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ARTICLE · 03 JUNE 2009

Supreme Court Decision Alert - June 1, 2009

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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.

United StatesLitigation, Mediation & Arbitration
Andrew Tauber
Andrew Tauber
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Originally published June 1, 2009

Keywords: Supreme Court, CSX Transportation v. Hensley, Federal Employers' Liability Act, FELA, Norfolk & Western Railway Co. v. Ayers,

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

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