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Supreme Court Heightens Standard in Fear of Cancer Claims

In CSX Transportation Inc. v. Hensley, the U.S. Supreme Court ruled in a 7-2 decision that a jury award of $5 million was erroneous because the trial court failed to grant the defendant's request for an instruction to the jury that a plaintiff's claim for fear of cancer must be "genuine and serious." The "genuine and serious" standard in fear of cancer claims comes from the the case Norfolk & Western R. Co. v. Ayers, which recognizes certain "verdict control" devices available to the trial court in assuring a just and fair result in FELA cases. " These include, on a defendant's request, a charge that each plaintiff must prove any alleged fear to be genuine and serious, review of the evidence on damages for sufficiency, and particularized verdict forms."

Thurston Hensley contracted asbetosis--which can later develop into cancer--due to his exposure of asbetos while under employment as a railroad worker. He sued his employer under the Federal Employer's Liability Act (FELA) in federal court to seek compensation for his real injury of contracting asbetosis and for his fear of developing cancer in the future. During the trial proceedings, the trial court denied the defendant's request for a jury instruction that the plaintiff must prove that his fear of developing cancer is "genuine and serious" in order to succeed in his claim. The jury returned a verdict in favor of the plaintiff for $5 million, and the defendant appealed.

The Tennessee Court of Appeals affirmed the trial court's ruling. It reasoned that the "genuine and serious" standard established in Ayers had no relevance to what jury instructions were required, but rather set the standard for the court in determining whether a fear of cancer claim was "genuine and serious" enough to go to a jury to begin with; once the court determines that the claim is genuine and serious enough to go forward, it is at the court's discretion to allow or disallow a jury instruction. The court also stated that "the mere suggestion of the possibility of cancer has the potential to evoke raw emotions," and "[a]ny juror who might be predisposed to grant a large award based on shaky evidence of a fear of cancer is unlikely to be swayed by the language of Ayers."

The Supreme Court reversed the Tennessee Court of Appeals decision. Simply put, the Supreme Court ruled that the "genuine and serious" standard in Ayers requires that the standard not only be followed by the court in determining what evidence is relevant, but must also be instructed to the jury on the defendant's request. In disagreeing with the appellate court's reasoning, the Supreme Court noted that jury must be told what the applicable standard is in a fear of cancer claim precisely because of the raw emotion that can be invoked by such a claim.

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Supreme Court Heightens Standard in Fear of Cancer Claims