Court considers shielding companies from asbestos claims

Thursday, November 7, 2002

WASHINGTON -- The Supreme Court was asked Wednesday to limit mounting asbestos lawsuits in a case that asks if the fear of getting cancer is enough to give former railroad workers damage awards.

Congress also is being urged to protect companies from asbestos suits, which carry a $200 billion price tag. There are more than 600,000 asbestos-related lawsuits before courts today and many more are expected to be filed.

Five years ago the high court ruled that railroad workers cannot sue their employers for emotional distress over exposure to cancer-causing asbestos if they had not been made ill by the fibrous mineral once commonly used in insulation and fireproofing material.

Now justices may take that one more step if they rule that railroad employees with asbestosis -- a potentially deadly lung disease -- cannot be compensated for fears of getting cancer.

Asbestos fibers, when inhaled, can cause various breathing ailments including lung cancer.

Acute crisis

Carter Phillips, an attorney for Norfolk Southern Corp., said the court recognized in the 1997 decision that there was a crisis. "That crisis is more acute now than any time in our history," he told justices.

Norfolk is appealing a $5.8 million award to six retired workers who claim they have asbestosis. The workers sued under a federal law governing railroad employee suits and part of their award was intended to compensate for the fear of developing cancer later on.

Justices debated whether that fear was reasonable, and if allowing cancer concerns to be considered in trials could lead to unpredictable and unlimited damages.

"The reason these people are worried is that they have asbestosis and people with asbestosis have a greater probability of developing cancer," Justice David H. Souter said.

Richard Lazarus, a Georgetown University law professor representing the retired workers, said the cancer fear is just one of many factors that the jury was asked to consider.

The case is from West Virginia, where trial lawyers are accused of using sympathetic courts to get money from railroads for former employees who live in other states. Phillips said 5,500 railroad asbestos cases have been filed in that state.

Justice Stephen Breyer said the cases could cost so much that someone who develops cancer later will get nothing. "It's $200 billion at stake, and the fund will run dry," he said.

Dozens of companies have sought bankruptcy protection in the past two years because of asbestos exposure claims.

Congress has refused in the past to put limits on asbestos lawsuit, but that could change with Republicans in the White House and in control of both the House and Senate.

In a second case Wednesday, some justices seemed sympathetic to Tennessee death row inmate Abu-Ali Abdur'Rahman, who claimed he received bad lawyering in his trial and that prosecutors were guilty of misconduct.

Several justices said a lower court misinterpreted the law in stopping Abdur'Rahman's appeals. They asked how other inmates in similar situations could correct mistakes.

"You're saying he's just out of luck, nothing? It seems terribly unfair," Breyer told Tennessee Attorney General Paul G. Summers.

Summers said Abdur'Rahman has exhausted his appeals under a 1996 federal law and for the Supreme Court to rule in his favor now "would be a mockery of the finality requirements" of the law.

"He's out of business," he said.

Justices blocked Abdur'Rahman's execution this spring so they could consider his case. He was convicted of stabbing to death a Nashville man and wounding the man's girlfriend in 1986.

Court members were conflicted on whether his case had been properly appealed in lower courts -- and should even be considered by the high court.

The cases are Norfolk & Western Railway Co. v. Ayers, 01-963; and Abdur'Rahman v. Bell, 01-9094.

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