CSX v. Thursten Hensley- Signiificant U.S. Sup. Ct. Court FELA Decision

[FELA FELLA]

Dear All-

Attached is a significant FELA decision, CSX v. Thursten Hensley, ----S.Ct.----, 2009 WL 1506680 (U.S. June 1, 2009) announced this morning by the United States Supreme Court which takes away some rights to FELA claimants involved with exposure to cancer causing agents and the types of jury instructions that must accompany such requests for damages from a jury. I will submit it in brief form later today but wanted you to have this before the ink dried.

UPDATE- Below is a synopsis of the case with my comments:

Significant Decision Affecting
Rights of Injured FELA Workers

On Monday, June 1st, the United States Supreme Court decided a case styled CSX Transportation, Inc. v Thurston Hensley 2009 WL 1506680 (U.S. June 1, 2009)). This case demonstrated the conservativeness of the Supreme Court, and their determination to exclude injured workers from recovering.

The Supreme Court relied heavily upon a previously decided case, i.e., Norfolk & Western R. Co. v Ayers (538 U.S. 135). Ayers held that a plaintiff may recover for fear of cancer if he proves his fear is ‘genuine and serious’. Once the plaintiff has provided proof of their apprehension of developing lung cancer in the future, the law will provide compensation for those damages.

At issue in the Hensley case was whether it was proper for the trial court to deny CSX its requested juror instructions. CSX requested the following instruction to be part of the charge:

Charge One stated the basic requirements to obtain damages under Ayers. Plaintiff is also alleging that he suffers from a compensable fear of cancer. In order to recover, Plaintiff must demonstrate that the fear is genuine and serious.”

Hensley first sued CSX in Tennessee state court. At the close of the trial, CSX requested an instruction that Hensley needed to have shown his fear of getting cancer was genuine and serious. The trial court refused to allow the instruction. The Tennessee Court of Appeals affirmed, stating that they saw no purpose in instructing the jurors. If the jurors did not believe the plaintiff was genuine and serious in his fears, then little to no damages would be awarded to him.

The Hensley court held the ruling of the Tennessee Court of Appeals and the refusal of the trial court to give the juror instructions were clear error. In Ayers, the Court expressly recognized that several “verdict control devices” were available to the trial court when a FELA plaintiff sought fear-of-cancer damages. One of the verdict control devices included that on a defendant's request, each plaintiff must prove any alleged fear to be genuine and serious. In Hensley, the trial court erred when it refused CSX’s request for a juror instruction on the genuine-and-serious standard of Hensley’s fear of cancer claim.

The Hensley Court held that instructing the jury on fear of cancer damages would have been worthwhile. Given the fact that the cancer claim could have the potential to “evoke raw emotions” among the jurors made the need for a juror instruction on the legal standard even more vital. The Hensley Court somehow felt the need to bring up the numerous asbestos cases pending as a way of justifying the estimation of damages for plaintiffs. Their choice to bring up the cases was irrelevant and unnecessary.

An interesting aspect to this case is found in the dissent. Justice Stevens, who had voted to affirm the Supreme Court decision in Ayers, displayed his contempt for the decision in this case. He stated that the new ruling authorized a fresh review of the jury’s damages award. Yet, as a matter of practicality, he noted that the jury would only award the amount of damages they felt was necessary. Justice Stevens further pointed out that CSX did not attack the $5 million dollar award as excessive. In that light, he further demonstrated that CSX did not request the trial court to ask the jury to award damages for each element of recovery. Had CSX done this, and the trial court had complied, then CSX’s challenge would only have gone to the amount awarded to the ‘fear of cancer’ amount and the entire verdict would not have had to have been thrown out.

The Hensley Court’s decision to reverse and remand the case rests on the language in footnote 19 of the Ayers opinion. The footnote states:

“In their prediction that adhering to the line drawn in Gottshall and Metro-North will, in this setting, bankrupt defendants, the dissents largely disregard, inter alia, the verdict control devices available to the trial court. 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.” Id., at 159, n. 19

The Hensley Court broadly interpreted the footnote, finding that anytime a defendant demanded an instruction, it must be given when involving fear of cancer.


In contrast, Justice Stevens held that on the footnote’s face it merely points out that a defendant has the right to request a genuine-and-serious instruction, and if requested, the instruction is available to the trial court. It does not suggest that all instructions should be granted.

The Hensley majority opinion deviated from Ayers stare decisis. The Court’s opinion, more than anything, will generate confusion regarding the Ayers case. The Ayers case had already suffered multiple interpretations by the courts. Given the opportunity to provide clarity to the holding of Ayers, the Hensley Court failed to meet this objective. In their rush to reverse the Tennessee Court of Appeals, they failed to correctly interpret Ayers and eliminate the confusion that plagued many courts.

The Hensley opinion leaves the reader wondering why the Supreme Court failed to recognize the rights of workers who labor across America. This conservative approach greatly diminishes a worker’s ability to recover damages.


Gordon & Elias, L.L.P., represents clients in all aspects of personal injury and wrongful death. They are a boutique law firm with a nationwide practice focusing on FELA (http://www.gordon-elias.com), Jones Act-Admiralty-Maritime Law (http://www.offshoreinjuries.com) and the associated Jones Act Blog (http://www.JonesActQuestions.com) and Trucking Accident Litigation (http://www.truckaccidentlaw.org). Gordon & Elias, L.L.P., was formed in 2000. Attorneys Steve Gordon and R. Todd Elias bring over 39 years of combined experience to the representation of their clients. The firm has the experience and resources to pursue recovery from large corporate defendants and/or their insurers.

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