CSX v. Hensley - SCOTUS mandates jury instruction in "Fear of cancer" asbestos case

In Ayers v. Norfok & Western Rwy. Co. the Supreme Court, several years ago affirmed that because one who has asbestosis is at greatly increased risk of developing a different disease - lung cancer - a "fear of cancer" claim should be recognized under the FELA (Federal Employer's Liability Act) which governs injuries to railroad workers in interstate commerce.

The Supreme Court has now overturned a $5 million judgment in CSX v. Hensley because the Tennessee court refused to instruct the jury that the worker had to prove that his fear was "genuine and serious". The court affirmed that we expect juries to act raionally and to follow instructions, so the instruction is mandated, not to be sloughed off.

The majority (Stevens alone dissented) converted this bit of Ayers dicta into a mandatory instruction absent which a judgment will not stand:

“In their prediction that adhering to the line drawn in Gottshall and Metro-North will, in this setting, bankrupt defendants, the dissents largely disregard, inter alia, the verdict control devices available to the trial court. These include, on a defendant's request, a charge that each plaintiff must prove any alleged fear to be genuine and serious, review of the evidence on damages for sufficiency, and particularized verdict forms.” Id., at 159, n. 19

The Tennessee Court of Appeals ruling, 278 S.W.3d 282, 299 (Tenn. Ct. App. 2008) shows that plainitff's counsel acquiesced in the court's instruction. The verdict suggests that the jury did in fact think the fear was "genuine and serious", and the court found the evidence sufficient. The object lesson here is that instructions that seem to favor your client should not be accepted at face value. Sometimes it is wise to accept something less than ideal, that you can live with, to insure against appeal. One must keep in mind even at trial the atmosphere at the highest appellate levels. And here that means a conservative Supreme Court, none of whose members has ever been a trial judge or trial lawyer. The justices have here demonstrated themselves ready to develop what they claim to abjure - a preemptive federal common law that governs even trials in state courts with concurrent jursidiction over FELA claims.

p.s. - Ayers also demonstrated the vitality of joint and several liability, supported by a brilliant amicus brief written by Richard Wright on behalf of a bunch of tort law professors