s disease. The jury returned
damages awards for each claimant. The Supreme Court of Appeals of
West Virginia denied discretionary review.
Held:
1. Mental anguish damages resulting from the fear of developing can-
cer may be recovered under the FELA by a railroad worker suffering
from the actionable injury asbestosis caused by work-related exposure
to asbestos. Pp. 145–159.
(a) The trial judge correctly stated the law when he charged the
jury that an asbestosis claimant, upon demonstrating a reasonable fear
of cancer stemming from his present disease, could recover for that fear

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136 NORFOLK & WESTERN R. CO. v. AYERS
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as part of asbestosis-related pain and suffering damages. In so ruling,
this Court follows the path marked by its decisions in Consolidated Rail
Corporation v. Gottshall, 512 U. S. 532, and Metro-North Commuter R.
Co. v. Buckley, 521 U. S. 424. Gottshall and Metro-North describe two
categories of claims for emotional distress damages: Stand-alone emo-
tional distress claims not provoked by any physical injury, for which
recovery is sharply circumscribed by the common-law zone-of-danger
test; and emotional distress claims brought on by a physical injury, for
which pain and suffering recovery is permitted. This case is properly
placed in the emotional distress stemming from a physical injury cate-
gory. The parties agree that the claimants suffer from asbestosis, a
cognizable injury under the FELA. As Metro-North plainly indicates,
when fear of cancer “accompanies a physical injury,” pain and suffering
damages may include compensation for that fear. E. g., 521 U. S., at
430. The Court adheres to the clear line its recent decisions delin-
eate. Pp. 145–148.
(b) Unlike stand-alone claims for negligently inflicted emotional dis-
tress, claims for pain and suffering associated with a physical injury are
traditionally compensable. By 1908, when the FELA was enacted, the
common law had evolved to encompass apprehension of future harm as
a component of pain and suffering. In recent years, of the many courts
that have ruled on the question presented here, a clear majority sustain
recovery. Arguing against this trend, Norfolk and its amici assert that
the asbestosis claimants’ alleged cancer fears are too remote from asbes-
tosis to warrant inclusion in their pain and suffering awards. Amicus
United States refers to the “separate disease rule,” under which most
courts have held that the statute of limitations runs separately for each
asbestos-related disease. Because the asbestosis claimants may bring a
second action if cancer develops, the Government argues, cancer-related
damages are unwarranted here. The question, as the Government
frames it, is not whether the asbestosis claimants can recover for fear of
cancer, but when. But those claimants did not seek, and the trial court
did not allow, discrete damages for their increased risk of future cancer.
Instead, they sought damages for their current injury, which, they al-
lege, encompasses a present fear that the toxic exposure causative of
asbestosis may later result in cancer. The Government’s “when, not
whether,” argument has a large gap; it excludes recovery for any fear
experienced by an asbestosis sufferer who never gets cancer. To be
compensable as pain and suffering, Norfolk further urges, a mental or
emotional harm must have been “directly brought about by a physical
injury.” This argument elides over a key connection between Norfolk’s
conduct and the damages the asbestosis claimants allege as part of their
pain and suffering: Once found liable for any bodily harm, a negligent

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actor is answerable in damages under the common law for emotional
disturbance resulting from that harm or from the conduct which causes
it. Given the acknowledgment by Norfolk’s expert that asbestosis puts
a worker in a heightened risk category for asbestos-related lung cancer,
as well as the undisputed testimony of the asbestosis claimants’ expert
that some ten percent of asbestosis sufferers have died of mesothelioma,
the claimants would have good cause for increased apprehension about
their vulnerability to cancer. Although Metro-North stressed that
holding employers liable to workers merely exposed to asbestos would
risk “unlimited and unpredictable liability,” 521 U. S., at 435, that deci-
sion sharply distinguished exposure-only plaintiffs from those who suf-
fer from a disease, and stated, unambiguously, that the common law
permits emotional distress recovery for the latter category, e. g., id., at
436. The categorical exclusion of exposure-only claimants reduces the
universe of potential claimants to numbers neither “unlimited” nor “un-
predictable,” for, of those exposed to asbestos, only a small fraction will
develop asbestosis. Pp. 148–157.
(c) The Court affirms the qualification of an asbestosis sufferer to
seek compensation for fear of cancer as an element of his asbestosis-
related pain and suffering damages, but with an important reservation.
It is incumbent upon the complainant to prove that his alleged fear is
genuine and serious. In this case, proof directed to that matter was
notably thin, and might well have succumbed to a straightforward
sufficiency-of-the-evidence objection, had Norfolk so targeted its attack.
But Norfolk, instead, sought categorical exclusion of cancer-fear dam-
ages for asbestosis claimants. This Court, moreover, did not grant re-
view to judge the sufficiency of the evidence or the reasonableness of
the damages awards. Pp. 157–159.
2. The FELA’s express terms, reinforced by consistent judicial appli-
cations of the Act, allow a worker to recover his entire damages from a
railroad whose negligence jointly caused an injury, thus placing on the
railroad the burden of seeking contribution from other potential tort-
feasors. Pp. 159–166.
(a) The statutory language supports the trial court’s understanding
that the FELA does not provide for apportionment of damages between
railroad and nonrailroad causes. Section 1 of the Act makes common
carrier railroads “liable in damages to any person suffering injury while
he is employed by such carrier in such commerce . . . for such injury . . .
resulting in whole or in part from the negligence of such carrier.” 45
U. S. C. § 51. The claimants here suffer from asbestosis (an “injury”),
which is linked to their employment with Norfolk and “result[ed] in
whole or in part from . . . negligence” by Norfolk. Norfolk is therefore
“liable in damages . . . for such injury.” Nothing in the statutory text

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138 NORFOLK & WESTERN R. CO. v. AYERS
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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. Norfolk maintains that the statutory language
conveying that a railroad is liable only for injuries an employee sustains
“while he is employed by such carrier” makes it clear that railroads are
not liable for employee injuries resulting from outside causes. Placed
in context, however, the clause on which Norfolk relies clarifies that the
FELA’s reach is limited to injuries sustained by railroad employees
while the employees are themselves engaged in interstate commerce;
the provision does not speak to cases in which an injury has multiple
causes, some related to railroad employment and others unrelated to
that employment. Moreover, interpreting § 1 to require apportionment
would put that provision in tension with the rest of the statute. Sev-
eral of the FELA’s provisions expand a railroad’s liability by abolishing
common-law defenses that limited employees’ ability to recover against
their employers. And although the Act expressly directs apportion-
ment of responsibility between employer and employee based on
comparative fault, it expressly prescribes no other apportionment.
Pp. 159–161.
(b) Norfolk’s view also runs counter to a century of FELA jurispru-
dence. No FELA decision made by this Court so much as hints that
the statute mandates apportionment of damages among potentially lia-
ble tortfeasors. Also significant, there is scant lower court authority
for the proposition that the FELA contemplates apportionment, and
this Court has repeatedly stated that joint and several liability is the
traditional rule, see, e. g., The “Atlas,” 93 U. S. 302, 315. Norfolk con-
tends that the modern trend is to apportion damages between multiple
tortfeasors. The state of affairs when the FELA was enacted, how-
ever, is the more important guide. See, e. g., Monessen Southwestern
R. Co. v. Morgan, 486 U. S. 330, 336–339. At any rate, many States
retain full joint and several liability, even more retain it in certain cir-
cumstances, and most of the recent changes away from the traditional
rule have come through legislative enactments rather than judicial de-
velopment of common-law principles. Congress, however, has not
amended the FELA. Finally, reading the FELA to require apportion-
ment would handicap plaintiffs and could vastly complicate adjudica-
tions. Once an employer has been adjudged negligent with respect to
a given injury, it accords with the FELA’s overarching purpose to re-
quire the employer to bear the burden of identifying other responsible
parties and demonstrating that some of the costs of the injury should
be spread to them. Pp. 161–166.
Affirmed.

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Ginsburg, J., delivered the opinion for a unanimous Court with respect
to Parts I, II, and IV, and the opinion of the Court with respect to Part III,
in which Stevens, Scalia, Souter, and Thomas, JJ., joined. Kennedy,
J., filed an opinion concurring in part and dissenting in part, in which
Rehnquist, C. J., and O’Connor and Breyer, JJ., joined, post, p. 166.
Breyer, J., filed an opinion concurring in part and dissenting in part,
post, p. 182.
Carter G. Phillips argued the cause for petitioner. With
him on the briefs were Stephen B. Kinnaird, Fred Adkins,
Rodney L. Baker II, and Laura D. Hunt.
David B. Salmons argued the cause pro hac vice for the
United States as amicus curiae urging reversal. With him
on the brief were Solicitor General Olson, Assistant Attor-
ney General McCallum, Deputy Solicitor General Clement,
Anthony J. Steinmeyer, and Peter R. Maier.
Richard J. Lazarus argued the cause for respondents.
With him on the brief were James A. McKowen, James H.
Rion, Jr., and Lawrence M. Mann.*
*Briefs of amici curiae urging reversal were filed for the Association
of American Railroads by Daniel Saphire, Randall A. Jordan, Mary
Helen Moses, and William A. Brasher; for the American Insurance Asso-
ciation by Seth P. Waxman, Edward C. DuMont, Kimberly Parker, Craig
A. Berrington, and Lynda S. Mounts; for the Chamber of Commerce of
the United States by Evan M. Tager, Eileen Penner, Miriam R. Nemetz,
and Robin S. Conrad; and for Trial Lawyers for Public Justice by Arthur
H. Bryant, Brent M. Rosenthal, Misty A. Farris, and Kevin D. McHargue.
Briefs of amici curiae urging affirmance were filed for the State of
West Virginia et al. by Darrell V. McGraw, Jr., Attorney General of West
Virginia, Frances Ann Hughes, Managing Deputy Attorney General, Silas
Taylor, Senior Deputy Attorney General, and Robert Kono, Acting Attor-
ney General of Guam, and by the Attorneys General for their respective
States as follows: Bill Lockyer of California, M. Jane Brady of Delaware,
Thomas J. Miller of Iowa, G. Steven Rowe of Maine, J. Joseph Curran,
Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch of Min-
nesota, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana,
Philip T. McLaughlin of New Hampshire, Patricia A. Madrid of New
Mexico, Eliot Spitzer of New York, Roy Cooper of North Carolina, W. A.
Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Sheldon White-
house of Rhode Island, and William H. Sorrell of Vermont; and for the

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140 NORFOLK & WESTERN R. CO. v. AYERS
Opinion of the Court
Justice Ginsburg delivered the opinion of the Court.
The Federal Employers’ Liability Act (FELA or Act), 35
Stat. 65, as amended, 45 U. S. C. §§ 51–60, makes common
carrier railroads liable in damages to employees who suffer
work-related injuries caused “in whole or in part” by the
railroad’s negligence. This case, brought against Norfolk &
Western Railway Company (Norfolk) by six former employ-
ees now suffering from asbestosis (asbestosis claimants), pre-
sents two issues involving the FELA’s application. The first
issue concerns the damages recoverable by a railroad worker
who suffers from the disease asbestosis: When the cause of
that disease, in whole or in part, was exposure to asbes-
tos while on the job, may the worker’s recovery for his
asbestosis-related “pain and suffering” include damages for
fear of developing cancer?
The second issue concerns the extent of the railroad’s lia-
bility when third parties not before the court—for example,
prior or subsequent employers or asbestos manufacturers or
suppliers—may have contributed to the worker’s injury. Is
the railroad answerable in full to the employee, so that pur-
suit of contribution or indemnity from other potentially liable
enterprises is the railroad’s sole damages-award-sharing re-
course? Or is the railroad initially entitled to an apportion-
ment among injury-causing tortfeasors, i. e., a division of
American Federation of Labor and Congress of Industrial Organizations
et al. by Jonathan P. Hiatt, Robert Alexander, Leon Dayan, and Lau-
rence Gold.
Briefs of amici curiae were filed for American Law Professors by Ned
Miltenberg; for the American Public Health Association by Scott L. Nel-
son, David C. Vladeck, and Brian Wolfman; for the Brotherhood of Loco-
motive Engineers by William G. Jungbauer and Keith A. Queensen; for
the Coalition for Asbestos Justice, Inc., et al. by Victor E. Schwartz, Mark
A. Behrens, Walter E. Dellinger III, Pamela A. Harris, Jan S. Amund-
son, David F. Zoll, Donald D. Evans, and David T. Deal; for the United
Transportation Union by Clinton J. Miller III; and for the Washington
Legal Foundation by Griffin B. Bell, Jeffrey S. Bucholtz, Daniel J. Popeo,
and Richard A. Samp.

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damages limiting the railroad’s liability to the injured em-
ployee to a proportionate share?
In resolving the first issue, we follow the line drawn by
Metro-North Commuter R. Co. v. Buckley, 521 U. S. 424
(1997), a decision that relied on and complemented Consoli-
dated Rail Corporation v. Gottshall, 512 U. S. 532 (1994).
In Metro-North, we held that emotional distress damages
may not be recovered under the FELA by disease-free
asbestos-exposed workers; in contrast, we observed, workers
who “suffe[r] from a disease” (here, asbestosis) may “recover
for related negligently caused emotional distress.” 521
U. S., at 432. 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 de-
lineate. Accordingly, we hold that mental anguish damages
resulting from the fear of developing cancer may be recov-
ered under the FELA by a railroad worker suffering from
the actionable injury asbestosis caused by work-related ex-
posure to asbestos.
As to the second issue, we similarly decline to write
new law by requiring an initial apportionment of damages
among potential tortfeasors. The FELA’s express terms,
reinforced by consistent judicial applications of the Act,
allow a worker to recover his entire damages from a railroad
whose negligence jointly caused an injury (here, the chronic
disease asbestosis), thus placing on the railroad the burden
of seeking contribution from other tortfeasors.
I
The asbestosis claimants (plaintiffs below, respondents
here) brought this FELA action against their former em-
ployer, Norfolk, in the Circuit Court of Kanawha County,
West Virginia.1 Norfolk, they alleged, negligently exposed
them to asbestos, which caused them to contract the occupa-
1 FELA cases may be brought, at plaintiff ’s option, in federal court or
in state court. 45 U. S. C. § 56.

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tional disease asbestosis. App. 17–20.2 As an element of
their occupational disease damages, the asbestosis claimants
sought recovery for mental anguish based on their fear of
developing cancer. Id., at 21.
Before trial, Norfolk moved to exclude all evidence refer-
ring to cancer as irrelevant and prejudicial. Id., at 52–53.
The trial court denied the motion, Tr. 251 (Apr. 14, 1998),
and the asbestosis claimants placed before the jury extensive
evidence relating to cancer, including expert testimony that
asbestosis sufferers with smoking histories have a signifi-
cantly increased risk of developing lung cancer.3 (Of the six
asbestosis claimants, five had smoking histories, and two
persisted in smoking even after their asbestosis diagnosis.
App. 265, 336–337.) Asbestosis sufferers—workers whose
exposure to asbestos has manifested itself in a chronic dis-
ease—the jury also heard, have a significant (one in ten) risk
of dying of mesothelioma, a fatal cancer of the lining of the
lung or abdominal cavity. Id., at 92–97 (asbestosis claim-
ants’ expert); id., at 472 (Norfolk’s expert) (nine or ten
percent).4
2 Asbestosis is a noncancerous scarring of the lungs by asbestos fibers;
symptoms include shortness of breath, coughing, and fatigue. Ranging in
severity from mild to debilitating, it is a chronic disease that, in rare in-
stances, is fatal. See RAND Institute for Civil Justice, S. Carroll et al.,
Asbestos Litigation Costs and Compensation: An Interim Report 17
(2002), Petitioner’s Supplemental Lodging, p. SL82 (hereinafter RAND
Institute); U. S. Dept. of Health and Human Services, Agency for Toxic
Substances and Disease Registry, Asbestos Toxicity 20 (2000).
3 The risk of mortality from lung cancer for smokers with asbestosis, the
trial evidence showed, is 39 percent. App. 93–94 (asbestosis claimants’
expert); id., at 473 (Norfolk’s expert). For nonsmokers, the risk is much
lower, approximately 2.5 percent. Ibid.
4 While smoking contributes significantly to the risk of lung cancer, it
does not bear on the risk of mesothelioma. Id., at 93. Asbestos is the
only cause of mesothelioma established thus far, although some instances
of the disease are not traceable to asbestos. RAND Institute 17. The
latency period for asbestos-related disease is generally 20–40 years from
exposure. Id., at 16.

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Concluding that no asbestosis claimant had shown he was
reasonably certain to develop cancer, the trial court in-
structed the jury that damages could not be awarded to any
claimant “for cancer or any increased risk of cancer.” Id.,
at 573. The testimony about cancer, the court explained,
was relevant “only to judge the genuineness of plaintiffs’
claims of fear of developing cancer.” Ibid. On that score,
the court charged:
“[A]ny plaintiff who has demonstrated that he has devel-
oped a reasonable fear of cancer that is related to proven
physical injury from asbestos is entitled to be compen-
sated for that fear as a part of the damages you may
award for pain and suffering.” Ibid.
In so instructing the jury, the court rejected Norfolk’s pro-
posed instruction, which would have ruled out damages for
an asbestosis sufferer’s fear of cancer, unless the claimant
proved both “an actual likelihood of developing cancer” and
“physical manifestations” of the alleged fear. See id., at 548.
The trial court also refused Norfolk’s request to instruct
the jury to apportion damages between Norfolk and other
employers alleged to have contributed to an asbestosis claim-
ant’s disease. Id., at 539.5 Two of the claimants had sig-
nificant exposure to asbestos while working for other em-
ployers: Carl Butler, exposed to asbestos at Norfolk for only
three months, worked with asbestos elsewhere as a pipefitter
for 33 years, id., at 250, 252, 375; Freeman Ayers was ex-
posed to asbestos for several years while working at auto-
5 The apportionment instruction Norfolk proposed stated: “If you find
that the plaintiff in this case has a condition or disease which was caused
by his employment with employers other than the railroad, plaintiff ’s re-
covery must be limited to only such damages as result from his railroad
employment and he cannot recover damages which have been or will be
caused by his nonrailroad employment. This is so because the railroad
can be held responsible only for such of a plaintiff ’s damages as result
from its alleged negligence while the plaintiff was employed at the rail-
road.” App. 539.

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body shops, id., at 274–275. In awarding damages, the trial
court charged, the jury was “not to make a deduction for the
contribution of non-railroad exposures,” so long as it found
that Norfolk was negligent and that “dust exposures at [Nor-
folk] contributed, however slightly, to the plaintiff ’s inju-
ries.” Id., at 570.6
The jury returned total damages awards for each asbesto-
sis claimant, ranging from $770,000 to $1.2 million. Id., at
578–589. After reduction for three claimants’ comparative
negligence from smoking and for settlements with non-
FELA entities, the final judgments amounted to approxi-
mately $4.9 million. Id., at 590–613. It is impossible to
look behind those judgments to determine the amount the
jury awarded for any particular element of damages. Nor-
folk, although it could have done so, see W. Va. Rule Civ.
Proc. 49 (1998), did not endeavor to clarify the jury’s dam-
ages determinations; it did not seek a special verdict or in-
terrogatory calling upon the jury to report, separately, its
assessments, if any, for fear-of-cancer damages.
The trial court denied Norfolk’s motion for a new trial,
App. to Pet. for Cert. 4a, and the Supreme Court of Appeals
of West Virginia denied Norfolk’s request for discretionary
review, id., at 1a–2a. We granted certiorari, 535 U. S. 969
(2002), and now affirm.
II
Section 1 of the FELA renders common carrier railroads
“liable in damages to any person suffering injury while . . .
employed by [the] carrier” if the “injury or death result-
[ed] in whole or in part from the [carrier’s] negligence.”
6 As required by the FELA, the trial court directed the jury to deter-
mine whether negligence by any of the asbestosis claimants contributed
to their injuries and to compare any such negligence with that of Norfolk
“in terms of percentages.” Id., at 570–571; see 45 U. S. C. § 53 (“contribu-
tory negligence shall not bar a recovery, but the damages shall be dimin-
ished by the jury in proportion to the amount of negligence attributable
to such employee”).

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45 U. S. C. § 51. Enacted in 1908, Congress designed the
FELA to “shif[t] part of the ‘human overhead’ of doing busi-
ness from employees to their employers.” Gottshall, 512
U. S., at 542 (quoting Tiller v. Atlantic Coast Line R. Co., 318
U. S. 54, 58 (1943)). “[T]o further [the Act’s] humanitarian
purposes, Congress did away with several common-law tort
defenses that had effectively barred recovery by injured
workers.” Gottshall, 512 U. S., at 542. As cataloged in
Gottshall, the FELA “abolished the fellow servant rule”;
“rejected the doctrine of contributory negligence in favor
of . . . comparative negligence”; “prohibited employers from
exempting themselves from [the] FELA through contract”;
and, in a 1939 amendment, “abolished the assumption of risk
defense.” Id., at 542–543; see 45 U. S. C. §§ 51–55. “Only
to the extent of these explicit statutory alterations,” how-
ever, “is [the] FELA ‘an avowed departure from the rules
of the common law.’ ” Gottshall, 512 U. S., at 544 (quoting
Sinkler v. Missouri Pacific R. Co., 356 U. S. 326, 329 (1958)).
When the Court confronts a dispute regarding what injuries
are compensable under the statute, Gottshall instructs,
common-law principles “are entitled to great weight in our
analysis.” 512 U. S., at 544; see id., at 558 (Souter, J., con-
curring) (The Court’s duty “is to develop a federal common
law of negligence under FELA, informed by reference to the
evolving common law.”).
III
A
We turn first to the question whether the trial judge cor-
rectly stated the law when he charged the jury that an asbes-
tosis claimant, upon demonstrating a reasonable fear of can-
cer stemming from his present disease, could recover for that
fear as part of asbestosis-related pain and suffering damages.
See supra, at 143. In answering this question, we follow
the path marked by the Court’s decisions in Consolidated

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146 NORFOLK & WESTERN R. CO. v. AYERS
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Rail Corporation v. Gottshall, 512 U. S. 532 (1994), and
Metro-North Commuter R. Co. v. Buckley, 521 U. S. 424
(1997).
The FELA plaintiff in Gottshall alleged that he witnessed
the death of a co-worker while on the job, and that the epi-
sode caused him severe emotional distress. 512 U. S., at
536–537. He sought to recover damages from his employer,
Conrail, for “mental or emotional harm . . . not directly
brought about by a physical injury.” Id., at 544.
Reversing the Court of Appeals’ judgment in favor of the
plaintiff, this Court stated that uncabined recognition of
claims for negligently inflicted emotional distress would
“hol[d] out the very real possibility of nearly infinite and un-
predictable liability for defendants.” Id., at 546. Of the
“limiting tests . . . developed in the common law,” ibid., the
Court selected the zone-of-danger test to delineate “the
proper scope of an employer’s duty under [the] FELA to
avoid subjecting its employees to negligently inflicted emo-
tional injury,” id., at 554. That test confines recovery for
stand-alone emotional distress claims to plaintiffs who:
(1) “sustain a physical impact as a result of a defendant’s
negligent conduct”; or (2) “are placed in immediate risk of
physical harm by that conduct”—that is, those who escaped
instant physical harm, but were “within the zone of danger of
physical impact.” Id., at 547–548 (internal quotation marks
omitted). The Court remanded Gottshall for reconsidera-
tion under the zone-of-danger test. Id., at 558.
In Metro-North, the Court applied the zone-of-danger test
to a claim for damages under the FELA, one element of
which was fear of cancer stemming from exposure to asbes-
tos. The plaintiff in Metro-North had been intensively ex-
posed to asbestos while working as a pipefitter for Metro-
North in New York City’s Grand Central Terminal. At the
time of his lawsuit, however, he had a clean bill of health.
The Court rejected his entire claim for relief. Exposure
alone, the Court held, is insufficient to show “physical im-

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pact” under the zone-of-danger test. 521 U. S., at 430. “[A]
simple (though extensive) contact with a carcinogenic sub-
stance,” the Court observed, “does not . . . offer much help
in separating valid from invalid emotional distress claims.”
Id., at 434. The evaluation problem would be formidable,
the Court explained, “because contacts, even extensive con-
tacts, with serious carcinogens are common.” Ibid. “The
large number of those exposed and the uncertainties that
may surround recovery,” the Court added, “suggest what
Gottshall called the problem of ‘unlimited and unpredictable
liability.’ ” Id., at 435 (quoting 512 U. S., at 557).
As in Gottshall, the Court distinguished stand-alone dis-
tress claims from prayers for damages for emotional pain and
suffering tied to a physical injury: “Common-law courts,” the
Court recognized, “do permit a plaintiff who suffers from a
disease to recover for related negligently caused emotional
distress . . . .” 521 U. S., at 432 (emphasis added). When a
plaintiff suffers from a disease, the Court noted, common-law
courts have made “a special effort” to value related emo-
tional distress, “perhaps from a desire to make a physically
injured victim whole or because the parties are likely to be
in court in any event.” Id., at 436–437.
In sum, our decisions in Gottshall and Metro-North de-
scribe two categories: Stand-alone emotional distress claims
not provoked by any physical injury, for which recovery is
sharply circumscribed by the zone-of-danger test; and emo-
tional distress claims brought on by a physical injury, for
which pain and suffering recovery is permitted. Norfolk,
whose position the principal dissent embraces, see, e. g., post,
at 172, 177 (Kennedy, J., concurring in part and dissenting
in part), would have us ally this case with those in the
stand-alone emotional distress category, Brief for Petitioner
16–31; the asbestosis claimants urge its placement in the

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148 NORFOLK & WESTERN R. CO. v. AYERS
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emotional distress brought on by a physical injury (or dis-
ease) category, Brief for Respondents 26.7
Relevant to this characterization question, the parties
agree that asbestosis is a cognizable injury under the FELA.
See Urie v. Thompson, 337 U. S. 163, 187 (1949) (occupational
diseases caused by exposure to hazardous dusts are injuries
under the FELA). Norfolk does not dispute that the claim-
ants suffer from asbestosis, see Tr. of Oral Arg. 4, or that
asbestosis can be “a clinically serious, often disabling, and
progressive disease,” Reply Brief 6 (internal quotation
marks omitted). As Metro-North plainly indicates, pain and
suffering damages may include compensation for fear of can-
cer when that fear “accompanies a physical injury.” 521
U. S., at 430; see id., at 436 (“The common law permits emo-
tional distress recovery for that category of plaintiffs who
suffer from a disease.”). Norfolk, therefore, cannot plausi-
bly maintain that the claimants here, like the plaintiff in
Metro-North, “are disease and symptom free.” Id., at 432.
The plaintiffs in Gottshall and Metro-North grounded their
suits on claims of negligent infliction of emotional distress.
The claimants before us, in contrast, complain of a negli-
gently inflicted physical injury (asbestosis) and attendant
pain and suffering.
B
Unlike stand-alone claims for negligently inflicted emo-
tional distress, claims for pain and suffering associated with,
or “parasitic” on, a physical injury are traditionally compen-
sable. The Restatement (Second) of Torts § 456 (1963–1964)
(hereinafter Restatement) states the general rule:
“If the actor’s negligent conduct has so caused any
bodily harm to another as to make him liable for it, the
actor is also subject to liability for
7 Justice Breyer, it appears, would not place this case in either of the
two above-described categories, but somewhere in between. See post, at
187 (opinion concurring in part and dissenting in part).

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“(a) fright, shock, or other emotional disturbance re-
sulting from the bodily harm or from the conduct which
causes it . . . .” (Emphases added.)
A plaintiff suffering bodily harm need not allege physical
manifestations of her mental anguish. Id., Comment c.
“The plaintiff must of course present evidence that she has
suffered, but otherwise her emotional distress claims, in
whatever form, are fully recoverable.” D. Dobbs, Law of
Torts 822 (2000).
By 1908, when the FELA was enacted, the common law
had evolved to encompass apprehension of future harm as a
component of pain and suffering. The future harm, genu-
inely feared, need not be more likely than not to materialize.
See Minneman, Future Disease or Condition, or Anxiety Re-
lating Thereto, as Element of Recovery, 50 A. L. R. 4th 13,
25, § 2[a] (1986) (mental anguish related to physical injury is
recoverable even if “the underlying future prospect is not
itself compensable inasmuch as it is not sufficiently likely to
occur”). Physically injured plaintiffs, it is now recognized,
may recover for “reasonable fears” of a future disease.
Dobbs, supra, at 844. As a classic example, plaintiffs bitten
by dogs succeeded in gaining recovery, not only for the pain
of the wound, but also for their fear that the bite would
someday result in rabies or tetanus. The wound might heal,
but “[t]he ghost of hydrophobia is raised, not to down during
the life-time of the victim.” The Lord Derby, 17 F. 265, 267
(ED La. 1883).8
8 See also Gamer v. Winchester, 110 S. W. 2d 1190, 1193 (Tex. Civ. App.
1937) (rabies, lockjaw, blood poisoning); Serio v. American Brewing Co.,
141 La. 290, 299, 74 So. 998, 1001 (1917) (hydrophobia); Ayers v. Macough-
try, 29 Okla. 399, 402, 117 P. 1088, 1090 (1911) (fear of rabies); Buck v.
Brady, 110 Md. 568, 573, 73 A. 277, 279 (1909) (hydrophobia); Heintz v.
Caldwell, 9 Ohio Cir. Dec. 412 (1898) (hydrophobia and lockjaw); Warner
v. Chamberlain, 12 Del. 18, 21, 30 A. 638, 639 (1884) (hydrophobia); Godeau
v. Blood, 52 Vt. 251 (1880) (apprehension of poison from dog bite).

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150 NORFOLK & WESTERN R. CO. v. AYERS
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In the course of the 20th century, courts sustained a vari-
ety of other “fear-of ” claims.9 Among them have been
claims for fear of cancer. Heightened vulnerability to can-
cer, as one court observed, “must necessarily have a most
depressing effect upon the injured person. Like the sword
of Damocles,” he knows it is there, but not whether or when
it will fall. Alley v. Charlotte Pipe & Foundry Co., 159 N. C.
327, 331, 74 S. E. 885, 886 (1912).10
Many courts in recent years have considered the question
presented here—whether an asbestosis claimant may be
compensated for fear of cancer. Of decisions that address
9 See, e. g., Goodmaster v. Houser, 225 Conn. 637, 647, 625 A. 2d 1366,
1371 (1993) (apprehension that motor vehicle accident injury would neces-
sitate future surgery, risking facial nerve paralysis); Laxton v. Orkin Ex-
terminating Co., 639 S. W. 2d 431, 434 (Tenn. 1982) (fear of illness from
drinking contaminated well water); Baylor v. Tyrrell, 177 Neb. 812, 824–
826, 131 N. W. 2d 393, 401–402 (1964) (fear of deterioration of hip bone
following motor vehicle accident); Schneider v. Chalfonte Builders, Inc.,
11 Bucks 122 (Pa. Ct. Common Pleas 1961) (fear that contaminated water
causing gastrointestinal ailments would later cause a more grave disease,
e. g., typhoid fever); Figlar v. Gordon, 133 Conn. 577, 585, 53 A. 2d 645,
648 (1947) (fear that brain injury from motor vehicle accident would lead
to epilepsy); Southern Kansas R. Co. of Texas v. McSwain, 55 Tex. Civ.
App. 317, 319, 118 S. W. 874, 875 (1909) (apprehension of blood poisoning
from foot injury); Butts v. National Exchange Bank, 99 Mo. App. 168, 173,
72 S. W. 1083, 1084 (1903) (same).
10 See also Sterling v. Velsicol Chemical Corp., 855 F. 2d 1188, 1206 (CA6
1988) (fear of cancer from ingestion of contaminated well water); Clark v.
Taylor, 710 F. 2d 4, 14 (CA1 1983) (fear of bladder cancer from “benzidine
test” on prisoner to detect blood on skin); Dempsey v. Hartley, 94 F. Supp.
918, 921 (ED Pa. 1951) (injuries to breasts); Zieber v. Bogert, 565 Pa. 376,
383, 773 A. 2d 758, 762 (2001) (fear of a recurrence of cancer when first
cancer was untimely diagnosed as a result of medical malpractice); Ander-
son v. Welding Testing Laboratory, Inc., 304 So. 2d 351, 353 (La. 1974)
(handling of radioactive pill); Lorenc v. Chemirad Corp., 37 N. J. 56, 76,
179 A. 2d 401, 411 (1962) (toxic chemical spilled on hand); Ferrara v. Gal-
luchio, 5 N. Y. 2d 16, 20–21, 152 N. E. 2d 249, 252–253 (1958) (radiation
burn on shoulder); Coover v. Painless Parker, Dentist, 105 Cal. App. 110,
115, 286 P. 1048, 1050 (1930) (X-ray burns).

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the issue, a clear majority sustain recovery. See, e. g.,
Hoerner v. Anco Insulations, Inc., 2000–2333, p. 49 (La. App.
1/23/02), 812 So. 2d 45, 77 (fear of cancer testimony “appropri-
ately presented in order to prove [asbestosis claimant’s] gen-
eral damage claim”); Beeman v. Manville Corp. Asbestos
Disease Compensation Fund, 496 N. W. 2d 247, 252–253
(Iowa 1993) (cancer evidence held admissible to show reason-
ableness of asbestosis claimant’s fear of cancer); Denton v.
Southern R. Co., 854 S. W. 2d 885, 888–889 (Tenn. App. 1993)
(FELA decision holding erroneous “Trial Court’s exclusion
of evidence about [asbestosis claimant’s] fear of cancer”); Cel-
otex Corp. v. Wilson, 607 A. 2d 1223, 1229–1230 (Del. 1992)
(sustaining jury charge allowing damages for asbestosis
claimants’ fear of cancer); Coffman v. Keene Corp., 257 N. J.
Super. 279, 293–294, 608 A. 2d 416, 424–425 (1992) (sustaining
award of damages that included compensation for asbestosis
claimant’s fear of cancer); Fibreboard Corp. v. Pool, 813 S. W.
2d 658, 666, 675–676 (Tex. App. 1991) (sustaining jury charge
allowing fear of cancer damages for plaintiff with “confirmed
asbestosis”); Sorenson v. Raymark Industries, Inc., 51
Wash. App. 954, 958, 756 P. 2d 740, 742 (1988) (evidence of
increased risk of cancer held “admissible to establish, as a
damage factor, the reasonableness of [an asbestosis claim-
ant’s] fear that he would contract cancer”); Eagle-Picher In-
dustries, Inc. v. Cox, 481 So. 2d 517, 529 (Fla. App. 1985)
(asbestosis claimants may recover for fear of cancer); Devlin
v. Johns-Manville Corp., 202 N. J. Super. 556, 563, 495 A. 2d
495, 499 (1985) (asbestosis claimants, who suffered “substan-
tial bodily harm” from asbestos, may recover for fear of
cancer).11
11 See also Jackson v. Johns-Manville Sales Corp., 781 F. 2d 394, 413–
414 (CA5 1986) (fear of cancer compensable, but plaintiff established can-
cer more likely than not to occur); Bonnette v. Conoco, Inc., 2001–2767,
p. 11 (La. 1/28/03), 837 So. 2d 1219, 1227 (mental anguish accompanied by
physical injury is compensable, but mere exposure to asbestos does not

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152 NORFOLK & WESTERN R. CO. v. AYERS
Opinion of the Court
Arguing against the trend in the lower courts, Norfolk and
its supporting amici assert that the asbestosis claimants’ al-
leged cancer fears are too remote from asbestosis to warrant
inclusion in their pain and suffering awards. In support of
this contention, the United States, one of Norfolk’s amici,
refers to the “separate disease rule,” under which most
courts have held that the statute of limitations runs sepa-
rately for each asbestos-related disease. Brief for United
States as Amicus Curiae 12. See, e. g., Wilson v. Johns-
Manville Sales Corp., 684 F. 2d 111, 120–121 (CADC 1982);
Pustejovsky v. Rapid-American Corp., 35 S. W. 3d 643, 649,
n. 3 (Tex. 2000) (listing cases).12 Because the asbestosis
qualify as a physical injury); Wolff v. A-One Oil, Inc., 216 App. Div. 2d 291,
292, 627 N. Y. S. 2d 788, 789–790 (1995) (fear-of-cancer recovery available if
a plaintiff has asbestos-induced disease); Capital Holding Corp. v. Bailey,
873 S. W. 2d 187, 194 (Ky. 1994) (recovery “if first the plaintiff can cross
the threshold of establishing a harmful change has resulted from exposure
to the potentially cancer producing agent”); Mauro v. Raymark Indus-
tries, Inc., 116 N. J. 126, 137, 561 A. 2d 257, 263 (1989) (claim for fear of
future disease held “clearly cognizable where, as here, plaintiff ’s exposure
to asbestos has resulted in physical injury”); Lavelle v. Owens-Corning
Fiberglas Corp., 30 Ohio Misc. 2d 11, 14, 507 N. E. 2d 476, 480–481 (Ct.
Common Pleas, Cuyahoga Cty. 1987) (asbestosis-afflicted plaintiff could re-
cover for fear of cancer either as pain and suffering damages associated
with asbestosis, or as compensable stand-alone claim of negligent infliction
of emotional distress).
Contrary precedent is slim in comparison to the heavy weight of author-
ity. See Fulmore v. CSX Transp., Inc., 252 Ga. App. 884, 897, 557 S. E.
2d 64, 75 (2001) (denying fear-of-cancer damages to asbestosis claimant
based in part on misplaced reliance on Metro-North Commuter R. Co. v.
Buckley, 521 U. S. 424 (1997)); Cleveland v. Johns-Manville Corp., 547 Pa.
402, 410, 690 A. 2d 1146, 1150 (1997) (plaintiff asserting noncancer asbestos
claims may not recover any cancer-related damages); Watson v. Norfolk &
Western R. Co., 30 Ohio App. 3d 201, 203–204, 507 N. E. 2d 468, 471–472
(1987) (recovery permissible under the FELA only on showing that plain-
tiff will probably develop cancer from asbestos exposure).
12 The rule evolved as a response to the special problem posed by latent-
disease cases. Under the single-action rule, a plaintiff who recovered for
asbestosis would then be precluded from bringing suit for later developed
mesothelioma. Allowing separate complaints for each disease, courts de-

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claimants may bring a second action if cancer develops, Nor-
folk and the Government argue, cancer-related damages are
unwarranted in their asbestosis suit. Tr. of Oral Arg. 17–18;
Reply Brief 5. The question, as the Government frames it,
is not whether the asbestosis claimants can recover for fear
of cancer, but when. Brief for United States as Amicus
Curiae 15. The principal dissent sounds a similar theme.
Post, at 174 (“a person with asbestosis will not be without a
remedy for pain and suffering caused by cancer”).
But the asbestosis claimants did not seek, and the trial
court did not allow, discrete damages for their increased risk
of future cancer. App. 573 (“[Y]ou cannot award damages
to plaintiffs for cancer or for any increased risk of cancer.”);
see supra, at 143. Instead, the claimants sought damages
for their current injury, which, they allege, encompasses a
present fear that the toxic exposure causative of asbestosis
may later result in cancer. The Government’s “when, not
whether,” argument has a large gap; it excludes recovery for
the fear experienced by an asbestosis sufferer who never
gets cancer. For such a person, the question is whether, not
when, he may recover for his fear.
Even if the question is whether, not simply when, an asbes-
tosis sufferer may recover for cancer fear, Norfolk has an-
other string in its bow. To be compensable as pain and suf-
fering, Norfolk maintains, a mental or emotional harm must
have been “directly brought about by a physical injury.”
Brief for Petitioner 15 (emphasis deleted; internal quotation
marks omitted) (quoting Gottshall, 512 U. S., at 544). Be-
cause asbestosis itself, as distinguished from asbestos expo-
termined, properly balanced a defendant’s interest in repose and a plain-
tiff ’s interest in recovering adequate compensation for negligently in-
flicted injuries. See, e. g., Wilson, 684 F. 2d, at 119. There is no
inevitable conflict between the “separate disease rule” and recovery of
cancer fear damages by asbestosis claimants. The rule simply allows re-
covery for successive diseases and would necessarily exclude only double
recovery for the same element of damages.

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154 NORFOLK & WESTERN R. CO. v. AYERS
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sure, does not generate cancer, Norfolk insists and the princi-
pal dissent agrees, “fear of cancer is too unrelated, as a
matter of law, to be an element of [an asbestosis sufferer’s]
pain and suffering.” Tr. of Oral Arg. 11; see post, at 172.13
This argument elides over a key connection between Nor-
folk’s conduct and the damages the asbestosis claimants al-
lege as an element of their pain and suffering: Once found
liable for “any bodily harm,” a negligent actor is answerable
in damages for emotional disturbance “resulting from the
bodily harm or from the conduct which causes it.” Restate-
ment § 456(a) (emphasis added).14
There is an undisputed relationship between exposure to
asbestos sufficient to cause asbestosis, and asbestos-related
cancer. Norfolk’s own expert acknowledged that asbestosis
puts a worker in a heightened risk category for asbestos-
related lung cancer. App. 470 (affirming that “asbestosis has
to be necessary before lung cancer is a problem”). See W.
Morgan & A. Seaton, Occupational Lung Diseases 151 (3d ed.
1995) (hereinafter Morgan & Seaton) (“[H]eavy cumulative
exposures to asbestos which lead to asbestosis increase the
risk of developing lung cancer. . . . [T]here is now consider-
able evidence which indicates that the risk of lung cancer
only increases when asbestosis is present.”). See also id., at
341 (“There is no doubt . . . that the presence of asbestosis,
at least in smokers, is associated with a significantly in-
13 But cf. post, at 187 (Breyer, J.) (recovery permissible when fear of
cancer “detrimentally affects the plaintiff ’s ability to carry on with every-
day life and work”).
14 See, e. g., Baltimore & O. R. Co. v. McBride, 36 F. 2d 841, 842 (CA6
1930) (“Where both the physical injury and the nervous shock are proxi-
mately caused by the same act of negligence, there is no necessity that
the shock result exclusively from the physical injury.”); see also Goodrich,
Emotional Disturbance as Legal Damage, 20 Mich. L. Rev. 497, 504 (1922)
(“Recovery has been allowed where there has been physical impact, but
it has been frankly said that where there has been impact the damages
recoverable are not limited to those resulting therefrom.”); Magruder,
Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev.
1033, 1048–1049 (1936).

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creased rate of lung cancer.”); A. Churg & F. Green, Pathol-
ogy of Occupational Lung Disease 343 (2d ed. 1998) (“[S]tud-
ies provide strong support for the notion that asbestosis
is crucial to the development of asbestos-associated lung
cancers.”).
Furthermore, the asbestosis claimants’ expert testified
without contradiction to a risk notably “different in kind
from the background risks that all individuals face,” post, at
187 (Breyer, J.): Some “ten percent of the people who have
the disease, asbestosis, have died of mesothelioma.” App.
93; see Morgan & Seaton 350 (“The evidence suggests that,
once the lungs of the susceptible subject have been primed
by a sufficient dose of asbestos, then the development of [me-
sothelioma] is inevitable.”).15 In light of this evidence, an
asbestosis sufferer would have good cause for increased ap-
prehension about his vulnerability to another illness from his
exposure, a disease that inflicts “agonizing, unremitting
pain,” relieved only by death, post, at 168 (Kennedy, J.): As-
bestosis is “a chronic, painful and concrete reminder that [a
15 The evidence at trial, Norfolk suggests, overstated the asbestosis
claimants’ cancer risk. Brief for Petitioner 22–24, and nn. 18–20. We do
not sit to reweigh evidence based on information not presented at trial.
See Tennant v. Peoria & Pekin Union R. Co., 321 U. S. 29, 35 (1944). We
note, however, that none of the studies to which Norfolk refers addresses
the risk of cancer for persons with asbestosis. Rather, they home in on
the relationship between asbestos exposure and cancer. See Morgan, At-
titudes About Asbestos and Lung Cancer, 22 Am. J. Indus. Med. 437 (1992);
Goodman, Morgan, Ray, Malloy, & Zhao, Cancer in Asbestos-Exposed Oc-
cupational Cohorts: A Meta-Analysis, 10 Cancer Causes & Control 453
(1999); Erren, Jacobsen, & Piekarski, Synergy Between Asbestos and
Smoking on Lung Cancer Risks, 10 Epidemiology 405 (1999). Norfolk
further suggests that cancer risk from asbestos varies by fiber type.
Brief for Petitioner 24, and n. 19 (citing Morgan & Seaton 346–347). Even
if true, this suggestion is unavailing: Norfolk does not allege that it ex-
posed the asbestosis claimants to the less toxic fiber type. Finally, Nor-
folk argues that the studies quantifying cancer risk for workers with as-
bestosis cannot accurately be extrapolated to evaluate the risk for these
particular asbestosis claimants. Reply Brief 8–9, and n. 4. Nothing im-
peded Norfolk from presenting this argument to the jury.

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156 NORFOLK & WESTERN R. CO. v. AYERS
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plaintiff] has been injuriously exposed to a substantial
amount of asbestos, a reminder which may both qualitatively
and quantitatively intensify his fear.” Eagle-Picher Indus-
tries, Inc. v. Cox, 481 So. 2d, at 529.
Norfolk understandably underscores a point central to the
Court’s decision in Metro-North. Reply Brief 10. The
Court’s opinion in Metro-North stressed that holding em-
ployers liable to workers merely exposed to asbestos would
risk “unlimited and unpredictable liability.” 521 U. S., at
435 (internal quotation marks omitted) (quoting Gottshall,
512 U. S., at 557). But as earlier observed, see supra, at 147,
Metro-North sharply distinguished exposure-only plaintiffs
from “plaintiffs who suffer from a disease,” and stated, un-
ambiguously, that “[t]he common law permits emotional dis-
tress recovery for [the latter] category.” 521 U. S., at 436;
see id., at 432. Commentary similarly distinguishes asymp-
tomatic asbestos plaintiffs from plaintiffs who “developed
asbestosis and thus suffered real physical harm.” Hender-
son & Twerski, Asbestos Litigation Gone Mad: Exposure-
Based Recovery for Increased Risk, Mental Distress, and
Medical Monitoring, 53 S. C. L. Rev. 815, 830 (2002); see id.,
at 830, 833–834 (classifying plaintiffs with pleural thickening
as asymptomatic and observing that, unlike asbestosis suffer-
ers, they face no “significantly increased risk of developing
cancer” and do not “suffe[r] current pain that serves as a
constant reminder that a more serious disease may come
upon [them]”). 16
16 Unconstrained by “the majority rule or the rule of the Restatement,”
post, at 177 (Kennedy, J.), the principal dissent would erase the line
drawn in Metro-North between exposure-only asbestos claimants, and
those who “suffe[r] from a disease,” 521 U. S., at 432. Repeatedly, that
dissent recites as properly controlling here case law governing “stand-
alone tort action[s] for negligent infliction of emotional distress.” Post, at
171 (citing Consolidated Rail Corporation v. Gottshall, 512 U. S. 532
(1994)); see post, at 169 (quoting from Metro-North’s justification for dis-
allowing recovery to exposure-only asbestos claimants); 173 (bracketing
exposure-only and asbestosis claimants); 177 (asbestosis claimants entitled

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The categorical approach endorsed in Metro-North serves
to reduce the universe of potential claimants to numbers nei-
ther “unlimited” nor “unpredictable.” Relevant here, and as
Norfolk recognizes, of those exposed to asbestos, only a frac-
tion will develop asbestosis. Brief for Petitioner 22, n. 16
(quoting In re Haw. Fed. Asbestos Cases, 734 F. Supp. 1563,
1570 (Haw. 1990) (“A reasonable person, exercising due dili-
gence, should know that of those exposed to asbestos, only a
small percentage suffer from asbestos-related physical im-
pairment.”)); cf. Morgan & Seaton 319 (study showed that of
persons exposed to asbestos after 1959, only 2 percent had
asbestosis when first examined; for those exposed from 1950–
1959, that figure is 18 percent).
C
Norfolk presented the question “[w]hether a plaintiff who
has asbestosis but not cancer can recover damages for fear
of cancer under the [FELA] without proof of physical mani-
festations of the claimed emotional distress.” Brief for Pe-
titioner (i). Our answer is yes, with an important reser-
vation. We affirm only the qualification of an asbestosis
sufferer to seek compensation for fear of cancer as an ele-
ment of his asbestosis-related pain and suffering damages.
It is incumbent upon such a complainant, however, to prove
that his alleged fear is genuine and serious. See, e. g., Smith
v. A. C. & S., Inc., 843 F. 2d 854, 859 (CA5 1988) (“general
to recover for fear of cancer only if they “make out a claim for negligent
infliction of emotional distress; and they cannot do so”); 180 (quoting from
Gottshall). But see Metro-North, 521 U. S., at 437 (“emotional distress
damages sought by asbestosis-afflicted plaintiff ” found to fit “within a cat-
egory where the law already permitted recovery for mental distress”).
The principal dissent gains no genuine aid from Barron v. Martin-
Marietta Corp., 868 F. Supp. 1203 (ND Cal. 1994), a decision it cites as
authority for equating exposure-only and asbestosis claimants. See post,
at 175. The Barron plaintiffs “adduced no evidence of exposure to a toxic
substance which threatens cancer.” 868 F. Supp., at 1205. When that is
the case, we agree, cancer-fear damages are unavailable.

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158 NORFOLK & WESTERN R. CO. v. AYERS
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concern for [one’s] future health” held insufficient to support
recovery for an asbestosis sufferer’s fear of cancer); Coffman
v. Keene, 257 N. J. Super., at 293–294, 608 A. 2d, at 424–425
(sustaining a verdict including fear-of-cancer damages where
trial judge found plaintiff “ha[d] a genuine, real believable
fear of cancer” (internal quotation marks omitted)). See
also Minneman, 50 A. L. R. 4th, § 5, at 54–56, (discussing
cases affirming the view that “apprehension must be genu-
ine”).17 In this case, proof directed to that matter was nota-
bly thin,18 and might well have succumbed to a straightfor-
ward sufficiency-of-the-evidence objection, had Norfolk so
targeted its attack.
Norfolk, however, sought a larger shield. In the trial
court and in its unsuccessful petition to the Supreme Court
17 The asbestosis claimants here acknowledged that “a jury is entitled
to consider the absence of physical manifestations [of alleged emotional
disturbances] as evidence that a mental injury is less severe and therefore
less deserving of a significant award.” Brief for Respondents 17.
Considering the dissents’ readiness to “develop a federal common law”
to contain jury verdicts under the FELA, see post, at 170, 177, 181 (Ken-
nedy, J.); post, at 187 (Breyer, J.), it is curious that the principal dissent
nevertheless questions the “basis in our FELA jurisprudence” for the re-
quirement that claimants prove their alleged fear to be “genuine and seri-
ous,” see post, at 180 (internal quotation marks omitted). In contrast to
the principal dissent, Justice Breyer appears ultimately to advance only
an elaboration of the requirement that the plaintiff prove fear that is “gen-
uine and serious.” He would specify, additionally, that the fear “signifi-
cantly and detrimentally affec[t] the plaintiff ’s ability to carry on with
everyday life and work.” Post, at 187. That elaboration, Justice
Breyer maintains, is “consistent with the sense of the common law.”
Ibid. The definition Justice Breyer would give to the terms “genuine
and serious” in this context was not aired in the trial court or in this
Court. See supra, at 143, 148, and this page. We therefore resist ruling
on it today.
18 As Norfolk noted, one of the claimants did not testify to having any
concern about cancer; another testified that he was more afraid of short-
ness of breath from his asbestosis than of cancer. Others testified to vary-
ing degrees of concern over developing the disease; no claimant presented
corroborative objective evidence of his fear. Brief for Petitioner 9 (citing
App. 116–117, 255, 277, 298–299, 332).

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of Appeals of West Virginia, Norfolk urged that fear of can-
cer could figure in the recovery only if the claimant proved
both a likelihood of developing cancer and physical manifes-
tations of the alleged fear. See App. 548 (Norfolk’s charge
request); id., at 634 (amended petition for appeal). And al-
though Norfolk submitted proposed verdict forms, id., at
549–560, those forms did not call for jury specification of the
amount of damages, if any, awarded for fear of cancer. Thus,
as earlier observed, supra, at 144, it is impossible to tell from
the verdicts returned whether the jury ascribed any part of
the damages awards to the alleged cancer fear, and if so,
how much.19
We did not grant review, in any event, to judge the suffi-
ciency of the evidence or the reasonableness of the damages
awards. We rule, specifically and only, on the question
whether this case should be aligned with those in which fear
of future injury stems from a current injury, or with those
presenting a stand-alone claim for negligent infliction of emo-
tional distress. We hold that the former categorization is
the proper one under the FELA.
IV
We turn next to Norfolk’s contention that the trial court
erred in instructing the jury “not to make a deduction [from
damages awards] for the contribution of non-railroad [asbes-
tos] exposures” to the asbestosis claimants’ injuries. App.
570. The statutory language, however, supports the trial
court’s understanding that the FELA does not authorize ap-
19 In their prediction that adhering to the line drawn in Gottshall and
Metro-North will, in this setting, bankrupt defendants, see post, at 168–169
(Kennedy, J.); post, at 186 (Breyer, J.), the dissents largely disregard,
inter alia, the verdict control devices available to the trial court. These
include, on a defendant’s request, a charge that each plaintiff must prove
any alleged fear to be genuine and serious, review of the evidence on
damages for sufficiency, and particularized verdict forms. Norfolk chose
not to seek control measures of this order; instead, Norfolk sought to place
cancer-fear damages entirely outside the jury’s ken. See supra, at
143, 147.

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160 NORFOLK & WESTERN R. CO. v. AYERS
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portionment of damages between railroad and nonrailroad
causes. Section 1 of the Act, to which we earlier referred,
see supra, at 144–145, provides:
“Every common carrier by railroad while engaging in
[interstate commerce], shall be liable in damages to any
person suffering injury while he is employed by such
carrier in such commerce . . . for such injury . . . result-
ing in whole or in part from the negligence of . . . such
carrier . . . .” 45 U. S. C. § 51.
The claimants here suffer from asbestosis (an “injury”),
which is linked to their employment with Norfolk and “re-
sult[ed] in whole or in part from . . . negligence” by Norfolk.
Norfolk is therefore “liable in damages . . . for such injury.”
Ibid. (emphasis added). Nothing in the statutory text in-
structs that the amount of damages payable by a liable em-
ployer bears reduction when the negligence of a third party
also contributed in part to the injury-in-suit.
Resisting this reading, Norfolk trains on the statutory lan-
guage conveying that a railroad is liable only for injuries an
employee sustains “while he is employed by such carrier.”
Ibid. That language, Norfolk maintains, “makes clear that
railroads are not liable for employee injuries that result from
outside causes.” Brief for Petitioner 32. Norfolk’s argu-
ment uncouples the statutory language from its context, and
thereby obscures its meaning.
The FELA applies to railroads only “while [they are]
engaging in” interstate commerce. 45 U. S. C. § 51. The
clause on which Norfolk relies clarifies that the statute’s
reach is correspondingly limited to injuries sustained by rail-
road employees while the employees are themselves engaged
“in such commerce.” Ibid. (emphasis added); cf. The Em-
ployers’ Liability Cases, 207 U. S. 463, 504 (1908) (predeces-
sor statute declared unconstitutional because it regulated
employee injuries not sufficiently related to interstate com-
merce). Placed in context, the clause does not speak to

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cases in which an injury has multiple causes, some related to
railroad employment and others unrelated to that employ-
ment. Such cases, we think, are controlled by the language
just noted, which states that the railroad is “liable in dam-
ages” so long as the injury was caused “in whole or in part”
by its “negligence.” 45 U. S. C. § 51.
The statutory context bolsters our reading, for interpret-
ing § 1 to require apportionment would put that provision in
tension with the rest of the statute. As recounted earlier,
see supra, at 145, several of the FELA’s provisions expand
a railroad’s liability by abolishing common-law defenses that
limited employees’ ability to recover against their employers.
Among the innovations, the Act expressly directs apportion-
ment of responsibility between employer and employee
based on comparative fault. See § 53 (set out in relevant
part supra, at 144, n. 6). The statute expressly prescribes
no other apportionment.
Essentially, then, Norfolk asks us to narrow employer lia-
bility without a textual warrant. Reining in employer lia-
bility as Norfolk proposes, however, is both unprovided for
by the language of the FELA and inconsistent with the Act’s
overall recovery facilitating thrust. Accordingly, we find
Norfolk’s plea an untenable reading of the congressional si-
lence. Cf. Edmonds v. Compagnie Generale Transatlan-
tique, 443 U. S. 256, 268, n. 23 (1979) (“It would be par-
ticularly curious for Congress to refer expressly to the
established principle of comparative negligence, yet say not
a word about adopting a new rule limiting the liability of the
[defendant] on the basis of [another party’s] negligence.”).
Norfolk’s view also runs counter to a century of FELA
jurisprudence. No FELA decision made by this Court so
much as hints that the statute mandates apportionment of
damages among potentially liable tortfeasors. Indeed, Rog-
ers v. Missouri Pacific R. Co., 352 U. S. 500 (1957), suggests
the opposite. In Rogers, we described as “irrelevant” the
question “whether the immediate reason” for an employee’s

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162 NORFOLK & WESTERN R. CO. v. AYERS
Opinion of the Court
injury was the proven negligence of the defendant railroad
or “some cause not identified from the evidence.” Id., at
503; see id., at 508 (“[T]he inquiry in these cases today rarely
presents more than the single question whether negligence
of the employer played any part, however small, in the injury
or death which is the subject of the suit.”). But if the
FELA required apportionment among potentially liable tort-
feasors, the existence of contributing causes would be
highly relevant.
Also significant is the paucity of lower court authority for
the proposition that the FELA contemplates apportionment.
The federal and state reporters contain numerous FELA de-
cisions stating that railroad employers may be held jointly
and severally liable for injuries caused in part by the negli-
gence of third parties,20 and even more recognizing that
FELA defendants may bring indemnification and contribu-
tion actions against third parties under otherwise applicable
state or federal law.21 Those third-party suits would have
20 See, e. g., Jenkins v. Southern Pac. Co., 17 F. Supp. 820, 824–825 (SD
Cal. 1937), rev’d on other grounds, 96 F. 2d 405 (CA9 1938); Gilbert v. CSX
Transp., Inc., 197 Ga. App. 29, 32, 397 S. E. 2d 447, 450 (1990); Lewis v.
National R. Passenger Corp., 176 Misc. 2d 947, 948–951, 675 N. Y. S. 2d
504, 505–507 (Civil Ct. 1998); Gaulden v. Burlington No., Inc., 232 Kan.
205, 210–211, 654 P. 2d 383, 389 (1982); Southern R. Co. v. Blanton, 63 Ga.
App. 93, 100, 10 S. E. 2d 430, 436 (1940); Demopolis Tel. Co. v. Hood, 212
Ala. 216, 218, 102 So. 35, 37 (1924); Lindsay v. Acme Cement Plaster Co.,
220 Mich. 367, 376, 190 N. W. 275, 278 (1922); Louisville & Nashville R. Co.
v. Allen, 67 Fla. 257, 269–272, 65 So. 8, 12 (1914).
21 See, e. g., Mills v. River Term. R. Co., 276 F. 3d 222, 224 (CA6 2002);
Gaines v. Illinois Central R. Co., 23 F. 3d 1170, 1171 (CA7 1994); Ellison
v. Shell Oil Co., 882 F. 2d 349, 352–354 (CA9 1989); Alabama Great South-
ern R. Co. v. Chicago & Northwestern R. Co., 493 F. 2d 979, 983 (CA8
1974); Southern R. Co. v. Foote Mineral Co., 384 F. 2d 224, 227–228 (CA6
1967); Kennedy v. Pennsylvania R. Co., 282 F. 2d 705, 708–709 (CA3 1960);
Ft. Worth & Denver R. Co. v. Threadgill, 228 F. 2d 307, 311–312 (CA5
1955); Patterson v. Pennsylvania R. Co., 197 F. 2d 252, 253 (CA2 1952);
Stephens v. Southern Pacific Transp. Co., 991 F. Supp. 618, 620 (SD Tex.
1998); Tucker v. Reading Co., 335 F. Supp. 1269, 1271 (ED Pa. 1971); Reyn-
olds v. Southern R. Co., 320 F. Supp. 1141, 1142–1143 (ND Ga. 1969); Spiel-
man v. New York, New Haven & Hartford R. Co., 147 F. Supp. 451, 453–454

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been unnecessary had the FELA itself authorized apportion-
ment. Norfolk identifies only one FELA decision support-
ing its position: Dale v. Baltimore & Ohio R. Co., 520 Pa. 96,
105–107, 552 A. 2d 1037, 1041–1042 (1989). But Dale cited
no previous decisions on point and has not been followed by
any other court. It is therefore a reed too slim to overcome
the statutory language and the otherwise consistent histori-
cal practice in the lower courts.
The conclusion that the FELA does not mandate appor-
tionment is also in harmony with this Court’s repeated state-
ments that joint and several liability is the traditional rule.
In an 1876 admiralty case, for example, we wrote:
“Nothing is more clear than the right of a plaintiff, hav-
ing suffered . . . a loss [of cargo], to sue in a common-law
action all the wrong-doers, or any one of them, at his
election; and it is equally clear, that, if he did not con-
tribute to the disaster, he is entitled to judgment in
either case for the full amount of his loss.” The
“Atlas,” 93 U. S. 302, 315 (1876) (emphasis added).
See 42 Cong. Rec. 4536 (1908) (remarks of Sen. Dolliver) (the
FELA was intended to “brin[g] our jurisprudence up to the
liberal interpretations that . . . now prevail in the admiralty
courts of the United States”). See also Miller v. Union Pa-
cific R. Co., 290 U. S. 227, 236 (1933) (describing joint and
several liability as “settled by innumerable authorities” and
(EDNY 1956); Engvall v. Soo Line R. Co., 632 N. W. 2d 560, 568 (Minn.
2001); Freeman v. Norfolk Southern R. Co., 97–2013 (La. App. 5/13/98),
714 So. 2d 832, 835; In re Bean, 171 Ill. App. 3d 620, 623, 525 N. E. 2d 1231,
1234 (1988); Narcise v. Illinois Central Gulf R. Co., 427 So. 2d 1192, 1195
(La. 1983); Walter v. Dow Chemical Co., 37 Mich. App. 728, 729–732, 195
N. W. 2d 323, 324–325 (1972); Gulf, Mobile & Ohio R. Co. v. Arthur Dixon
Transfer Co., 343 Ill. App. 148, 153–155, 98 N. E. 2d 783, 785–786 (1951);
Seaboard Air Line R. Co. v. American Dist. Elec. Protective Co., 106 Fla.
330, 333, 143 So. 316, 317 (1932); Lewter, Right of Railroad, Charged with
Liability for Injury to or Death of Employee Under Federal Employers’
Liability Act, to Claim Indemnity or Contribution from Other Tortfeasor,
19 A. L. R. 3d 928 (1968 and Supp. 2002).

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164 NORFOLK & WESTERN R. CO. v. AYERS
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citing federal decisions from 1883, 1893, 1894, 1895, 1902,
1904, 1906, 1910, and 1913); Edmonds, 443 U. S., at 260 ( joint
and several liability remains the rule in admiralty).
Norfolk nonetheless maintains that “[a]pportionment was
the common-law rule at the time of FELA’s enactment” in
1908. Brief for Petitioner 32. This Court’s repeated state-
ments concerning joint and several liability refute that con-
tention. Many of Norfolk’s historical authorities, moreover,
address the procedural question whether two defendants
may be sued in one action, rather than the substantive one
whether each negligent defendant is liable in full for a plain-
tiff ’s injury. These “separate problems,” Dean Prosser cau-
tioned, “require separate consideration, and have very little
in common.” Joint Torts and Several Liability, 25 Calif.
L. Rev. 413 (1937). While “[t]he common law rules as to
[procedural] joinder were extremely strict,” id., at 414, “the
common law [also] developed . . . a distinct and altogether
unrelated principle: a defendant might be liable for the entire
loss sustained by the plaintiff, even though his negligence
concurred or combined with that of another to produce the
result” and even where “no [procedural] joinder would have
been possible,” id., at 418.
Looking beyond historical practice, Norfolk contends that
the modern trend is to apportion damages between multiple
tortfeasors. Brief for Petitioner 40–43. The state of affairs
when the FELA was enacted, however, is the more impor-
tant inquiry. See, e. g., Monessen Southwestern R. Co. v.
Morgan, 486 U. S. 330, 336–339 (1988) (prejudgment interest
is not available under the FELA because it was unavailable
at common law when the statute was enacted). At any rate,
many States retain full joint and several liability, see Re-
statement (Third) of Torts, Apportionment of Liability § 17,
Reporters’ Note, table, pp. 151–152 (1999), even more retain
it in certain circumstances, id., tables, at 153–159, and most
of the recent changes away from the traditional rule have
come through legislative enactments rather than judicial de-

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velopment of common-law principles, see id., § B18, Report-
ers’ Note. Congress, however, has not amended the FELA.
Cf. Edmonds, 443 U. S., at 273 (“Once Congress has relied
upon conditions that the courts have created, we are not as
free as we would otherwise be to change them.”).22
Finally, reading the FELA to require apportionment
would handicap plaintiffs and could vastly complicate adjudi-
cations, all the more so if, as Norfolk sometimes suggests,
see Brief for Petitioner 50, Reply Brief 20, manufacturers
and suppliers, as well as other employers, should come
within the apportionment pool. See Sinkler, 356 U. S., at
329 (“The cost of human injury, an inescapable expense of
railroading, must be borne by someone, and the FELA seeks
to adjust that expense equitably between the worker and the
carrier.”). Once an employer has been adjudged negligent
with respect to a given injury, it accords with the FELA’s
overarching purpose to require the employer to bear the
burden of identifying other responsible parties and demon-
strating that some of the costs of the injury should be spread
to them.23
Under the FELA, an employee who suffers an “injury”
caused “in whole or in part” by a railroad’s negligence may
22 Norfolk also suggests an analogy between the FELA and the Compre-
hensive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA), 42 U. S. C. § 9601 et seq., under which many courts have held
that apportionment is available in some circumstances. Brief for Peti-
tioner 44–45. But CERCLA’s structure, purpose, and more recent vin-
tage may differentiate that measure from the FELA in ways relevant to
the question presented. See Brief for United States as Amicus Curiae
6, n. 1. We need not and do not express any view on apportionment in
the CERCLA context.
23 Norfolk submits that requiring employers to sue for contribution will
be “wasteful,” Brief for Petitioner 47, but FELA defendants may be able
to implead third parties and thus secure resolution of their contribution
actions in the same forum as the underlying FELA actions. See, e. g.,
Ellison v. Shell Oil Co., 882 F. 2d, at 350 (railroad sued by employee under
the FELA filed a third-party complaint against another party); Engvall
v. Soo Line R. Co., 632 N. W. 2d, at 563 (same).

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166 NORFOLK & WESTERN R. CO. v. AYERS
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recover his or her full damages from the railroad, regardless
of whether the injury was also caused “in part” by the ac-
tions of a third party. Because the asbestosis claimants suf-
fer such an “injury,” we conclude that the instruction chal-
lenged here was not erroneous.
* * *
The “elephantine mass of asbestos cases” lodged in state
and federal courts, we again recognize, “defies customary
judicial administration and calls for national legislation.”
Ortiz v. Fibreboard Corp., 527 U. S. 815, 821 (1999); see Re-
port of the Judicial Conference Ad Hoc Committee on Asbes-
tos Litigation 3, 27–35 (Mar. 1991) (concluding that effective
reform requires federal legislation creating a national asbes-
tos dispute-resolution scheme); id., at 42 (dissenting state-
ment of Hogan, J.) (agreeing that “a national solution is the
only answer” and suggesting “passage by Congress of an ad-
ministrative claims procedure similar to the Black Lung leg-
islation”). Courts, however, must resist pleas of the kind
Norfolk has made, essentially to reconfigure established lia-
bility rules because they do not serve to abate today’s as-
bestos litigation crisis. Cf. Metro-North, 521 U. S., at 438
(“[C]ourts . . . must consider the general impact . . . of the
general liability rules they . . . create.”).
For the reasons stated, the judgment of the Circuit Court
of Kanawha County is
Affirmed.
Justice Kennedy, with whom The Chief Justice, Jus-
tice O’Connor, and Justice Breyer join, concurring in
part and dissenting in part.
The Court is correct, in my view, in rejecting the claim
that damages awarded under the Federal Employers’ Liabil-
ity Act (FELA or Act) must be apportioned according to
causal contribution among even absent joint tortfeasors.
Parts I, II, and IV of its opinion have my full assent.

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It is otherwise as to Part III. The Court allows compen-
sation for fear of cancer to those who manifest symptoms
of some other disease, not itself causative of cancer, though
stemming from asbestos exposure. The Court’s precedents
interpreting FELA neither compel nor justify this result.
The Court’s ruling is not based upon a sound application of
the common-law principles that should inform our decisions
implementing FELA. On the contrary, those principles call
for a different rule, one which does not yield such aberrant
results in asbestos exposure cases. These reasons require
my respectful dissent.
I
It is common ground that the purpose of FELA is to pro-
vide compensation for employees protected under the Act.
Ante, at 144–145. The Court’s decision is a serious threat
to that objective. Although a ruling that allows compensa-
tion for fear of a disease might appear on the surface to be
solicitous of employees and thus consistent with the goals of
FELA, the realities of asbestos litigation should instruct the
Court otherwise.
Consider the consequences of allowing compensation for
fear of cancer in the cases now before the Court. The re-
spondents are between 60 and 77 years old. All except one
have a long history of tobacco use, and three have smoked
for more than 50 years. They suffer from shortness of
breath, but only one testified that it affects his daily activi-
ties. As for emotional injury, one of the respondents com-
plained that his shortness of breath caused him to become
depressed; the others stated, in response to questions from
their attorneys, that they have some “concern” about their
health and about cancer. For this, the jury awarded each
respondent between $770,640 and $1,230,806 in damages, re-
duced by the trial court to between $523,605 and $1,204,093
to account for the comparative negligence of the respond-
ents’ cigarette use.

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168 NORFOLK & WESTERN R. CO. v. AYERS
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Contrast this recovery with the prospects of an employee
who does not yet have asbestosis but who in fact will develop
asbestos-related cancer. Cancers caused by asbestos have
long periods of latency. Their symptoms do not become
manifest for decades after exposure. See Selikoff et al., La-
tency of Asbestos Disease Among Insulation Workers in the
United States and Canada, 46 Cancer 2736, 2740 (1980) (lung
cancer becomes manifest 15–24 years af ter exposure);
A. Churg & F. Green, Pathology of Occupational Lung Dis-
ease 350 (2d ed. 1998) (“The latency period for asbestos-
induced mesothelioma is long, with a mean value of 30 to 40
years”); see generally Mustacchi, Lung Cancer Latency and
Asbestos Liability, 17 J. Legal Med. 277 (June 1996) (dis-
cussing the pathogenesis of asbestos-related carcinomata).
These cancers inflict excruciating pain and distress—pain
more severe than that associated with asbestosis, distress
more harrowing than the fear of developing a future illness.
One who has mesothelioma, in particular, faces agonizing,
unremitting pain in the lungs, which spreads throughout the
thoracic cavity as tumors expand and metastasize. See W.
Morgan & A. Seaton, Occupational Lung Diseases 353 (3d
ed. 1995). The symptoms do not subside. Their severity
increases, with death the only prospect for relief. And
death is almost certain within a short time from the onset of
mesothelioma. See ibid. (“Death usually occurs within 18
months to 2 years . . . . A minority of patients, somewhere
around 15%, survive 3 to 4 years”). Yet the majority’s deci-
sion endangers this employee’s chances of recovering any
damages for the simple reason that, by the time the worker
is entitled to sue for the cancer, the funds available for com-
pensation in all likelihood will have disappeared, depleted by
verdicts awarding damages for unrealized fear, verdicts the
majority is so willing to embrace.
This Court has recognized the danger that no compensa-
tion will be available for those with severe injuries caused
by asbestos. See Amchem Products, Inc. v. Windsor, 521

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U. S. 591, 598 (1997) (“ ‘[E]xhaustion of assets threatens and
distorts the process; and future claimants may lose alto-
gether’ ” (quoting Report of the Judicial Conference Ad Hoc
Committee on Asbestos Litigation 2–3 (Mar. 1991))); 521
U. S., at 632 (Breyer, J., concurring in part and dissenting
in part). In fact the Court already has framed the question
that should guide its resolution of this case:
“In a world of limited resources, would a rule permitting
immediate large-scale recoveries for widespread emo-
tional distress caused by fear of future disease diminish
the likelihood of recovery by those who later suffer from
the disease?” Metro-North Commuter R. Co. v. Buck-
ley, 521 U. S. 424, 435–436 (1997).
The Court ignores this question and its warning. It is only
a matter of time before inability to pay for real illness comes
to pass. The Court’s imprudent ruling will have been a con-
tributing cause to this injustice.
Asbestos litigation has driven 57 companies, which em-
ployed hundreds of thousands of people, into bankruptcy,
including 26 companies that have become insolvent since
January 1, 2000. See RAND Institute for Civil Justice,
S. Carroll et al., Asbestos Litigation Costs and Compensa-
tion: An Interim Report 71 (2002), Petitioner’s Supplemental
Lodging, p. SL82. With each bankruptcy the remaining de-
fendants come under greater financial strain, see Edley &
Weiler, Asbestos: A Multi-Billion-Dollar Crisis, 30 Harv. J.
Legis. 383, 392 (1993); M. Plevin & P. Kalish, What’s Behind
the Recent Wave of Asbestos Bankruptcies? 16 Mealey’s Lit-
igation Report: Asbestos 35 (Apr. 20, 2001), and the funds
available for compensation become closer to exhaustion, see
Schuck, The Worst Should Go First: Deferral Registries in
Asbestos Litigation, 15 Harv. J. L. & Pub. Pol’y 541, 547
(1992).
In this particular universe of asbestos litigation, with its
fast diminishing resources, the Court’s wooden determina-

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tion to allow recovery for fear of future illness is antitheti-
cal to FELA’s goals of ensuring compensation for injuries.
Cf. Consolidated Rail Corporation v. Gottshall, 512 U. S.
532, 555 (1994) (describing FELA’s “central focus on physical
perils”); Metro-North, supra, at 430 (noting that Gottshall
relied upon cases involving “a threatened physical contact
that caused, or might have caused, immediate traumatic
harm”). As a consequence of the majority’s decision, it is
more likely that those with the worst injuries from exposure
to asbestos will find they are without remedy because those
with lesser, and even problematic, injuries will have ex-
hausted the resources for payment. Today’s decision is not
employee protecting; it is employee threatening.
II
When the Court asks whether the rule it adopts has been
settled by the common law, the answer, in my view, must be
no. The issue before us is new and unsettled, as is evident
from the diverse approaches of state and federal courts to
this problem. In its comprehensive discussion, the majority
cites some authorities that, it must be acknowledged, could
be interpreted to support the Court’s position. The result
it reaches, however, is far from inevitable, and the rule the
majority derives does not comport with our responsibility to
develop a federal common law that administers FELA in an
effective, principled way.
A
I disagree with the Court’s conclusion that damages for
fear of cancer may be recovered as part of the pain and suf-
fering caused by asbestosis. Ante, at 148. The majority
observes that a person who suffers from “a disease” may
recover for all “related” emotional distress. Ante, at 147
(courts “ ‘do permit a plaintiff who suffers from a disease to
recover for related negligently caused emotional distress’ ”
(quoting Metro-North, supra, at 432)). While that may be
true as a general matter, it begs the question: What relation-

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ship between a disease and associated emotional distress
should entitle a person to compensation for the distress as
pain and suffering?
The Court’s precedent applying FELA provides the an-
swer. To qualify as compensable pain and suffering, a per-
son’s emotional distress must be the direct consequence of
an injury or condition. See Gottshall, 512 U. S., at 544
(“[T]hese terms traditionally have been used to describe
sensations stemming directly from a physical injury or con-
dition” (internal quotation marks omitted)). Damages for
emotional harms that are less direct may be recovered only
pursuant to a stand-alone tort action for negligent infliction
of emotional distress. Ibid. (defining negligently inflicted
emotional distress as “mental or emotional harm (such as
fright or anxiety) that is caused by the negligence of another
and that is not directly brought about by a physical injury”).
The common law accords with this rule. The weight of
authority defines pain and suffering as emotional distress
that is the direct consequence of an injury. See Minneman,
Future Disease or Condition, or Anxiety Relating Thereto,
as Element of Recovery, 50 A. L. R. 4th 13, 25 (1986) (“[T]he
fear that an existing injury will lead to the future onset of
an as yet unrealized disease or condition is an element of
recovery only where such distress . . . is the natural conse-
quence of, or reasonably expected to flow from, the injury”);
see also Restatement (Second) of Torts § 456(a) (1963–1964)
(hereinafter Restatement) (tortfeasor liable for “fright,
shock, or other emotional disturbance resulting from the
bodily harm or from the conduct which causes it”).
This category of emotional distress includes certain types
of fears. The fright that accompanies a dog bite or a radia-
tion burn, for example, may be said to result from an injury
because it arises without any intervening cause, such as a
medical examination. See The Lord Derby, 17 F. 265, 267
(ED La. 1883) (“To many people the shock to the system
resulting from the most insignificant bite of a dog drawing

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blood is such that no money compensation is adequate”).
The passage in the Restatement deeming compensable “emo-
tional disturbance resulting from the bodily harm or from
the conduct which causes it,” § 456(a), refers, as the official
commentary makes clear, to this sort of instantaneous emo-
tional trauma arising from the tortious act. See id., Com-
ment e (“Thus one who is struck by a negligently driven
automobile and suffers a broken leg may recover not only for
his pain, grief, or worry resulting from the broken leg, but
also for his fright at seeing the car about to hit him”).
Other, less immediate fears also might qualify as pain and
suffering, but only if they are the direct result of an injury.
See id., § 456, Comment d (clarifying that recovery is “not
limited to immediate emotional disturbance accompanying
the bodily harm, or following at once from it, but includes
also subsequent emotional disturbance brought about by the
bodily harm itself ”).
Applying these standards to the instant case, I do not
think the brooding, contemplative fear the respondents al-
lege can be called a direct result of their asbestosis. Unlike
shortness of breath or other discomfort asbestosis may cause,
their fear does not arise from the presence of disease in their
lungs. Instead, the respondents’ fear is the product of
learning from a doctor about their asbestosis, receiving infor-
mation (perhaps at a much later time) about the conditions
that correlate with this disease, and then contemplating how
these possible conditions might affect their lives.
The majority nevertheless would permit recovery because
“[t]here is an undisputed relationship between exposure to
asbestos sufficient to cause asbestosis, and asbestos-related
cancer.” Ante, at 154. To state that some relationship ex-
ists without examining whether the relationship is enough to
support recovery, however, ignores the central issue in this
case. There is a fundamental premise in this case—con-
ceded, as I understand it, by all parties—and it is this: There
is no demonstrated causal link between asbestosis and can-

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cer. See Churg & Green, Pathology of Occupational Lung
Disease, at 313. The incidence of asbestosis correlates with
the less-frequent incidence of cancer among exposed work-
ers, ibid., but this does not suffice. Correlation is not causa-
tion. Absent causation, it is difficult to conceive why asbes-
tosis is any more than marginally more suitable a predicate
for recovering for fear of cancer than the fact of mere expo-
sure. This correlation the Court relies upon does not estab-
lish a direct link between asbestosis and asbestos-related
cancer, and it does not suffice under common-law precedents
as a predicate condition for recovery of damages based
upon fear.
It must be conceded that courts in some common-law juris-
dictions have ruled that fear of cancer is compensable as pain
and suffering before the cancer is diagnosed, but the majori-
ty’s extensive citations are not that persuasive. The Court
collects cases from 12 jurisdictions that comport with its re-
sult, but only 5 of these were decided by the high court of a
State. Ante, at 150–151, and n. 11. Moreover, three would
allow recovery for fear of cancer predicated upon mere expo-
sure to asbestos, see Denton v. Southern R. Co., 854 S. W.
2d 885, 889 (Tenn. App. 1993) (citing Hagerty v. L & L Ma-
rine Servs., Inc., 788 F. 2d 315, 318 (CA5 1986)); Lavelle v.
Owens-Corning Fiberglas Corp., 30 Ohio Misc. 2d 11, 14, 507
N. E. 2d 476, 480 (Ct. Common Pleas, Cuyahoga Cty. 1987);
Devlin v. Johns-Manville Corp., 202 N. J. Super. 556, 563, 495
A. 2d 495, 499 (1985), a result contrary to our own holding in
Metro-North. Five more appear to allow recovery with the
onset of pleurisy, see Capital Holding Corp. v. Bailey, 873
S. W. 2d 187, 194 (Ky. 1994); Beeman v. Manville Corp. As-
bestos Disease Compensation Fund, 496 N. W. 2d 247, 250
(Iowa 1993); Celotex Corp. v. Wilson, 607 A. 2d 1223, 1229–
1230 (Del. 1992); Mauro v. Raymark Industries, Inc., 116
N. J. 126, 129–130, 561 A. 2d 257, 258–259 (1989); Wolff v.
A-One Oil, Inc., 216 App. Div. 2d 291, 292, 627 N. Y. S. 2d
788, 789–790 (1995), again a result even today’s Court would

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reject, ante, at 153–156, and n. 14. In the end, cases from
only five of those jurisdictions support the majority’s analy-
sis, none of them decided by a state high court.
On the other hand, as the majority acknowledges, some
courts have ruled that fear of cancer should not be compensa-
ble as pain and suffering. Ante, at 151–152, n. 11. These
decisions are based, in part, upon the “separate disease rule,”
which allows a person who has recovered for injuries result-
ing from asbestosis to bring a new lawsuit—notwithstanding
the traditional common-law proscription against splitting a
cause of action—if cancer develops. See Wilson v. Johns-
Manville Sales Corp., 684 F. 2d 111, 120–121 (CADC 1982)
(Ginsburg, J.). The rule has been adopted by a majority of
jurisdictions, see Henderson & Twerski, Asbestos Litigation
Gone Mad: Exposure-Based Recovery for Increased Risk,
Mental Distress, and Medical Monitoring, 53 S. C. L. Rev.
815, 821, and n. 22 (2002) (collecting cases), and the Court
does not suggest that it would not apply in cases brought
under FELA.
The separate disease rule is pertinent for at least two rea-
sons. First, it illustrates that courts have found it necessary
to construct fair and sensible common-law rules for resolving
the problems particular to asbestos litigation. Second, it es-
tablishes that a person with asbestosis will not be without a
remedy for pain and suffering caused by cancer. That per-
son can and will be compensated if the cancer develops.
This eliminates the need courts might otherwise perceive to
avert the danger that relief might be foreclosed in the future.
The Supreme Court of Pennsylvania reached this conclu-
sion, and its reasoning deserves attention when the Court
suggests the common law is so well settled:
“[D]amages for fear of cancer are speculative. The
awarding of such damages would lead to inequitable re-
sults since those who never contract cancer would obtain
damages even though the disease never came into
fruition.
. . . . .

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“In any case, Appellants are not left without a remedy
for their mental anguish. [Pennsylvania case law] per-
mits an action to be commenced if cancer develops. It
is in this action that Appellants can assert their emo-
tional distress or mental anguish claims. To allow the
asbestos plaintiff in a non-cancer claim to recover for
any part of the damages relating to cancer, including the
fear of contracting cancer, erodes the integrity of and
purpose behind the [separate] disease rule.” Simmons
v. Pacor, Inc., 543 Pa. 664, 677–678, 674 A. 2d 232, 238–
239 (1996).
This analysis is persuasive because it accounts, in a way
that the majority’s decision does not, for changes already un-
derway in common-law rules for compensating victims of a
disease with a long latency period. This approach surely is
more likely to result in an equitable allotment of compensa-
tion than the decision of the Court; and this is the rule the
Court should adopt to govern the availability of damages for
fear of cancer under FELA.
Pennsylvania is not alone in rejecting the majority’s view.
In a careful opinion applying California law, the United
States District Court for the Northern District of California
held that parasitic damages for fear of cancer may be recov-
ered only where there is a verifiable causal nexus between
the injury suffered and the cancer feared. Barron v.
Martin-Marietta Corp., 868 F. Supp. 1203, 1211–1212 (1994).
The court recognized that California courts had not yet ad-
dressed the type of physical injury that would permit com-
pensation for fear of cancer, see id., at 1210, n. 9, but it deter-
mined that the requirement of a causal nexus was a clear
implication of recent California Supreme Court precedent,
see id., at 1212 (citing Potter v. Firestone Tire & Rubber Co.,
6 Cal. 4th 965, 863 P. 2d 795 (1993)). The justification for
this prerequisite is significant in this case as well:

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“If no nexus were required between cancer and an al-
leged injury, an injury akin to a spinal puncture, serious
but unrelated to cancer, would admit recovery of para-
sitic damages for fear of cancer. Indeed, any serious
physical injury, however unrelated to cancer, would per-
mit fear-of-cancer damages.” 868 F. Supp., at 1211.
The proofs offered by the claimants in Barron were insuffi-
cient on summary judgment to meet that burden under Cali-
fornia law, and the respondents in today’s case also would be
incapable of recovering under that standard.
Other common-law authorities the majority cites do not
compel a contrary result. It is of no help to the respondents
that “mental anguish related to a physical injury is recover-
able even if ‘the underlying future prospect is not itself com-
pensable inasmuch as it is not sufficiently likely to occur.’ ”
Ante, at 149 (quoting Minneman, 50 A. L. R. 4th, at 25).
This principle cannot sustain an award when, as here, there
is a tangential, and no causal, relationship between the pres-
ent injury suffered and the future disease feared. Ibid.
(“Thus, damages for mental anguish concerning the chance
that a future disease or condition will result from an original
injury are generally not recoverable where the connection
between the anxiety and the existing injury is too remote
or tenuous”).
The respondents’ characterization, furthermore, finds no
support in the part of the Restatement quoted by the major-
ity. Ante, at 154 (“[A] negligent actor is answerable in dam-
ages for emotional disturbance ‘resulting from the bodily
harm or from the conduct which causes it’ ” (quoting Re-
statement § 456(a))). As described supra, at 171–172, the
commentary suggests that this statement would allow recov-
ery for direct or immediate emotional trauma resulting from
a tortious act, see Restatement § 456(a), Comment e. The
respondents do not claim to have experienced any shock or
trauma arising from their exposure to asbestos or from the
onset of their asbestosis. With almost no variation, they

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complained only of concern, for which the Restatement pro-
vides no guidance as to whether damages should be awarded.
More important, while the disagreement among state
courts about how to address this problem is telling, it is im-
portant to keep in mind the nature of the Court’s responsibil-
ity under FELA. The implementation of the Act is a matter
of federal common law, see Urie v. Thompson, 337 U. S. 163,
173 (1949), and it is for the Court to develop and administer
a fair and workable rule of decision, see Brady v. Southern
R. Co., 320 U. S. 476, 479 (1943) (“[T]he question must be
determined by this Court finally”); see also Gottshall, 512
U. S., at 558 (Souter, J., concurring) (“That duty is to de-
velop a federal common law of negligence under FELA, in-
formed by reference to the evolving common law”). State-
court precedent is not dispositive. See Dice v. Akron, C. &
Y. R. Co., 342 U. S. 359, 361 (1952) (“State laws are not con-
trolling in determining what the incidents of this federal
right shall be”). Instead, the Court is bound only by the
terms of FELA and its own precedent giving meaning to the
Act. Within those constraints, the Court must endeavor to
arrive at the correct rule—a rule that is just and practical—
rather than the majority rule or the rule of the Restatement.
These considerations establish the proper rule for the case.
Although the anxiety generated by an increased awareness
about a disease may be real and painful, it lacks the direct
link to a physical injury that suffices for recovery. Cf.
Metro-North, 521 U. S., at 432 (denying fear-of-cancer recov-
ery where condition “causes emotional distress only because
the worker learns that he may become ill after a substantial
period of time”). The respondents’ entitlement to compen-
sation for their fear of cancer turns upon their ability to
make out a claim for negligent infliction of emotional dis-
tress; and they cannot do so.

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B
If viewed as alleging negligent infliction of emotional dis-
tress, the respondents’ claims fail for the same reasons the
Court disallowed recovery in Metro-North. There, the em-
ployee was exposed to massive amounts of asbestos for one
hour of each working day for three years. See id., at 427.
He presented testimony about his fear of developing cancer.
Ibid. Two expert witnesses testified that the employee’s
fear was at least reasonable because his exposure to asbestos
increased the likelihood of contracting cancer, after discount-
ing for a 15-year tobacco habit, by between one and five per-
cent. Ibid.
Despite these indications of genuine emotional distress,
the Court held the exposure did not satisfy the “zone of dan-
ger” test and denied any recovery for fear of cancer. Id.,
at 430. The Court explained that the claim implicated the
traditional concerns underlying common-law restrictions
upon recovery for emotional distress. See id., at 433. The
distress the employee alleged, including his emotional reac-
tion to an incremental, increased risk of dying from cancer,
was beyond the ability of a jury to evaluate with precision,
heightening the danger that damages would be based upon
speculation or caprice, see id., at 435.
The respondents’ claims implicate these considerations to
the same or greater degree than in Metro-North. Each re-
spondent seeks damages for his emotional response to being
told he has an increased likelihood of dying. Ibid. The ex-
tent of the distress the respondents suffered is not calculable
with a precision sufficient to permit juries to award damages,
for the distress is simply incremental from the fears already
shared by the general population.
The respondents observe, with extensive support in the
medical literature, that a person with asbestosis has a 10
percent chance of developing mesothelioma, and that 39 per-
cent of smokers with asbestosis develop fatal lung cancer;
that cohort, however, drops to 5 percent, at most, for non-

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smokers with asbestosis. While these statistics might at
first appear to provide the beginning of an argument for giv-
ing asbestosis sufferers recovery for fear, the average Amer-
ican male has a 44 percent chance of developing cancer dur-
ing the course of his life, and his chance of dying from some
form of cancer is more than 21 percent. See L. Ries et al.,
National Cancer Institute, SEER Cancer Statistics Rev.,
1973–1999, Tables I–15, I–16 (2002), available at http://seer.
cancer.gov/csr/1973_1999/overview.pdf (as visited Feb. 10,
2003) (available in Clerk of Court’s case file). This literature
also suggests that a person who smokes has more than a 50
percent chance of dying from a disease caused by tobacco
use, see National Cancer Institute, Changes in Cigarette-
Related Disease Risks & Their Implication for Prevention
and Control, Smoking & Tobacco Control Monograph, No. 8,
1997, p. xi, Table 1, a risk that all but one of the respondents
has incurred that is wholly separate from their exposure to
asbestos.
It is beyond the ability of juries to derive from statistics
like these a fair estimate of the danger caused by negligent
exposure to asbestos. See Metro-North, supra, at 435. For
this reason, the trial judge was correct to instruct the jury
that they could not award the respondents any damages for
cancer or for an increased risk of cancer. In disallowing re-
covery for risk but allowing recovery for fear based on that
risk, however, the trial judge attempted to avoid speculation
at the outset but succumbed to added speculation in the end.
If instructing a jury to calculate an increased risk of cancer
invites speculation, then asking the jury to infer from its
estimate a rough sense of the fear based on the risk invites
speculation compounded.
The damages the jury awarded in this case indicate the
legitimacy of these concerns. As described above, supra, at
167, the respondents received damages of between $500,000
and $1.2 million despite having complained only that they
suffered shortness of breath and experienced varying de-

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grees of concern about cancer. This evidence of injury and
the compensation awarded is recited here not “to reweigh
evidence based on information not presented at trial,” ante,
at 155, n. 15, or “to judge the sufficiency of the evidence
or the reasonableness of the damages awards,” ante, at 159.
Rather, it is instructive as to what results in a single case
when a jury is charged with translating into dollar amounts
confusing and contested evidence about the nature of a com-
plicated harm. It demonstrates the speculative, unreasoned
kind of award generated when a jury is presented vivid testi-
mony about the agony of cancer, provided expert evidence
that a person’s chances of developing that cancer have in-
creased, but admonished that only the fear of that cancer—
and not the cancer itself, or a heightened risk of developing
cancer—is compensable.
The majority would allow such awards, but with the “im-
portant reservation” that a plaintiff must “prove that his al-
leged fear is genuine and serious.” Ante, at 157. There is
no basis in our FELA jurisprudence for establishing this
burden of proof, and it would be a difficult standard for
judges to enforce. The Court has rejected the notion that
review for “genuineness” could ameliorate the threat of un-
limited and unpredictable liability. See Gottshall, 512 U. S.,
at 552. In explaining its skepticism, the Court observed:
“Such a fact-specific test . . . would be bound to lead
to haphazard results. Judges would be forced to make
highly subjective determinations concerning the authen-
ticity of claims for emotional injury, which are far less
susceptible to objective medical proof than are their
physical counterparts. To the extent the genuineness
test could limit potential liability, it could do so only
inconsistently. . . . In the context of claims for intangible
harms brought under a negligence statute, we find such
an arbitrary result unacceptable.” Ibid.

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The Court’s response to the possibility of speculative
awards is instead to adopt common-law rules restricting the
classes of plaintiffs eligible to seek recovery and the types
of emotional distress for which recovery is available. See
ibid.; see also Metro-North, 521 U. S., at 436. This is not to
say that allegations of emotional distress need not be genu-
ine and serious in order to warrant compensation, but review
for genuineness alone does little or nothing to prevent capri-
cious outcomes. Instead, the responsibility of today’s Court
is not to review whether an individual claim alleging fear of
cancer is genuine and severe, but to adopt a rule that recon-
ciles the need to provide compensation for deserving claim-
ants with the concerns that speculative damages awards will
exhaust the resources available for recovery.
III
The Court, to be sure, does refer to the admonition in
Metro-North that common-law rules must be adopted to
avoid the risk of “ ‘unlimited and unpredictable liability.’ ”
Id., at 433 (quoting Gottshall, supra, at 557). Yet the rule
it adopts is an unreasoned rule of limitation—a rule that does
not advance the goal of ensuring that fair and sensible princi-
ples will govern recovery for injuries caused by asbestos.
The majority ends its opinion with a plea for legislative
intervention, ante, at 166, an entreaty made before, see Ortiz
v. Fibreboard Corp., 527 U. S. 815, 821 (1999); id., at 865
(Rehnquist, C. J., concurring); id., at 866–867 (Breyer, J.,
dissenting). This case arises under FELA, however, by
which Congress has directed the courts, and ultimately this
Court, to use their resources to develop equitable rules of
decision. It is regrettable that the Court today does not
accept that responsibility.
These reasons explain my dissent from Part III of the
Court’s opinion.

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182 NORFOLK & WESTERN R. CO. v. AYERS
Opinion of Breyer, J.
Justice Breyer, concurring in part and dissenting in
part.
I join Parts I, II, and IV of the Court’s opinion. I agree
with Justice Kennedy, however, that the law does not per-
mit recovery for “fear of cancer” in this case. And I join his
opinion dissenting from Part III. Because the issue is a
close and difficult one, I mention several considerations that,
in my mind, tip the balance.
Unlike the majority, I do not believe that the Restatement
(Second) of Torts (1963–1964) (hereinafter Second Restate-
ment) comes close to determining the correct answer to the
legal question before us. Cf. ante, at 148–149, 154 (majority
opinion). The Second Restatement sets forth a general rule
of recovery for “fright, shock, or other emotional disturb-
ance” where an “actor’s negligent conduct has so caused any
bodily harm to another as to make him liable for” it. § 456.
But the Second Restatement neither gives a definition of the
kind of “emotional disturbance” for which recovery is avail-
able nor otherwise states that recovery is available for any
kind of emotional disturbance whatsoever. Ibid.
The underlying history underscores the openness of the
legal question and the consequent uncertainty as to the an-
swer. When Congress enacted the Federal Employers’ Lia-
bility Act (FELA) in 1908, 45 U. S. C. §§ 51–60, the kinds of
injury that it primarily had in mind were those resulting
directly from physical accidents, such as railway collisions
and entanglement with machinery. See Consolidated Rail
Corporation v. Gottshall, 512 U. S. 532, 542 (1994). And
(where negligent conduct was at issue) the Restatement
nearest in time to FELA’s enactment (and therefore presum-
ably likely to be more reflective of the background rules that
FELA then assumed, cf. id., at 554–555) limited recovery for
related emotional distress to concrete harm resulting from
that distress. Restatement of Torts § 456 (1934) (herein-
after Restatement). In particular, this earlier Restatement
restricted recovery to “physical harm resulting . . . from

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fright or shock or other similar and immediate emotional dis-
turbance” substantially caused by the underlying injury or
negligent conduct. Ibid.
The later Second Restatement reflects subsequent court
decisions that liberalized this rule—(in the earlier Restate-
ment’s words) by extending recovery beyond “physical
harm” produced by “emotional disturbance,” and by remov-
ing the words “similar and immediate.” § 456. Linguisti-
cally speaking, these changes to the Restatement might
reflect judicial extension of the scope of “emotional
disturbance” far beyond “expectable” or “intended” fears
that nor ma l ly accompany, say, a col l isi on or other
machinery-related accident, Second Restatement § 905, Com-
ment e, p. 458 (1977). They might reflect judicial extension
of liability to the kind of “brooding, contemplative fear” at
issue here, ante, at 172 (Kennedy, J., concurring in part and
dissenting in part). But they also might reflect more lim-
ited judicial holdings—say, holdings that extend liability to
fears that arise directly from the compensable injury itself
(e. g., the fear of “shortness of breath,” App. 298–299) or
which arise directly from the conduct that caused the injury
(say, the fear of inhaling asbestos fibers in a visible cloud of
dust). The Second Restatement does not say.
Nor do the Second Restatement’s examples resolve the
problem. The most expansive example of recovery involves
not worry connected with toxic torts or the like, but a consid-
erably more restricted, directly connected worry “about the
securing of shelter for [one’s self] and family” after “wan-
to[n]” eviction—the wantonness of the eviction being a spe-
cial factor warranting particularly broad recovery. Second
Restatement § 905, Illustration 8, at 458; see also id., § 905,
Comment e, at 458.
Most important, different courts have come to different
conclusions about recovery for fear of cancer itself (even
when triggered by physical injury). The Restatements
are not statutes. They simply reflect predominant judicial

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views. And the variety of answers courts have given to the
question at issue here demonstrates that courts have not
reached a consensus. See ante, at 150–151, and n. 11 (major-
ity opinion); ante, at 173–174 (opinion of Kennedy, J.).
Given the legal uncertainty, this Court, acting like any
court interpreting the common law, see ante, at 177 (opinion
of Kennedy, J.), should determine the proper rule of law
through reference to the underlying factors that have helped
to shape related “emotional distress” rules. Those factors
argue for the kind of liability limitation that Justice Ken-
nedy has described, ibid.
First, the law in this area has sought to impose limitations
that separate valid, important emotional distress claims from
less important, trivial, or invalid claims. See Metro-North
Commuter R. Co. v. Buckley, 521 U. S. 424, 433 (1997). The
presence of physical harm often provides a central touch-
stone in this regard. But that does not work here. That is
because, given ordinary background risks, the increment in
a person’s fear of cancer due to diagnosis of a condition such
as asbestosis seems virtually impossible to evaluate. See
ante, at 178–179 (opinion of Kennedy, J.). The evidence
(viewed in the plaintiffs’ favor) indicates that, for a non-
smoker, a diagnosis of asbestosis may increase the perceived
risk of dying of cancer from something like the ordinary
background risk of about 22% (about two chances in nine) to
about one chance in three. See ante, at 155 (majority opin-
ion); ante, at 178–179 (opinion of Kennedy, J.). See also L.
Ries et al., National Cancer Institute, SEER Cancer Statis-
tics Rev., 1973–1999, Table I–16 (2002), available at http://
seer.cancer.gov/csr/1973_1999/overview.pdf (as visited Mar. 3,
2003) (available in Clerk of Court’s case file). Would a rea-
sonable person who is not already afraid of cancer when the
odds of dying are about two in nine suddenly develop a “gen-
uine and serious” and “reasonable” fear when those odds
change to one in three? Would a smoker, a risktaker whose
conduct has already increased the chance of cancer death to,

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say, about one in four, compare Cagle, Criteria for Attribut-
ing Lung Cancer to Asbestos Exposure, 117 Am. J. Clin.
Path. 9 (2002), with Ries, supra, at Table I–16, and whose
chance of dying of a smoking-related disease is already
about 50–50, Centers for Disease Control and Prevention,
Projected Smoking-Related Deaths Among Youth—United
States, 45 Morbidity and Mortality Weekly Report 971
(1996), suddenly develop a reasonable, genuine, and serious
fear of cancer when the chance of cancer or smoking-related
death rises even further? There is simply no way to know,
and it is close to impossible, in the ordinary case, to evaluate
a plaintiff ’s affirmative answer.
Second, the law’s recovery-limiting rules have sought
to avoid pure jury speculation, speculation that can pro-
duce “unlimited and unpredictable liability.” Metro-North,
supra, at 433 (internal quotation marks omitted). How is
the jury, without speculation, to measure compensation for
the augmentation of a cancer fear from, say, two in nine to
one in three? Given the fact that most of us lead our lives
without compensation for fear of a 22% risk of cancer death,
Ries, supra, at Table I–16, what monetary value can one at-
tach to an incrementally increased fear due to a risk, say,
of 30%? The problem here is not the unreality or lack of
seriousness of the fear. It may be all too real. The prob-
lem is the impossibility of knowing an appropriate compensa-
tion for asbestosis insofar as its appearance tears away that
veil of disregard that ordinarily shelters most of us from fear
of cancer, if not fear of death itself. The majority’s verdict
control measures, ante, at 159, n. 19, will not help much in
this respect.
Third, it would be perverse to apply tort law’s basic com-
pensatory objectives in a way that compensated less serious
injuries at the expense of more serious harms. Yet, as Jus-
tice Kennedy points out, the majority’s broad interpreta-
tion of the scope of compensable fears threatens to do pre-
cisely that. The kind of fear at issue here—a “brooding,

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186 NORFOLK & WESTERN R. CO. v. AYERS
Opinion of Breyer, J.
contemplative fear,” ante, at 172 (opinion of Kennedy, J.),
brought about by knowledge of exposure to a substance, or
of a present condition, correlated with an elevated cancer
risk—is associated quite generally with negligent exposure
to toxic substances. In addition to generating fear of can-
cer, such exposure may well produce large numbers of plain-
tiffs, serious injuries, and large monetary awards—all
against limited funds available for compensation. And, as
the history of asbestos litigation shows, such a combination
of circumstances can occur despite a threshold requirement
of physical harm.
In such cases, as Justice Kennedy points out, a rule that
allows everyone who suffers some physical harm to recover
damages for fear of correlated cancer threatens, in practice,
to exhaust the funds available for those who develop cancer
in the future, including funds available to compensate for
fear of cancer that has actually developed. Ante, at 168–170.
It is estimated, for example, that asbestos litigation has al-
ready consumed over $50 billion and that the eventual cost
may substantially exceed $200 billion. RAND Institute for
Civil Justice, S. Carroll et al., Asbestos Litigation Costs and
Compensation: An Interim Report 81 (2002), Petitioner’s
Supplemental Lodging, p. SL82 (hereinafter RAND Insti-
tute). The costs have driven dozens of companies into bank-
ruptcy. Ante, at 169 (opinion of Kennedy, J.). They have
also largely exhausted certain funds set aside for asbestos
claimants—reducing the Johns-Manville Trust for asbestos
claimants, for example, from a fund that promised to pay
100% of the value of liquidated claims to a fund that now
pays only 5%. RAND Institute 79–80. The concern that
tomorrow’s actual cancer victims will recover nothing—for
medical costs, pain, or fear—is genuine. Cf. ante, at 170
(opinion of Kennedy, J.). And that genuine concern re-
quires this Court to make hard choices. Members of this
Court have indicated that Congress should enact legislation
to help resolve the asbestos problem. See, e. g., Ortiz v. Fi-

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187 Cite as: 538 U. S. 135 (2003)
Opinion of Breyer, J.
breboard Corp., 527 U. S. 815, 865 (1999) (Rehnquist, C. J.,
concurring). Congress has not responded. But that lack of
response does not require the courts to ignore the practical
problems that threaten the achievement of tort law’s basic
compensatory objectives. In this case, those concerns favor
a legal rule that will permit future cancer victims to recover
for their injuries, including emotional suffering, even if that
recovery comes at the expense of limiting the recovery for
fear of cancer available to those suffering some present
harm.
For these reasons, I would accept the majority’s limita-
tions on recovery, ante, at 157, while adding further restric-
tions to rule out recovery for fear of disease when the follow-
ing conditions are met: (1) actual development of the disease
can neither be expected nor ruled out for many years;
(2) fear of the disease is separately compensable if the dis-
ease occurs; and (3) fear of the disease is based upon risks
not significantly different in kind from the background risks
that all individuals face. Where these conditions hold,
I believe the law generally rules out recovery for fear of
cancer. This is not to say that fear of cancer is never reim-
bursable. The conditions above may not hold. Even when
they do, I would, consistent with the sense of the common
law, permit recovery where the fear of cancer is unusually
severe—where it significantly and detrimentally affects the
plaintiff ’s ability to carry on with everyday life and work.
Cf. Ferrara v. Galluchio, 5 N. Y. 2d 16, 19, 152 N. E. 2d 249,
251 (1958) (awarding damages for a psychiatrist-confirmed
case of “severe cancerophobia” from a radiation burn).
However, because I believe that the above limitations create
a rule more restrictive than the jury charge here, ante, at
143 (majority opinion), and, indeed, would bar recovery as a
matter of law in this case, I too respectfully dissent from
Part III of the Court’s opinion.