In a major victory for plaintiffs across the country — and for the Center for Constitutional Litigation, PC — on March 10, the US Supreme Court unanimously upheld a West Virginia decision imposing joint and several liability on a railroad-asbestos defendant in a Federal Employers Liability Act (FELA) case. Norfolk & Western R. Co. v. Ayers, et al. (01-963). In this case, the defendant/petitioner convinced the Court to grant cert on the question of whether damages should be apportioned among all conceivable tortfeasors (including absent and judgment-proof parties) based on each defendant's degree of fault. On the merits, the railroad and its dozens of amici argued that several liability was the law prior to FELA's enactment, was followed by most courts in the decades thereafter, constitutes the majority view among the states today, and, in any event, should be the law because it is "obviously" much "fairer" to innocent defendants.

The plaintiffs/respondents (former railroad workers) and their amici — including both the Attorneys General of 24 states and 23 prominent law professors — argued that the defendant and their amici had misrepresented the historical record and, furthermore, that joint and several liability was fairer to innocent plaintiffs. Ned Miltenberg of the Center for Constitutional Litigation served as counsel of record on the law professors' brief.

In an opinion authored by Justice Ginsburg and joined by all the other justices, the Court agreed with the plaintiffs and their amici on the historical and policy questions, holding that the railroad was liable for harm caused in whole or in part by its negligence and that if third parties also contributed to the harm, it is up to the railroad to implead such parties or bring a separate action for indemnity. Significantly, the Court felt no need to even address the defendants' potentially dangerous but poorly supported policy arguments.

The Court also ruled, 5-4, that workers with asbestosis can obtain "fear of cancer" damages if they can prove that their fear is "genuine and serious." In so doing, the Court reaffirmed the application under FELA of traditional common-law rules with respect to recovery for emotional distress. Thus, on the one hand, "stand-alone" claims for emotional distress (not brought on by physical injury) can be awarded only where plaintiff was within the "zone of danger" of physical impact. On the other hand, however, if a plaintiff has suffered a physical injury or disease caused by the defendant's negligence, the plaintiff is entitled to recover for the emotional distress or mental anguish proximately caused by that disease or injury. Justices Kennedy, joined by Justices O'Connor and Breyer and Chief Justice Rehnquist, dissented solely on the fear of cancer portion of the Court's opinion, expressing concern that permitting emotional distress awards in asbestos cases might deplete the assets of asbestos defendants to the point that compensation will not be available for victims suffering from mesothelioma and other cancers.

The Center for Constitutional Litigation, PC (CCL), played a major role in securing this victory. The CCL worked with and help moot the plaintiffs' Supreme Court Counsel (Georgetown Law Prof. Richard Lazarus), coordinated efforts by all of the plaintiffs' various amici, helped recruit AGs for the States' brief, and helped recruit scientists who filed an amicus brief on the relationship between asbestosis and mesothelioma, in addition to its role as counsel to the law professors as amici.

The opinion is available online at http://www.supremecourtus.gov/opinions/02pdf/01-963.pdf