[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 01-14786 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 18, 2003
THOMAS K. KAHN
D. C. Docket No. 90-00228 CV-AAA-5 CLERK
BENJAMIN D. JONES,
Plaintiff-Appellant,
versus
CSX TRANSPORTATION,
Defendant-Appellee.
________________________
No. 01-14787
________________________
D. C. Docket No. 91-00226 CV-AAA-5
JAMES EMERY O'STEEN,
Plaintiff-Appellant,
versus
CSX TRANSPORTATION,
Defendant-Appellee.
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Appeals from the United States District Court
for the Southern District of Georgia
_________________________
(July 18, 2003)
ON PETITION FOR REHEARING
Before TJOFLAT and COX, Circuit Judges, and HANCOCK*, District Judge.
PER CURIAM:
James Emory O’Steen and Benjamin D. Jones petition this court for rehearing
following our opinion in Jones v. CSX Transportation, 287 F.3d 1341 (11th Cir.
2002). We grant the petition for rehearing in part; we adopt and reinstate Part IIIA
of our prior opinion, reported at 287 F.3d 1341 (11th Cir. 2002); the balance of the
opinion is vacated, and we substitute the following opinion in its stead:
Previously, we had determined that the district court properly awarded partial
summary judgment in CSX’s favor on the issue of whether O’Steen and Jones could
recover emotional distress damages stemming from their asbestosis based on their
fear of contracting cancer. The sole ground advanced by CSX in its motion for partial
summary judgment was that the plaintiffs’ failure to show an objective manifestation
*
Honorable James H. Hancock, United States District Judge for the Northern District of
Alabama, sitting by designation.
2
of their emotional distress warranted judgment in CSX’s favor. We agreed with CSX
and the district court and therefore affirmed the district court’s ruling.
The Supreme Court granted certiorari in Norfolk & Western Ry. Co. v. Ayers,
538 U.S. ___, 123 S. Ct. 1210 (2003), subsequent to the proceedings in the district
court and our ruling. Based on the factual similarity between their cases and Ayers,
O’Steen and Jones sought a stay of our mandate pending the outcome of Ayers and
we stayed the mandate. The Supreme Court has now decided Ayers. In Ayers, the
Supreme Court held that a plaintiff who has asbestosis can recover damages for fear
of cancer if the alleged fear is “genuine and serious.” 538 U.S. at ___, 123 S. Ct. at
1223. Our prior conclusion that a plaintiff must produce evidence of objective
manifestations of purported emotional distress is, we conclude, inconsistent with the
holding in Ayers. We therefore reverse the district court’s grant of partial summary
judgment and remand for further proceedings consistent with this opinion.1
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
1
We should not be understood to say that partial summary judgment could not be granted
on some ground other than that previously asserted by CSX.
3