CSX TRANSPORTATION, INC. v. HENSLEY

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838 OCTOBER TERM, 2008
Syllabus
CSX TRANSPORTATION, INC. v. HENSLEY
on petition for writ of certiorari to the court of
appeals of tennessee, eastern division
No. 08–1034. Decided June 1, 2009
A common-carrier railroad employee with asbestosis can recover damages
under the Federal Employers’ Liability Act (FELA) for fear of develop
ing lung cancer in the future if he proves “that his alleged fear is genu
ine and serious.” Norfolk & Western R. Co. v. Ayers, 538 U. S. 135, 157.
Respondent Hensley sought such fear-of-cancer damages from petitioner
CSX Transportation, Inc. The trial court denied CSX’s requests for
jury instructions on the Ayers damages standard, and the jury awarded
Hensley damages. The Tennessee Court of Appeals affirmed, conclud
ing that Ayers was limited to the narrow, substantive issue whether a
FELA plaintiff can recover fear-of-cancer damages and did not discuss
or authorize jury instructions.
Held: The Court of Appeals’ ruling and the trial court’s refusal to give an
instruction on the Ayers standard were clear error. Contrary to the
State Court of Appeals’ assertion, Ayers expressly recognized several
verdict control devices, “includ[ing], on a defendant’s request, a charge
that each plaintiff must prove any alleged fear to be genuine and seri
ous.” Id., at 159, n. 19. The Court of Appeals’ reasoning does not
withstand scrutiny. Its statement that an instruction on the Ayers
standard would have been futile because cancer evokes raw emotions
demonstrates a serious misunderstanding of the nature and function of
the jury. Jurors routinely serve as impartial factfinders in sensitive,
life-and-death cases and are presumed to follow the court’s instructions.
The fact that cancer claims could evoke raw emotions is a powerful
reason to instruct the jury on the Ayers standard, especially given the
volume of pending asbestos claims, the danger that an improperly in
structed jury could award damages on slight evidence, and the high
standard a plaintiff must satisfy in order to obtain damages. It is no
answer that courts can apply the Ayers standard when ruling on
sufficiency-of-the-evidence challenges. Sufficiency reviews are sepa
rate from jury instructions, and both verdict control devices provide
important protections against imposing unbounded liability in fear-of
cancer claims.
Certiorari granted; 278 S. W. 3d 282, reversed and remanded.

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839 Cite as: 556 U. S. 838 (2009)
Per Curiam
Per Curiam.
The Federal Employers’ Liability Act (FELA), 35 Stat.
65, as amended, provides that employees of common-carrier
railroads may recover for work-related injuries caused in
whole or in part by their railroad-employer’s negligence.
See 45 U. S. C. §§ 51–60. In this case respondent Thurston
Hensley sued petitioner CSX Transportation, Inc., in Ten
nessee state court. Hensley, who was employed by CSX as
an electrician, alleged that the railroad negligently caused
him to contract asbestosis—a noncancerous scarring of lung
tissue caused by long-term exposure to asbestos.
Hensley sought pain-and-suffering damages from CSX
based on, among other things, his fear of developing lung
cancer in the future. The Court addressed this subject in
Norfolk & Western R. Co. v. Ayers, 538 U. S. 135 (2003), and
held that those types of damages are available in certain
FELA cases. The Court stated:
“Norfolk presented the question whether a plaintiff who
has asbestosis but not cancer can recover damages for
fear of cancer under the FELA without proof of physical
manifestations of the claimed emotional distress. Our
answer is yes, with an important reservation. We af
firm only the qualification of an asbestosis sufferer
to seek compensation for fear of cancer as an element
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.” Id.,
at 157 (internal quotation marks, citation, and alter
ation omitted).
At the close of a 3-week trial, Hensley and CSX submitted
proposed jury instructions to the trial court. CSX proposed
two instructions—requests 30 and 33—related to Hensley’s
claim for fear-of-cancer damages. Request 30 stated the
basic requirements to obtain those damages under Ayers.

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840 CSX TRANSP., INC. v. HENSLEY
Per Curiam
Supp. Tech. Record, Exh. A, p. 4 (“Plaintiff is also alleging
that he suffers from a compensable fear of cancer. In order
to recover, Plaintiff must demonstrate . . . that the . . . fear
is genuine and serious”). Request 33 stated certain factors
the jury could consider in applying the Ayers standard.
Supp. Tech. Record, Exh. A, at 5–6. The trial court de
nied both requests over CSX’s objections, and the jury was
not instructed as to the legal standard for fear-of-cancer
damages. 17 Tr. 2410–2415; 20 id., at 2903–2904. After
two hours of deliberations, the jury found for Hensley and
awarded him $5 million in damages.
The Tennessee Court of Appeals affirmed. 278 S. W. 3d
282 (2008). It described our opinion in Ayers as “specifically
limit[ed]” to the “narrow issue” of whether a FELA plaintiff
with asbestosis can recover for fear of cancer. 278 S. W. 3d,
at 300. According to the Tennessee Court of Appeals, Ayers
“did not discuss or authorize jury instructions on this issue,
but merely ruled on substantive law.” 278 S. W. 3d, at 300
(internal quotation marks omitted). The Tennessee Court
of Appeals also reasoned that “little if any purpose would be
served by instructing the jury that the plaintiff ’s fear must
be ‘genuine and serious.’ ” Ibid. That is because “the
mere suggestion of the possibility of cancer has the potential
to evoke raw emotions,” and “[a]ny juror who might be pre
disposed to grant a large award based on shaky evidence of
a fear of cancer is unlikely to be swayed by the language
of Ayers.” Ibid. Instead, the Tennessee Court of Appeals
stated, “it is for the courts to serve as gatekeepers” by en
suring that fear-of-cancer claims “do not go to the jury unless
there is credible evidence of a ‘genuine and serious’ fear.”
Ibid.
CSX petitioned for certiorari, arguing that the Tennessee
Court of Appeals misread and misapplied this Court’s deci
sion in Ayers. CSX’s contention is correct. The ruling of
the Tennessee Court of Appeals, and the refusal of the trial
court to give an instruction, were clear error. Contrary to

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841 Cite as: 556 U. S. 838 (2009)
Per Curiam
the assertion of the Tennessee Court of Appeals, the Ayers
Court expressly recognized that several “verdict control de
vices [are] available to the trial court” when a FELA plain
tiff seeks fear-of-cancer damages. 538 U. S., at 159, n. 19.
Those “include, on a defendant’s request, a charge that each
plaintiff must prove any alleged fear to be genuine and
serious.” Ibid. CSX requested an instruction on the sub
stance of the genuine-and-serious standard, and the trial
court erred by not giving one.
The reasons given by the Tennessee Court of Appeals for
upholding the denial of an instruction on the standard do not
withstand scrutiny. The court stated that instructing the
jury on the legal standard for fear-of-cancer damages would
have been futile because cancer touches many lives and
therefore “evoke[s] [jurors’] raw emotions.” 278 S. W. 3d,
at 300. This is a serious misunderstanding of the nature and
function of the jury. The jury system is premised on the
idea that rationality and careful regard for the court’s in
structions will confine and exclude jurors’ raw emotions.
Jurors routinely serve as impartial factfinders in cases that
involve sensitive, even life-and-death matters. In those
cases, as in all cases, juries are presumed to follow the court’s
instructions. See Greer v. Miller, 483 U. S. 756, 766, n. 8
(1987). And the trial court in this case correctly instructed
the jury as to its legal duty to “follow all of the instructions.”
20 Tr. 2882.
Instructing the jury on the standard for fear-of-cancer
damages would not have been futile. To the contrary, the
fact that cancer claims could “evoke raw emotions” is a pow
erful reason to instruct the jury on the proper legal stand
ard. Giving the instruction on this point is particularly im
portant in the FELA context. That is because of the
volume of pending asbestos claims and also because the na
ture of those claims enhances the danger that a jury, without
proper instructions, could award emotional-distress damages
based on slight evidence of a plaintiff ’s fear of contracting

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842 CSX TRANSP., INC. v. HENSLEY
Per Curiam
cancer. But as this Court said in Ayers, more is required.
Although plaintiffs can seek fear-of-cancer damages in some
FELA cases, they must satisfy a high standard in order to
obtain them. 538 U. S., at 157–158, and n. 17. Refusing de
fendants’ requests to instruct the jury as to that high stand
ard would render it all but meaningless.
It is no answer that, as the Tennessee Court of Appeals
stated, courts can apply the Ayers standard when ruling on
sufficiency-of-the-evidence challenges. To be sure, Ayers
recognized that a “review of the evidence on damages for
sufficiency” is another of the “verdict control devices” avail
able to courts when plaintiffs seek fear-of-cancer damages.
Id., at 159, n. 19. But a determination that there is sufficient
evidence to send a claim to a jury is not the same as a deter
mination that a plaintiff has met the burden of proof and
should succeed on a claim outright. Put another way, a
properly instructed jury could find that a plaintiff ’s fear is
not “genuine and serious” even when there is legally suffi
cient evidence for the jury to rule for the plaintiff on the
issue. That is why Ayers recognized that sufficiency re
views and jury instructions are important and separate pro
tections against imposing unbounded liability on asbestos
defendants in fear-of-cancer claims.
When this Court in Ayers held that certain FELA plain
tiffs can recover based on their fear of developing cancer, it
struck a delicate balance between plaintiffs and defendants—
and it did so against the backdrop of systemic difficulties
posed by the “elephantine mass of asbestos cases.” Id., at
166 (internal quotation marks omitted). Jury instructions
stating the proper standard for fear-of-cancer damages were
part of that balance, id., at 159, n. 19, and courts must give
such instructions upon a defendant’s request. The ruling of
the Tennessee Court of Appeals conflicts with Ayers. The
trial court should have given the substance of the requested
instructions. See also Hedgecorth v. Union Pacific R. Co.,
210 S. W. 3d 220, 227–229 (Mo. App. 2006).

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843 Cite as: 556 U. S. 838 (2009)
Stevens, J., dissenting
The petition for certiorari is granted. The motions for
leave to file briefs amici curiae of American Tort Reform
Association et al.; Association of American Railroads; and
Washington Legal Foundation are granted. The judgment
of the Tennessee Court of Appeals is reversed, and the case
is remanded for further proceedings not inconsistent with
this opinion.
It is so ordered.
Justice Stevens, dissenting.
During his 33 years of employment at L&N Railroad (now
CSX Transportation, Inc., or CSX), respondent Thurston
Hensley was regularly exposed to a solvent that eventually
caused toxic encephalopathy, an incurable and permanent
form of brain damage that ended his ability to work. He
was also exposed to asbestos that gave rise to a chronic pul
monary condition known as asbestosis. As we have pre
viously noted, asbestosis sufferers “have a significant (one in
ten) risk of dying of mesothelioma, a fatal cancer of the lining
of the lung or abdominal cavity.” Norfolk & Western R. Co.
v. Ayers, 538 U. S. 135, 142 (2003).
In addition to claiming damages for the economic injuries
caused by those two diseases, Hensley sought damages for
his fear of developing cancer in the future. At trial, CSX
requested two jury instructions on this fear-of-cancer claim:
The first stated that Hensley had the burden of proving “that
[his] fear is genuine and serious,” App. to Pet. for Cert. 70a;
the second illustrated ways in which Hensley could prove
that his fear was genuine and serious.1 The trial court re
1 CSX’s second proposed charge (request 33) would have instructed the
jury: “In determining whether the Plaintiff has suffered emotional distress
resulting from any reasonable fear of developing cancer as a result of his
diagnosis of asbestosis, you must determine whether he has demonstrated
that his fear is genuine and serious. . . . In making this determination, you
may take into account whether or not the Plaintiff has voiced more than
a general concern about his future health, whether or not he has suffered
from insomnia or other stress-related conditions, whether or not he has

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844 CSX TRANSP., INC. v. HENSLEY
Stevens, J., dissenting
jected both instructions and instead charged the jury in ac
cordance with Tennessee’s Pattern Jury Instructions for pain
and suffering. See App. to Brief in Opposition 14; id., at 19.
The jury unanimously found CSX liable for negligently
causing Hensley’s brain damage and asbestosis, see App. to
Pet. for Cert. 58a, and awarded him $5 million in compensa
tory damages—an award CSX has never challenged as ex
cessive. App. to Brief in Opposition 23. Because CSX did
not request a special verdict or special interrogatory, we do
not know what portion (if any) of the award was meant to
compensate Hensley for his fear of developing cancer.
This Court’s decision to nullify the jury’s damages award
rests on the premise that footnote 19 in our opinion in Ayers
created a rule that requires trial judges, on a defendant’s
demand, to instruct the jury that any fear-of-cancer claim
must be genuine and serious to be compensable. The foot
note at issue states:
“In their prediction that adhering to the line drawn in
Gottshall and Metro-North will, in this setting, bank
rupt defendants, 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.” 538
U. S., at 159, n. 19 (citations omitted).
Naturally read, this footnote merely points out that a defend
ant has the right to request a genuine-and-serious instruc
sought psychiatric or medical attention for his symptoms, whether he has
consulted counselors or ministers concerning his fear, whether he has dem
onstrated any physical symptoms as a result of his fear, and whether he
has produced witnesses who can corroborate his fear.” App. to Pet. for
Cert. 70a–71a; see also Hedgecorth v. Union Pacific R. Co., 210 S. W. 3d
220, 227 (Mo. Ct. App. 2006) (noting an identical instruction requested by
Union Pacific Railroad).

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Stevens, J., dissenting
tion and that, if requested, such an instruction is available
to the trial court. It does not suggest that all requests must
be granted. And it certainly does not indicate that a court’s
decision not to give the instruction would be treated as per
se reversible error. That was my view of footnote 19 when
I joined the Ayers majority.
Since Ayers, two state appellate courts—the Tennessee
Court of Appeals in this case and the Missouri Court of Ap
peals in Hedgecorth v. Union Pacific R. Co., 210 S. W. 3d 220
(2006), cert. denied, 552 U. S. 812 (2007)—have read footnote
19 as I do. These courts have understood that the primary
duty of the trial court is to serve as a gatekeeper, refusing
to allow the jury to award fear-of-cancer damages absent evi
dence that the fear was genuine and serious. Both courts
affirmed decisions to reject genuine-and-serious instructions
and to rely instead on general pain-and-suffering instruc
tions to charge the jury. In so doing, they rightly noted that
Ayers focused on whether fear-of-cancer claims were cogni
zable under the Federal Employers’ Liability Act (FELA),
45 U. S. C. §§ 51–60, and that it “did not discuss or authorize
jury instructions.” Hedgecorth, 210 S. W. 3d, at 229; see 278
S. W. 3d 282, 300 (Tenn. App. 2008) (case below).
These courts have read Ayers correctly. Immediately
after the disputed statement in footnote 19, we made clear
that we were passing, “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.” 538 U. S., at 159. In siding with the for
mer option, we consulted and followed the common-law view
that “pain and suffering damages may include compensation
for fear of cancer when that fear accompanies a physical in
jury.” Id., at 148 (internal quotation marks omitted). We
had no occasion to, and therefore did not, offer a federal
common-law rule that would displace the various pain-and

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846 CSX TRANSP., INC. v. HENSLEY
Stevens, J., dissenting
suffering instructions routinely given to juries. In fact, we
specifically took issue with “the dissents’ readiness to ‘de
velop a federal common law’ to contain jury verdicts under
the FELA.” Id., at 158, n. 17. Yet, inexplicably, the Court
today reads Ayers—in dicta no less—to have done precisely
what it criticized.
In its rush to reverse the Tennessee Court of Appeals,
the Court issues a mandate that is bound to invite further
questions. For instance, if it is per se error for the trial
court to deny a request for a genuine-and-serious instruc
tion, is it also per se error to fail to employ particularized
verdict forms? After all, that too is a verdict-control device
listed in footnote 19. Id., at 159, n. 19. How much discre
tion, if any, is accorded the trial court to decide which devices
are necessary? Is the list of verdict-control devices identi
fied in Ayers exhaustive? The risk that the Court’s opinion
will generate more confusion than clarity is inherent in a
summary decisional process that does not give the parties an
opportunity to brief and argue the merits.
A $5 million verdict may well justify careful review of all
claims of error. But the Court’s foray into error correction
is not compelled by Ayers. A proper reading of Ayers and
an appropriate amount of respect for the jury in this case
should have counseled the Court to stay its hand. Instead,
it authorizes a fresh review of the jury’s damages award in
response to the possibility that the jury decided to compen
sate Hensley for his fear of cancer without concluding that
his fear was genuine and serious. Yet, as a practical matter,
it is hard to believe the jury would have awarded any dam
ages for Hensley’s fear of cancer if it did not believe that fear
to be genuine and serious. The trial court instructed the
jury that while Hensley had “no obligation to prove with
mathematical certainty such intangible things as pain and
suffering or loss of enjoyment of life,” he did have to prove

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Ginsburg, J., dissenting
“that a loss has, indeed, occurred.” App. to Pet. for Cert.
62a. This is an unwise summary disposition.2
Accordingly, I respectfully dissent.
Justice Ginsburg, dissenting.
The Court’s opinion in Norfolk & Western R. Co. v. Ayers,
538 U. S. 135 (2003), would support this plain and simple in
struction: “It is incumbent upon [the plaintiff] to prove that
his alleged fear [of cancer] is genuine and serious,” id., at
157. The defense-oriented instructions requested, however,
were far more elaborate, compare ante, at 839–840 (per cu
riam), with App. to Pet. for Cert. 70a–71a, and the trial
court rightly refused to give them. Nothing in Ayers re
quired the court to deliver, on its own initiative, a fitting
substitute. I would therefore deny the petition for certio
rari and dissent from the Court’s summary reversal.
2 Although the Court concludes that the trial court erred by not giving
a genuine-and-serious charge, the question whether the instructional error
was nevertheless harmless remains open to review on remand by the Ten
nessee Court of Appeals. Cf. Hedgpeth v. Pulido, 555 U. S. 57 (2008) (per
curiam); Neder v. United States, 527 U. S. 1 (1999); Rose v. Clark, 478
U. S. 570 (1986).