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The U. S. Supreme Court has recently ruled that a Tennessee railroad worker is not entitled to the $5 million awarded him by a jury for his long-term exposure to asbestos. In CSX Transp., Inc. v. Hensley, 129 S.Ct. 2139 (2009), the High Court ruled against Thurston Hensley, who sued his employer, CSX, under the Federal Employers’ Liability Act (FELA) for monetary damages based in part on his fear of developing cancer in the future. Hensley suffered from brain damage and the lung disease asbestosis. At trial, Hensley sought pain and suffering damages that included fear of developing lung cancer.

The trial judge refused to submit jury instructions proposed by CSX that would have required jurors to find the fear was “genuine and serious” and outlining standards of proof established in the Supreme Court decision, Norfolk & Western R. Co v. Ayers, 123 S.Ct. 1210 (2003). In a 7-2 ruling, the Supreme Court sided with CSX, saying the trial judge erred in delivering the jury instructions. The Court stated: “Although plaintiffs can seek fear-of-cancer damages in some FELA cases, they must satisfy a high standard in order to obtain them”. Hensley, at 2141.

Thus, it appears that a majority of the Court has gone much farther in its requirements of proof than Congress intended. Hopefully, this issue will be revisited by the Court.

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