Today the Supreme Court issued one decision, described below, of interest to the business community.

CSX Transportation, Inc. v. Hensley, No. 08-1034.

Under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60, railroad employees may recover for workplace injuries caused by the railroad’s negligence.  In Norfolk & Western Railway Co. v. Ayers, 538 U.S. 135 (2003), the Supreme Court held that a FELA plaintiff suffering from asbestosis may recover for “fear of cancer” as an element of his damages for pain and suffering, subject to the “important” limitation that the plaintiff must prove the fear to be “genuine and serious.”  Id. at 157.  To prevent improper recoveries from “bankrupt[ing] defendants,” Ayers identified a number of “verdict control devices,” including, “on a defendant’s request, a charge that each plaintiff must prove any alleged fear to be genuine and serious.”  Id. at 159 n.19. 

Today the Supreme Court confirmed that it meant what it said in Ayers.  In CSX Transportation, Inc. v. Hensley, No. 08-1034, the Court took the highly unusual step of summarily reversing, without merits-stage briefing or oral argument, a state appellate court’s decision approving a trial court’s refusal to give a “genuine and serious fear” jury instruction.

In Hensley, the plaintiff sued CSX Transportation, Inc. (“CSXT”) under FELA, alleging that it had negligently caused his asbestosis and seeking damages for (among other things) his fear of developing cancer in the future.  CSXT requested the jury instruction identified in Ayers—that the plaintiff must prove his fear to be “genuine and serious”—but the trial court refused to give it.  The jury ultimately returned a verdict for the plaintiff, awarding damages of $5,000,000.  The Tennessee Court of Appeals affirmed, and the Tennessee Supreme Court denied review.  CSXT then filed a petition for certiorari, arguing that the trial court had erred in refusing to give the jury a “genuine and serious fear” instruction and that the Tennessee Court of Appeals’ decision was inconsistent with Ayers.
The Supreme Court granted the petition and, on the basis of the petition-stage briefing alone, summarily reversed in a per curiam opinion.  The Court held that the Tennessee Court of Appeals had committed “clear error” (slip op. 3); that its decision “conflicts with Ayers” (id. at 5); and that refusing to instruct the jury that the plaintiff’s fear of cancer must be “genuine and serious” renders this important limitation on recovery “all but meaningless” (id. at 4).  The Court emphasized that the instruction “protect[s] against imposing unbounded liability on asbestos defendants” and that allowing trial courts to omit the charge would exacerbate the “systemic difficulties posed by the ‘elephantine mass of asbestos cases.’”  Id. at 5 (quoting Ayers, 538 U.S. at 166).

The case was decided by a 7-2 vote, with Justices Stevens and Ginsburg filing separate dissents.  Justice Stevens argued that a trial court’s refusal to give a “genuine and serious fear” instruction should not be treated as reversible error per se.  Justice Ginsburg argued that, although such a charge must be given upon request, the trial court was not obligated to give the particular one proffered here, which Justice Ginsburg believed to be too defendant-oriented.
Mayer Brown represented CSXT in the Supreme Court.