The second age of asbestos.

It may be the longest-running mass tort in U.S. history, but asbestos litigation is still hot. With new cases regularly making their way into court and dozens of asbestos defendants having declared bankruptcy so far, plaintiff lawyers with legitimate claims have had to develop new strategies to recover compensation for their clients.

One attorney in California recently won a substantial verdict by basing his client's claim on premises, rather than products, liability; a Mississippi lawyer has uncovered new defendants among manufacturers of asbestos-laden plastics; and the U.S. Supreme Court recently found for a small group of plaintiffs who fear that their asbestosis--scarring or thickening of the lungs caused by exposure to asbestos--may lead to cancer.

In Norfolk & Western Railway Co. v. Ayers, the Court--while stating that the large number of asbestos cases "defies customary judicial administration and calls for national legislation"--sided with six former railroad workers seeking damages for fear of cancer. (123 S. Ct. 1210 (2003).)

"It was a significant win for the plaintiffs," said Richard Lazarus, a professor at George town University Law Center who argued the workers' case before the Supreme Court. "It steals some thunder from the defendants."

"Mental anguish damages resulting from the fear of developing cancer," Justice Ruth Bader Ginsburg wrote for the majority, "may be recovered under the FELA [Federal Employers' Liability Act] by a railroad worker suffering from the actionable injury asbestosis caused by work-related exposure to asbestos."

"It was an intriguing 5-4 decision," said Lazarus. "It includes what many believe to be three of the most liberal and two of the most conservative justices on the Court." The votes of Justices Antonin Scalia and Clarence Thomas were especially telling, he said, suggesting that if they had been legislators they might have voted otherwise.

The other justices in the majority were John Paul Stevens and David Sourer.

"As soon as I got involved in the case last summer," said Lazarus, "I thought we had the stronger legal argument. The question was whether we could persuade the Court that the law in this area was sufficiently settled." He argued that because the courts have firmly established a plaintiffs right to recover for physical injuries--including the fear of future physical consequences--"there's no reason why there should be a different rule if your current impairment was caused by asbestos."

The case involved six former employees of Norfolk & Western Railway Co. who brought suit in a West Virginia state court under the FELA. They claimed that the railroad had negligently exposed them to asbestos and that they had contracted asbestosis as a result. The workers included fear of developing cancer as an element of their mental-anguish claim.

The jury awarded the plaintiffs a range of amounts but reduced the damages for those who smoked to account for their comparative negligence.

The state trial court rejected Norfolk's proposed jury instructions, which would have ruled out damages for fear of cancer unless each claimant proved both the likelihood of contracting the disease and physical symptoms caused by the alleged fear, such as sleeplessness or headaches. Instead, the court instructed the jury that a plaintiff "who demonstrated a reasonable fear of cancer related to proven physical injury from asbestos was entitled to compensation for that fear as a part of the damages awardable for pain and suffering."

The trial court also refused to require the jury to apportion damages between Norfolk and other alleged contributors to the workers' disease, instructing them not to reduce recoveries because of any nonrailroad exposures to asbestos, as long as the exposures at Norfolk contributed in any way to the plaintiffs' injuries. The West Virginia Supreme Court of Appeals denied review, but the U.S. Supreme Court chose to hear the case.

In affirming the lower court's handling of the case, the Supreme Court emphasized that it was ruling "specifically and only on the question whether this case should be aligned with those in which fear of future injury stems from a current injury, or with those presenting a stand-alone claim for negligent infliction of emotional distress."

The four dissenting justices warned that the Ayers ruling endangers the rights of future asbestos plaintiffs. They cautioned that employees who several years from now develop asbestos-related cancers, such as mesothelioma, may be unable to recover any damages at all "for the simple reason that, by the time the worker is entitled to sue for cancer, the funds available for compensation in all likelihood will have disappeared, depleted by verdicts awarding damages for unrealized fear."

The majority, while calling on Congress to act, warned that "courts ... must resist pleas of the kind Norfolk has made, essentially to reconfigure established liability rules because they do not serve to abate today's litigation crisis."