556 U. S. ____ (2009)

CSX TRANSP., INC. v. THURSTON
HENSLEY

on petition for writ of certiorari to the court ofappeals of tennessee, eastern division

Justice Ginsburg, dissenting.

The Court’s opinion in Norfolk & Western R. Co. v. Ayers, 538 U. S. 135 (2003) , would support this plain and simple instruction: “It is incumbent upon [the plaintiff] to prove that his alleged fear [of cancer] is genuine and serious,” id., at 157. The defense-oriented instructions requested, however, were far more elaborate, compare ante, at 2 (per curiam), withApp. to Pet. for Cert. 70a–71a, and the trial court rightly refused to give them. Nothing in Ayers required the court to deliver, on its own initiative, a fitting substitute. I would therefore deny the petition for certiorari and dissent from the Court’s summary reversal.