'Fear of Cancer': A Med Mal Nightmare?

The Norfolk Decision

Alleging that the Norfolk and Western Railway Company had negligently exposed them to asbestos and thereby caused them to contract asbestosis, the plaintiffs, six former Norfolk employees, filed suit in a West Virginia state court under the Federal Employers Liability Act (FELA). As an element of damages, the plaintiffs 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 part of the damages recoverable for pain and suffering. The trial court also instructed the jury not to reduce recoveries because of non-railroad exposure to asbestos, as long as the jury found that Norfolk was negligent and that 'dust exposures at Norfolk contributed, however slightly, to the plaintiff's injuries.' Id. at 1216. The trial court rejected proposed jury instructions submitted by Norfolk that would have 1) ruled out damages for fear of cancer unless the plaintiff 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 plaintiff, and the Supreme Court of Appeals of West Virginia denied discretionary review.