But Breyer wants to crunch numbers. "If each of us in this room has a one in five chance that he will die of cancer, and the plaintiffs in this case have a one in four chance … isn't that intangible, hard to measure?" (And also incredibly depressing?) Rehnquist wants to know what happens with a plaintiff who should have lived to age 75 but only lives to 72. "Is that recoverable?" Ginsburg interrupts Rehnquist to ask whether "fear without a physical manifestation" isn't "too easy to make up" (as in, "Hey, for a million dollars I could be scared too!").
Justice Sandra Day O'Connor insists that one's fear should be "reasonable and have a causal nexus" to the harm being litigated. And Breyer lays out the core policy problem: "If we compensate people for their fear of small changes in risks, the fund will run dry. When people who really get cancer come to court the cupboard will be bare. This is a serious problem and it's worrying me quite a bit." Finally, the court quizzes Lazarus on what evidence the railroad put before the jury of other possible contributors to the plaintiffs' asbestosis. He responds that the railroad never tried to get that evidence in at trial, never proffered a formula for apportioning liability between other contributors and the railroad, and that the "relatively modest" (???) jury awards cannot now be revisited by the court.
Carter Phillips gives one of his masterful Meadowlark Lemon 90-second rebuttals, but it looks as though his warning—that the 5,500 asbestos cases under FELA will all turn into "I'm afraid of cancer" claims—may not sway enough justices to prevail. Which suggests that my basic theory of torts—"someone is hurt, someone must pay"—will morph into a new torts theory: "Someone is scared, someone must pay."
I'm scared, too. I'm scared of snakes and lightning and of chemical and biological warfare and Ann Coulter. I'm scared I'll die never having hugged Justice Souter and of running out of conditioner. I think my employer is responsible for at least some of these fears. Certainly the warfare and Coulter ones. I think I'll sue Slate.
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