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Remedies Keyed to Tabb, 8th
Norfolk & Western Railway Co. v. Ayers
Citation:
538 U.S. 135 (2003)Facts
The six asbestosis claimants brought this FELA action against their former employer, Norfolk & Western Railway Company, in West Virginia state court. Norfolk allegedly negligently exposed them to asbestos during their employment, causing them to contract asbestosis. Five of the six claimants had smoking histories, and two continued smoking after diagnosis. Expert testimony established that asbestosis sufferers with smoking histories have significantly increased risk of lung cancer (39% mortality risk) and a 10% risk of dying from mesothelioma. Two claimants had significant asbestos exposure from other employers: Carl Butler worked as a pipefitter elsewhere for 33 years but only three months at Norfolk, and Freeman Ayers was exposed to asbestos for several years at auto-body shops. The trial court instructed the jury that damages could not be awarded for cancer itself or increased cancer risk, but that fear of cancer related to proven physical injury from asbestos was compensable as pain and suffering. The court also refused to instruct the jury to apportion damages between Norfolk and other employers.
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