Sometimes it is easy to see why the U.S. Supreme Court takes up certain cases, and sometimes the Justices' motives are quite obscure.

Norfolk & Western Railways Co. v. Ayers et. al. - which the Court recently decided to review - is one case that has left a lot of experienced torts scholars scratching their heads. The major issue in the case seems already to have been clearly decided by the Court - and resolved quite recently, as well.

The Rare Tort Case That Went All the Way to the Supreme Court

Tort cases don't often make it to the United States Supreme Court. Tort law is mostly the province of the state - not federal - courts, and the Court is not in the business of interpreting state law.

FELA allows railroad workers to sue their employers under the principles of common law tort. ("Common law" is judge-made law, the sum of prior judicial decisions).

But the fact that FELA, a federal law, is involved, still does not explain why the Court took the case: FELA affects a very narrow slice of American industry. Norfolk's real importance may be that it is not only a FELA case, but also an asbestos case. That is the reason why so many people are watching its outcome, and that might be the reason the Court granted review.

While the case happens to be proceeding under a federal statute, what the Supreme Court says about how to litigate asbestos cases will probably apply much more generally: The decision is likely to have a very strong persuasive effect on state tort law asbestos litigations occurring around the country.

The Facts of the Norfolk Case

The Norfolk case began when six former railroad workers sued the railroad - the Norfolk & Western Railways Company, or "Norfolk"- under FELA, alleging that they had been exposed to asbestos at their workplace. (It is likely that at least some of the six also had sued or were suing other defendants, since they moved during jury selection to strike any reference to other possible defendant during the trial.)

The jury found that Norfolk could have warned the workers of the dangers of asbestos, but did not; that the six were suffering from a respiratory disease called asbestosis caused by Norfolk's failure to warn; and that three of the six who were smokers were partially responsible for their illness.

The jury then awarded the six $5.8 million in aggregate, which the court reduced to $4.9 million. The trial court declined to overturn the verdict, and the West Virginia Supreme Court refused an appeal. Then the U.S. Supreme Court, to the surprise of many, took the case.

The Most Important Issue Norfolk Raises for the Supreme Court

Norfolk is going to argue two issues to the Court. First, it claims that, as a matter of law, the jury should not have been instructed by the trial judge that it could award damages to the workers for their current "fear of developing cancer."

In this column, I am going to discuss only the first argument. It is the one that clearly could have the greatest spillover effects onto tort litigation nationwide. But what is puzzling is that it seems that the Supreme Court already decided the issue in a clear, recent prior ruling.

Can Damages Be Based on Fear Alone? The Supreme Court Tells Plaintiffs to Wait

The workers have a simple argument: Reasonable fear is a real harm that causes damage and should be compensated. There is already an important precedent addressing this issue.

The last time the Supreme Court looked at the asbestos issue in the context of FELA was in a 1997 case called Buckley v. Metro North R.R. Co.. There, the plaintiffs were workers in Grand Central Station who had been covered with asbestos every day for years; no one doubted it was in their lungs. They argued that they should be able to sue for fear of developing an asbestos-related disease, even if did not yet have symptoms of any disease. Some state supreme courts supported their position.

In Buckley the court, in a 7-2 decision authored by Justice Stephen Breyer, took what many thought was a conservative, hard line with the plaintiffs. It said that a worker would have to wait "unless, and until, he manifests symptoms of a disease."

The plaintiffs' bar, of course, was disappointed, but the decision made some sense: Plaintiffs could sue, just not right now, to avoid tying up the system with cases brought by people who would never get sick at all.

How the Norfolk and Buckley Workers Are Different From Each Other

Unlike the workers in Buckley, the workers in Norfolk were manifesting a disease when they went before the jury. They alleged, and the jury found, that they were suffering from asbestosis, which is a very common and usually nonmalignant disease often caused by exposure to asbestosis.

Asbestosis is a very well documented public health phenomena. When asbestos fibers enter the lung, they cause the tissue to harden and scar around them. In rare cases, asbestosis can caused extremely severe difficulties in breathing. In most cases, it causes varying degrees of impairment in mobility and lifestyle.

The other 20% are people who have a disease. Most of them have some form of asbestosis. A very small number have either lung cancer or mesothelioma, a special kind of cancer that only arises from exposure to asbestos. This latter group--perhaps 2-5% of all lawsuits--are people who will die from their illnesses.

The argument by the workers in Norfolk is that they should be compensated for the asbestosis they have now and the fear that that have of getting either lung cancer or mesothelioma later. They argued that epidemiological evidence shows that 10%-15% of people who have asbestosis will develop a fatal disease like lung cancer or mesothelioma.

After all, the Court seemed to say in Buckley that if a worker had an asbestos-related disease, then they could sue for the fear of getting cancer.

The Puzzle of Why the Court Took the Case: One Possible Explanation

If Buckley resolved the issue, why did the Court still take the case? There are two possible explanations.

First, the Court may want to clarify what it said in Buckley about when a physical injury can warrant a suit for "fear of developing cancer" under federal common law. Buckley left open a loophole the Court might want to close.

The plaintiffs in Norfolk argued that their suit was nothing like Buckley because they already had an asbestos-related "injury," namely asbestosis. In their brief to the Court, they use a very powerful, but homey example: Ever since the Nineteenth Century, they pointed out, courts have allowed victims bitten by rabid dogs to sue for both the bite (the medical expenses related to seeing the doctor, etc.) and the emotional distress associated with the fear of the victim's getting rabies.

The Norfolk workers argue that they too have been "bitten"; now they are suffering fear and anxiety to see if the "rabies" will appear. But that metaphor mischaracterizes the connection between asbestosis and cancer - which is unlike the connection between dog bite and rabies.

While it is true that, according to a handful of studies, at least 10% of persons with pronounced asbestosis also develop a cancerous condition, that is not because asbestosis causes cancer, the way a dog bite causes rabies. It is because asbestos causes both asbestosis and cancer, and asbestosis has a shorter latency period.

But the plaintiffs in Norfolk still have an additional argument to make: Asbestosis may not cause cancer, but suffering from it, they contend, is at least good evidence that one received a higher-than-usual dose of asbestos while working - and thus will be prone to get cancer later.

Some courts - such as the Florida court that issued a 1985 decision in Eagle-Picher Industries v. Cox - have adopted this view. But the U.S. Supreme Court in Buckley did not.

The problem is, it is not clear exactly what view, exactly, the Court in Buckley did adopt. And the Court may want to resolve this very confusion.

The Puzzle of Why the Court Took the Case: A Second Possible Explanation

Second, the Court may have granted review because it wants to take a "hard look" at the jury's conclusion that these six workers are suffering from a disease at all. The Court may be very anxious not to allow Buckley to be unraveled by a rush of asbestotic plaintiffs whose real injury is not the impairment of breathing, but their fear of getting cancer.

The railroad in Norfolk argues, along these lines, that the workers have not yet suffered injury at all. In its pleadings, it makes pointed references to the alleged thinness of the evidence of "real asbestosis," and suggests that the plaintiffs are in fact, quite healthy, given their ages and personal histories.

Of course, the Court - which addresses legal issues alone - is not allowed to overturn a jury's factual conclusions. But, given that no other appeals court has even looked at the underlying case, one wonders if some members of the Court may be itching for a chance to decry the current failure of the state courts to police the practice of contemporary asbestos litigation.

Recently, the business press has been full of articles describing how easy, in theory, it is for a lawyer to find a doctor who will certify that a worker exposed to asbestosis years ago is now suffering a respiratory impairment. Congress has held hearings on the "asbestos crisis" already this year, and more may come. It may have occurred to the Supreme Court, too, that as long as asbestosis itself can be a basis for suit, the crisis will continue.

Norfolk, then, may be the U.S. Supreme Court's way of telling judges to pay more attention to the way injury is claimed and judged in asbestos cases around the country. If the Court goes out of its way to overturn an obscure jury verdict in West Virginia, it may be telling the judiciary that it is time for them to put their house in order, before Congress does it for them.