Tuesday, June 2, 2009

FELA Fear of Cancer Standard

In a per curiam opinion dated June 1, 2009, the Supreme Court reversed the Tennessee Court of Appeals which had affirmed a $5,000,000 award under the Federal Employers' Liability Act.  CSX Transportation Inc. v. Hensley, 556 U.S. ___ (2009).  The Plaintiff, Thurston Hensley, sought "pain-and-suffering damages from CSX based on, among other things, fear of developing lung cancer in the future."  Considering Hensley contracted asbestosis, his fear was not unfounded.

At trial, CSX had requested a jury instruction, based on a previous Supreme Court opinion, explaining that for a fear of cancer to be recoverable the Plaintiff must establish that the fear is "genuine and serious."  See Norfolk & Western. R. Co. v. Ayers, 538 U.S. 135 (2003).  The trial court denied the request.  The jury returned a $5,000,000 judgment for the Plaintiff but, according to the Supreme Court, the damage was done.

Those two words: "genuine" and "serious" instruct the jury as to the legal standard for recovery of fear of cancer claims under FELA.  Per Monday's opinion, failure to provide the standard to the jury is "clear error."

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