'Fear of Cancer': A Med Mal Nightmare?

On writ of certiorari, the U.S. Supreme Court held that mental anguish damages resulting from the fear of developing cancer may be recovered under the FELA by a railroad worker suffering from the actionable injury asbestosis caused by work-related exposure to asbestos. Further, the Court held that the trial judge correctly stated the law when he charged the jury that an asbestosis plaintiff, upon demonstrating a reasonable fear of cancer stemming from his present disease, could recover for that fear as part of asbestosis-related pain and suffering damages. Id. at 1217, 1219-23.

Jury Instructions

Norfolk moved to exclude all evidence referring to cancer as irrelevant and prejudicial. The trial court denied the motion, and plaintiffs were allowed to present evidence relating to cancer, including expert testimony that asbestosis sufferers with smoking histories have a significantly increased risk of developing lung cancer (five of the six plaintiffs had smoking histories). At the close of evidence, the trial court concluded that no asbestosis claimant had proven that he was reasonably certain to develop cancer. Accordingly, the trial judge instructed the jury that damages could not be awarded to any claimant 'for cancer or any increased risk of cancer.' Testimony about cancer, the trial judge explained, was relevant 'only to judge the genuineness of plaintiff's claims of fear of developing cancer.' On that issue, the trial court charged the jury as follows: 'Any plaintiff who has demonstrated that he has developed a reasonable fear of cancer that is related to proven physical injury from asbestos is entitled to be compensated for that fear as a part of the damages you may award for pain and suffering.' Id. at 1216 (citation omitted).

With this instruction, the trial judge rejected Norfolk's proposed charge, which would have ruled out damages for any asbestosis sufferer's fear of cancer, unless the plaintiff demonstrated both 'an actual likelihood of developing cancer' and 'physical manifestations' of the alleged fear.

The initial question considered by the U.S. Supreme Court was whether the trial judge's charge to the jury, quoted above, was a correct application of the law under FELA. Here, the Supreme Court sought guidance from its previous decisions in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994), and Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424 (1997). In Gottshall, the plaintiff alleged that he witnessed a co-worker's death while on the job, and that the episode caused him severe emotional distress. He sought to recover damages from his employer, Conrail, for mental or emotional harm directly brought about by physical injury. See Gottshall, supra, 512 U.S. at 544.

Reversing a Court of Appeals judgment in favor of the plaintiff, the Supreme Court found that recognition of claims for negligently inflicted emotional distress, in this context, would 'hold out the very real possibility of nearly infinite and unpredictable liability for defendants.' Id. at 546. The Supreme Court adopted the zone-of-danger test to delineate the proper scope of an employer's duty under FELA to avoid subjecting its employees to negligently inflicted emotional distress. That test confined recovery for 'stand-alone' emotional distress claims to plaintiffs who 1) sustained a physical impact as a result of the defendant's negligent conduct; or 2) were placed in immediate risk of physical harm by that conduct (namely, those who escaped instant physical harm, but were within the zone of danger of physical impact). Id., 547-548.

In Metro-North, the Court applied the zone-of-danger test to a claim for damages under FELA, one element of which was fear of cancer stemming from exposure to asbestos. In Metro-North, the plaintiff had been intensively exposed to asbestos while working as a pipe fitter for Metro-North in New York City's Grand Central Terminal. At the time of his lawsuit, however, he was in good health. The Supreme Court rejected his entire claim for relief, concluding that exposure alone was insufficient to show 'physical impact' under the zone-of-danger test. See 521 U.S. at 430. The Supreme Court expressed its concern that contact with a carcinogenic substance, no matter how extensive, 'does not offer much help in separating valid from invalid emotional distress claims.' Id. at 434. The evaluation problem would be formidable, the Supreme Court claim ed, 'because contacts, even extensive contacts, with serious carcinogens are common.' Ibid. As in Gottshall, the Court distinguished stand-alone distress claims from actions for damages for emotional pain and suffering tied to a physical injury: 'Common law courts do permit a plaintiff who suffers from a disease to recover for related negligently caused emotional distress.' Id., 521 U.S. at 432 (emphasis supplied). When a plaintiff suffers from a disease, common law courts traditionally have made a 'special effort' to value related emotional 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.

Reviewing this precedent in Ayers, the Supreme Court observed: 'In sum, our decisions in Gottshall and Metro-North describe 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 emotional distress claims brought on by physical injury, for which pain and suffering recovery is permitted.' Ayers, supra, 123 S.Ct. at 1218.

The Supreme Court also considered state court decisions that upheld recovery for asbestosis plaintiffs seeking compensation for fear of cancer. Arguing against this trend, Norfolk and its supporting amici (including a brief filed by the Solicitor General) argued that the asbestosis claimants' alleged asbestos fears were too remote from asbestosis to warrant inclusion in their pain and suffering awards. The 'separate disease rule,' under which courts have held that the statute of limitations runs separately for each asbestos-related disease, was cited in support of this argument. Id. at 1220-21. The Supreme Court distinguished this authority with specific consideration of the proofs advanced in the state trial court: 'But the asbestosis claimants did not seek, and the trial court did not allow, discrete damages for their increased risk of future cancer ' 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 or she may recover from fear …. 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. Id. at 1221-22 (emphasis in original).

In its brief to the Supreme Court, 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.' Id. at 1223. The Supreme Court answered this question affirmatively, but 'with an important reservation. We affirm 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.

Accordingly, the Supreme Court found that the trial judge properly adjudicated plaintiffs' claims with those cases in which 'fear of future injury stems from a current injury [rather than] those presenting a stand-alone claim for negligent infliction of emotional distress.' Id. at 1224.

Implications of Ayers for Med Mal Litigation

Whether the Ayers decision will, or should, extend to state court medical malpractice litigation remains to be seen. The future course of the Ayers decision in state courts will certainly be guided by common law precedent among our state courts.

For example, several recent decisions of the Pennsylvania Supreme Court reflect concerns similar to those addressed in Ayers. In an older case, Gradel v. Inouye, 421 A.2d 674 (Pa. 1980), the plaintiffs filed a medical malpractice action against an orthopedic surgeon who failed to remove a growing soft-tissue tumor in a young boy's arm. Due to the delay in diagnosis, the tumor invaded the bone in the boy's arm, which was subsequently amputated. The Supreme Court of Pennsylvania held that in awarding damages, it was proper for the jury to consider testimony concerning the minor plaintiff's increased risk of recurrence of cancer.

In Simmons v. Pacor Inc., 674 A.2d 232 (Pa. 1996), the same court rejected claims for increased risk and fear of cancer in the asbestos context. Plaintiffs in Simmons sought recovery of damages for injuries caused by occupational exposure to asbestos. As an element of damages, the plaintiffs sought recoveries for increased risk and fear of cancer. The evidence established, however, that none of the plaintiffs had contracted mesothelioma or cancer at the time litigation commenced, but had instead been diagnosed with asbestos-related pleural thickening (the formation of calcified tissue on the membrane surrounding the lungs). The issue for review by the Pennsylvania Supreme Court was whether asymptomatic pleural thickening, a condition not accompanied by disabling consequences or physical impairment, was a compensable injury. That court held that it was not a compensable injury giving rise to a cause of action, based on the fact that there was no physical injury that necessitated the award of damages. Further, the Pennsylvania Supreme Court observed that under the two-disease rule, plaintiffs were not precluded from subsequently commencing an action for an asbestos-related injury when symptoms developed and physiologic impairments began. Id., 674 A.2d at 236-237.

Most recently, the Pennsylvania Supreme Court addressed the issue of whether a plaintiff in a medical malpractice action could introduce, as an element of damages, evidence regarding his increased risk of recurrence of cancer. In Zieber v. Bogert, No. 30 EAP 2000 (June 19, 2001), the court held that evidence of future effects of a disease already contracted, such as the probability of metastasis of cancer, was a proper consideration for the jury when awarding damages. In language consistent with the rationale of Ayers, the Pennsylvania Supreme Court explained: 'Appellants contend that damages for increased risk and/or fear of recurrence of cancer are ' speculative. As noted, however, this was not the foundation upon which Simmons rested. Rather, the decision was based on the lack of physical injury and the ability of plaintiffs, pursuant to the two-disease rule, to file a second action if and when the symptoms arise. Neither of these conditions exists in the instant case. Our decision in Simmons expressly recognized that a plaintiff could seek damages for his mental anguish for fear and increased risk of cancer if and when the cancer develops. Here, Zieber's cancer has developed and he has already suffered debilitating effects. The requirement of a physical injury has therefore clearly been established. Moreover, [plaintiffs] may not commence a second action, if and when the cancer recurs, based upon the same alleged negligence of Dr. Bogert in failing to properly diagnose the condition.' Zieber v. Bogert, Slip Op. at 6.

What Does Ayers Mean To Med-Mal Practice?

A common element of both Ayers and the Pennsylvania state decisions was the presence of demonstrable physical injury. Accordingly, extension of the Ayers decision into medical malpractice litigation would depend on many factors, the first of which should be proven physical injury by the plaintiff. The Ayers decision itself suggests other relevant factors. As the Supreme Court noted, plaintiffs would bear the burden of proving that their alleged fear was 'genuine and serious.' Reviewing the trial court record in this respect, the Supreme Court observed: '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.' Ayers, supra, 123 S.Ct. at 1224.

Secondly, special interrogatories to the jury should also be considered in the verdict form. In this respect, the Supreme Court observed in Ayers that although Norfolk submitted proposed verdict forms, 'those forms did not call for a jury specification of the amount of damages, if any, awarded for fear of cancer. Thus ' it is impossible to tell from the verdict's return, whether the jury ascribed any part of the damages awards to the alleged cancer fear, and if so, how much.' Id.

Finally, as recognized in Justice Anthony Kennedy's opinion concurring and dissenting in part, trial courts should also consider 'what relationship between a disease and associated emotional distress should entitle a person to compensation for the distress as pain and suffering?' Id., 123 S.Ct. at 1230 (Kennedy, J., concurring and dissenting in part). Justice Kennedy continued: 'To state that some relationship exists 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 ' conceived, as I understand it, by all parties ' and it is this: There is no demonstrated causal link between asbestosis and cancer '

'Correlation is not causation. Absent causation, it is difficult to conceive why asbestosis is any more than marginally more suitable a predicate for recovering for fear of cancer than the fact of mere exposure. This correlation the Court relies upon does not establish 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.' Id. at 1231-32.

Conclusion

The decision in Norfolk and Western Railway v. Ayers would appear to have been guided as much by the trial court record as by previous Supreme Court precedent. The complexity of cancer as a disease process, and its overlying emotional burden, should caution the courts against premature expansion of the Ayers decision into the field of medical malpractice litigation. If and when similar 'fear of cancer' claims emerge in the professional liability context, practitioners in the field should consider carefully both the procedural and substantive issues addressed by the Justices in Ayers.

Can fear of cancer be litigated? And if so, what is the potential impact on the med mal community? On March 10 the U.S. Supreme Court announced a decision in Norfolk and Western Railway Co. v. Ayers , 123 S.Ct. 1210 (2003), in which it ruled by a five to four vote that railway workers who suffer from asbestosis would be allowed to recover damages for fear of asbestos-related cancer. Rail-worker plaintiffs would still bear the burden of proof that their fear was 'genuine and serious,' but the Supreme Court did not specify how such evidence would be demonstrated or refuted. This article considers whether the Ayers decision could extend to medical malpractice litigation.

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.

On writ of certiorari, the U.S. Supreme Court held that mental anguish damages resulting from the fear of developing cancer may be recovered under the FELA by a railroad worker suffering from the actionable injury asbestosis caused by work-related exposure to asbestos. Further, the Court held that the trial judge correctly stated the law when he charged the jury that an asbestosis plaintiff, upon demonstrating a reasonable fear of cancer stemming from his present disease, could recover for that fear as part of asbestosis-related pain and suffering damages. Id. at 1217, 1219-23.

Jury Instructions

Norfolk moved to exclude all evidence referring to cancer as irrelevant and prejudicial. The trial court denied the motion, and plaintiffs were allowed to present evidence relating to cancer, including expert testimony that asbestosis sufferers with smoking histories have a significantly increased risk of developing lung cancer (five of the six plaintiffs had smoking histories). At the close of evidence, the trial court concluded that no asbestosis claimant had proven that he was reasonably certain to develop cancer. Accordingly, the trial judge instructed the jury that damages could not be awarded to any claimant 'for cancer or any increased risk of cancer.' Testimony about cancer, the trial judge explained, was relevant 'only to judge the genuineness of plaintiff's claims of fear of developing cancer.' On that issue, the trial court charged the jury as follows: 'Any plaintiff who has demonstrated that he has developed a reasonable fear of cancer that is related to proven physical injury from asbestos is entitled to be compensated for that fear as a part of the damages you may award for pain and suffering.' Id. at 1216 (citation omitted).

With this instruction, the trial judge rejected Norfolk's proposed charge, which would have ruled out damages for any asbestosis sufferer's fear of cancer, unless the plaintiff demonstrated both 'an actual likelihood of developing cancer' and 'physical manifestations' of the alleged fear.

The initial question considered by the U.S. Supreme Court was whether the trial judge's charge to the jury, quoted above, was a correct application of the law under FELA. Here, the Supreme Court sought guidance from its previous decisions in Consolidated Rail Corp. v. Gottshall , 512 U.S. 532 (1994), and Metro-North Commuter R. Co. v. Buckley , 521 U.S. 424 (1997). In Gottshall, the plaintiff alleged that he witnessed a co-worker's death while on the job, and that the episode caused him severe emotional distress. He sought to recover damages from his employer, Conrail, for mental or emotional harm directly brought about by physical injury. See Gottshall, supra, 512 U.S. at 544.

Reversing a Court of Appeals judgment in favor of the plaintiff, the Supreme Court found that recognition of claims for negligently inflicted emotional distress, in this context, would 'hold out the very real possibility of nearly infinite and unpredictable liability for defendants.' Id. at 546. The Supreme Court adopted the zone-of-danger test to delineate the proper scope of an employer's duty under FELA to avoid subjecting its employees to negligently inflicted emotional distress. That test confined recovery for 'stand-alone' emotional distress claims to plaintiffs who 1) sustained a physical impact as a result of the defendant's negligent conduct; or 2) were placed in immediate risk of physical harm by that conduct (namely, those who escaped instant physical harm, but were within the zone of danger of physical impact). Id., 547-548.

In Metro-North, the Court applied the zone-of-danger test to a claim for damages under FELA, one element of which was fear of cancer stemming from exposure to asbestos. In Metro-North, the plaintiff had been intensively exposed to asbestos while working as a pipe fitter for Metro-North in New York City's Grand Central Terminal. At the time of his lawsuit, however, he was in good health. The Supreme Court rejected his entire claim for relief, concluding that exposure alone was insufficient to show 'physical impact' under the zone-of-danger test. See 521 U.S. at 430. The Supreme Court expressed its concern that contact with a carcinogenic substance, no matter how extensive, 'does not offer much help in separating valid from invalid emotional distress claims.' Id. at 434. The evaluation problem would be formidable, the Supreme Court claim ed, 'because contacts, even extensive contacts, with serious carcinogens are common.' Ibid. As in Gottshall, the Court distinguished stand-alone distress claims from actions for damages for emotional pain and suffering tied to a physical injury: 'Common law courts do permit a plaintiff who suffers from a disease to recover for related negligently caused emotional distress.' Id., 521 U.S. at 432 (emphasis supplied). When a plaintiff suffers from a disease, common law courts traditionally have made a 'special effort' to value related emotional 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.

Reviewing this precedent in Ayers, the Supreme Court observed: 'In sum, our decisions in Gottshall and Metro-North describe 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 emotional distress claims brought on by physical injury, for which pain and suffering recovery is permitted.' Ayers, supra, 123 S.Ct. at 1218.

The Supreme Court also considered state court decisions that upheld recovery for asbestosis plaintiffs seeking compensation for fear of cancer. Arguing against this trend, Norfolk and its supporting amici (including a brief filed by the Solicitor General) argued that the asbestosis claimants' alleged asbestos fears were too remote from asbestosis to warrant inclusion in their pain and suffering awards. The 'separate disease rule,' under which courts have held that the statute of limitations runs separately for each asbestos-related disease, was cited in support of this argument. Id. at 1220-21. The Supreme Court distinguished this authority with specific consideration of the proofs advanced in the state trial court: 'But the asbestosis claimants did not seek, and the trial court did not allow, discrete damages for their increased risk of future cancer ' 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 or she may recover from fear …. 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. Id. at 1221-22 (emphasis in original).

In its brief to the Supreme Court, 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.' Id. at 1223. The Supreme Court answered this question affirmatively, but 'with an important reservation. We affirm 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.

Accordingly, the Supreme Court found that the trial judge properly adjudicated plaintiffs' claims with those cases in which 'fear of future injury stems from a current injury [rather than] those presenting a stand-alone claim for negligent infliction of emotional distress.' Id. at 1224.

Implications of Ayers for Med Mal Litigation

Whether the Ayers decision will, or should, extend to state court medical malpractice litigation remains to be seen. The future course of the Ayers decision in state courts will certainly be guided by common law precedent among our state courts.

For example, several recent decisions of the Pennsylvania Supreme Court reflect concerns similar to those addressed in Ayers. In an older case, Gradel v. Inouye , 421 A.2d 674 (Pa. 1980), the plaintiffs filed a medical malpractice action against an orthopedic surgeon who failed to remove a growing soft-tissue tumor in a young boy's arm. Due to the delay in diagnosis, the tumor invaded the bone in the boy's arm, which was subsequently amputated. The Supreme Court of Pennsylvania held that in awarding damages, it was proper for the jury to consider testimony concerning the minor plaintiff's increased risk of recurrence of cancer.

In Simmons v. Pacor Inc. , 674 A.2d 232 (Pa. 1996), the same court rejected claims for increased risk and fear of cancer in the asbestos context. Plaintiffs in Simmons sought recovery of damages for injuries caused by occupational exposure to asbestos. As an element of damages, the plaintiffs sought recoveries for increased risk and fear of cancer. The evidence established, however, that none of the plaintiffs had contracted mesothelioma or cancer at the time litigation commenced, but had instead been diagnosed with asbestos-related pleural thickening (the formation of calcified tissue on the membrane surrounding the lungs). The issue for review by the Pennsylvania Supreme Court was whether asymptomatic pleural thickening, a condition not accompanied by disabling consequences or physical impairment, was a compensable injury. That court held that it was not a compensable injury giving rise to a cause of action, based on the fact that there was no physical injury that necessitated the award of damages. Further, the Pennsylvania Supreme Court observed that under the two-disease rule, plaintiffs were not precluded from subsequently commencing an action for an asbestos-related injury when symptoms developed and physiologic impairments began. Id., 674 A.2d at 236-237.

Most recently, the Pennsylvania Supreme Court addressed the issue of whether a plaintiff in a medical malpractice action could introduce, as an element of damages, evidence regarding his increased risk of recurrence of cancer. In Zieber v. Bogert, No. 30 EAP 2000 (June 19, 2001), the court held that evidence of future effects of a disease already contracted, such as the probability of metastasis of cancer, was a proper consideration for the jury when awarding damages. In language consistent with the rationale of Ayers, the Pennsylvania Supreme Court explained: 'Appellants contend that damages for increased risk and/or fear of recurrence of cancer are ' speculative. As noted, however, this was not the foundation upon which Simmons rested. Rather, the decision was based on the lack of physical injury and the ability of plaintiffs, pursuant to the two-disease rule, to file a second action if and when the symptoms arise. Neither of these conditions exists in the instant case. Our decision in Simmons expressly recognized that a plaintiff could seek damages for his mental anguish for fear and increased risk of cancer if and when the cancer develops. Here, Zieber's cancer has developed and he has already suffered debilitating effects. The requirement of a physical injury has therefore clearly been established. Moreover, [plaintiffs] may not commence a second action, if and when the cancer recurs, based upon the same alleged negligence of Dr. Bogert in failing to properly diagnose the condition.' Zieber v. Bogert, Slip Op. at 6.

What Does Ayers Mean To Med-Mal Practice?

A common element of both Ayers and the Pennsylvania state decisions was the presence of demonstrable physical injury. Accordingly, extension of the Ayers decision into medical malpractice litigation would depend on many factors, the first of which should be proven physical injury by the plaintiff. The Ayers decision itself suggests other relevant factors. As the Supreme Court noted, plaintiffs would bear the burden of proving that their alleged fear was 'genuine and serious.' Reviewing the trial court record in this respect, the Supreme Court observed: '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.' Ayers, supra, 123 S.Ct. at 1224.

Secondly, special interrogatories to the jury should also be considered in the verdict form. In this respect, the Supreme Court observed in Ayers that although Norfolk submitted proposed verdict forms, 'those forms did not call for a jury specification of the amount of damages, if any, awarded for fear of cancer. Thus ' it is impossible to tell from the verdict's return, whether the jury ascribed any part of the damages awards to the alleged cancer fear, and if so, how much.' Id.

Finally, as recognized in Justice Anthony Kennedy's opinion concurring and dissenting in part, trial courts should also consider 'what relationship between a disease and associated emotional distress should entitle a person to compensation for the distress as pain and suffering?' Id., 123 S.Ct. at 1230 (Kennedy, J., concurring and dissenting in part). Justice Kennedy continued: 'To state that some relationship exists 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 ' conceived, as I understand it, by all parties ' and it is this: There is no demonstrated causal link between asbestosis and cancer '

'Correlation is not causation. Absent causation, it is difficult to conceive why asbestosis is any more than marginally more suitable a predicate for recovering for fear of cancer than the fact of mere exposure. This correlation the Court relies upon does not establish 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.' Id. at 1231-32.

Conclusion

The decision in Norfolk and Western Railway v. Ayers would appear to have been guided as much by the trial court record as by previous Supreme Court precedent. The complexity of cancer as a disease process, and its overlying emotional burden, should caution the courts against premature expansion of the Ayers decision into the field of medical malpractice litigation. If and when similar 'fear of cancer' claims emerge in the professional liability context, practitioners in the field should consider carefully both the procedural and substantive issues addressed by the Justices in Ayers.