Petition for Writ of Certiorari — Metro-North Commuter R. Co. v. Buckley

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Supreme Court, U.S.

\\ FILED

98 320 AUC 29 19%

No.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1996

METRO-NORTH COMMUTER RAILROAD COMPANY,

Petitioner.

MICHAEL BUCKLEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SHEILA L. BIRNBAUM*

BARBARA WRUBEL

DOUGLAS W. DUNHAM

ELLEN P. QUACKENBOS

*Counsel of Record

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM

919 Third Avenue

New York, New York 10022

(212) 735-3000

RICHARD K. BERNARD

METRO-NORTH COMMUTER

RAILROAD COMPANY

347 Madison Avenue

New York, New York 10017

Of Counsel

QUESTIONS PRESENTED

Whether the Second Circuit erred in ruling that

mere exposure to a potentially harmful substance, in

the absence of any physical injury, is a sufficient

basis for recovery under the Federal Employers’

Liability Act ("FELA"), a ruling that, as the Second

Circuit acknowledged, is in direct conflict with the

Third Circuit’s decision in Schweitzer v. Consoli-

dated Rail Corp., 758 F.2d 936 (3d Cir.), cert. de-

nied, 474 U.S. 864 (1985)?

Whether the Second Circuit erred in holding that

under Consolidated Rail Corp. v. Gottshall, 114 S.

Ct. 2396 (1994), the zone of danger test is satisfied

in FELA cases where an employee alleges mere ex-

posure over a period of time to a potentially hazard-

ous substance, but where there is no claim of actual

physical injury or risk or fear of immediate physical

injury?

Whether the Second Circuit, in contravention of this

Court’s opinion in Gottshall, has improperly dis-

carded the essential common law requirements im-

posed to place rational limits on liability for negli-

gent infliction of emotional distress: namely, (i)

proof of physical injury, (ii) evidence of physical

manifestation of emotional harm, and (iii) proof of

emotional distress that is severe and substantiated

by objective medical, psychiatric or clinical evi-

dence?

Whether the Second Circuit erred in ruling that

FELA permits a totally asymptomatic plaintiff to

recover damages for future medical monitoring

costs, a ruling that is in direct conflict with FELA’s

express statutory requirement of "injury" as a pre-

requisite to recovery?

PARTIES TO THE PROCEEDING AND

DESIGNATION OF CORPORATE RELATIONSHIP

Petitioner, Metro-North Commuter Railroad Company, is

a railroad corporation that is a subsidiary of the Metropoli-

tan Transportation Authority, a public authority of the State

of New York. See Metropolitan Transportation Act, N.Y.

Pub. Auth. Law §§ 1260 to 1279-b (McKinney 1982 &

Supp. 1996). Metro-North Commuter Railroad Company

does not have any subsidiary companies.

Respondent Michael Buckley is an individual.

— —?

2 ee ae

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TABLE OF CONTENTS

QUESTIONS PRESENTED ......... 6.65600 us i

PARTIES TO THE PROCEEDING AND

DESIGNATION OF CORPORATE

Frere re reer ee ee ii

TABLE OF AUTHORITIES ...........6.55555 v

OPINIONS BELOW ... 1.2... ccc eee eee eees |

STATEMENT OF JURISDICTION ............. l

STATUTORY PROVISION INVOLVED ......... |

STATEMENT OF THE CASE ..............5.5. I

REASONS FOR GRANTING THE WRIT ......... 3

I. IN HOLDING THAT AN ASYMPTOMAT-

IC PLAINTIFF WHO WAS EXPOSED TO

ASBESTOS MAY RECOVER UNDER

FELA, THE SECOND CIRCUIT IS IN DI-

RECT CONFLICT WITH THE THIRD

CIRCUIT AND WITH THE OVER-

WHELMING WEIGHT OF COMMON

LAW AMTTIOURIEY 2c ccc ccc cc ccccccees 6

I. THE SECOND CIRCUIT MISINTER-

PRETED AND MISAPPLIED THE ZONE

OF DANGER TEST ARTICULATED BY

THIS COURT IN GOTTSHALL .......... 12

iv v

Ill. THE SECOND CIRCUIT, IN DIRECT TABLE OF AUTHORITIES

CONTRAVENTION OF GOTTSHALL’S

MANDATE, DISCARDED WELL-ESTAB- CASES PAGE(S)

LISHED COMMON LAW LIMITATIONS

ON RECOVERY FOR EMOTIONAL DIS- Adams v. Johns-Manville Sales Corp., 783 F.2d

WEED co déecdsdeeseneketh cusies eé« 20 EE, Se id ew ce en 8, 18

A. The Second Circuit Erred in Holding Amendola v. Kansas City Southern Railway, 699 F.

That No Physical Manifestation of Supp. 1401 (W.D. Mo. 1988) ...... 7, 22, 23

Emotional Distress Is Required ...... 21 |

Anselmi v. Penrod Drilling ., 813 F.

B. The Second Circuit Incorrectly Held | 436 (E.D. La. 1993) ee iVebewws wes ja

That Emotional Distress Is Compen- |

sable Even If It ls Not Severe ...... 23 Asaro v. Cardinal Glennon Memorial Hospital, 799

ee ED Ge dee cceeeses 15

Cc The Second Circuit Erred by Not

Requiring Medical or Psychiatric In re Asbestos Products Liability Litigation (No.

Evidence of Emotional Distress ..... 25 VI), CA No. 2 MDL 875, 1996 WL 239863

(E.D. Pa. May 2, 1996) ........ 8, 9, 10, 27

IV. THE SECOND CIRCUIT ERRED IN AL-

LOWING AN ASYMPTOMATIC PLAIN- Atchison, Topeka & Santa Fe Railway v. Buell, 480

TIFF TO RECOVER MEDICAL MONI- SR, BPE 6 o5-Fe uC ibece ves 21, 22, 24

TORING DAMAGES, IN DIRECT CON-

FLICT WITH FELA’S STATUTORY "IN-

Aurora v. Burlington Northern Railroad, 31 F.3d

ee ee ee.

JURY" REQUIREMENT ............--. 27 CRY ID an Ss 66 60s Cb chil oats 25

GEE ‘b-oes Ceaebcecddwe ctceddde ds 30 Ball v. Joy Manufacturing Co., 755 F. Supp. 1344

(S.D. W.Va 1990), aff'd, 958 F.2d 36 (4th

Cir.), cert. denied, 502 U.S. 1033 (1992) ... 29

Ball v. Joy Technologies, Inc., 958 F.2d 36 (4th

Cir.), cert. denied, 502 U.S. 1033 (1992.... 8

Bass v. Nooney Co., 646 S.W.2d 765 (Mo. 1983) 25, 26

Batko v. Ogilvie, No. 85 C 7873, 1986 WL 5761

(N.D. Ill. May 9, 1986) ........... 7, 28

Bianco v. Philadelphia, Bethlehem & New England

Railroad, No. 93-4828, 1995 WL 89036

FF § FF § eer ee 17

Bloom v. Consolidated Rail Corp., 41 F.3d 911 (3d

- PServer er ee 19, 20

Bolden v. Southeastern Pennsylvania Transportation

Authority, 21 F.3d 29 (3d Cir. 1994) ...... 27

Bondy v. Texas Eastern Transmission Corp., 701 F.

Supp. 112 (M.D. La. 1988) ........... 8

Boucher v. Dixie Medical Center, 850 P.2d 1179

SP Cc ecbed ee ceeu vhs eaees 15

Bovsun v. Sanperi, 461 N.E.2d 843 (N.Y. 1984) ... 15

Bowen v. Lumbermens Mutual Casualty Co., 517

Sa EE ED gc Oh eee ce ances 24

Burns v. Jaquays Mining Corp. , 752 P.2d 28 (Ariz.

Gh A Swab deebieesbeseues 8

Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996) ... 26

Capital Holding Corp. v. Bailey, 873 S.W.2d 187

a ae ool s odes ebb ee bOb ewe ob 4 8

Carey v. Piphus, 435 U.S. 247 (1978).......... 27

vii

Carroll v. Litton Systems, Inc., No. B-C-88-253,

1990 WL 312969 (W.D.N.C. Oct. 29,

ah sew es alah Sed Whee bt Oe 29

Carroll v. State Farm Ins. Co., 427 So. 2d 24, 25

ee Se EE SSeS eS eee oeccec. 18

Consolidated Rail Corp. v. Gottshall, 114 S. Ct.

se passim

Corso v. Merrill, 406 A.2d 300 (N.H. 1979)...... 21

Crooks v. Metro-North Commuter Railroad, No. 93

Civ. 6030 (JSM), 1994 WL 719683

Sees Ee as EE tbc ce Ob eee cee 16

Culbert v. Sampson's Supermarkets, Inc., 444 A.2d

Se SE a bo o's e 0663 66 60 600 24

Deleski v. Raymark Industries, Inc., 819 F.2d 377

PP SU CO eee eet en cebecens 8

Doner v. Ed Adams Contracting, 617 N.Y.S.2d

565 (App. Div. 3d Dep’t 1994) ....... 8, 10

Dziegelewski v. Consolidated Rail Corp., No. 93

Civ. 2666, 1995 WL 63155 (S.D.N.Y. Feb.

DG bob wsd oe cee e re whee ese 17

Eagle-Picher Industries v. Cox, 481 So. 2d 517

(Fla. Dist. Ct. App. 1985) ........ 8, 10, 11

Ellenwood v. Exxon Shipping Co., 795 F. Supp. 31

(D. Me. 1992), aff'd in relevant part, 984

F.2d 1270 (ist Cir.), cert. denied, 508 U.S.

PT dctedestbsatoneoesawers 22

viii

Falzone v. Busch, 214 A.2d 12 (N.J. 1965) ...... 21

Flynn v. New York, N.H. & H. R. Co., 283 U.S.

ff PS eT eee ee ee eee 11

Garcia v. Burlington Northern Railroad, 904 P.2d

ft: ae OS Pee 16

Garrett v. New Berlin, 362 N.W.2d 137 (Wis.

Doe bie cones Webnes barese é4 15

Gillman v. Burlington Northern Railroad, 878 F.2d

I eee ee 16

Grube v. Union Pacific R.R., 886 P.2d 845 (Kan.

ere a eS ee ee Pe ee ae 16

Gulf, Colorado & Santa Fe Railway v. Hayter, 54

S.W. 904 (Tex. 90D)... ww ce ee ee ees 14

Hagerty v. L & L Marine Services, Inc., 788 F.2d

Ge ae ee ee 12

Hansen v. Mountain Fuel Supply Co., 858 P.2d

ee ee eee 26

Hatfield v. Max Rouse & Sons Northwest, 606 P.2d

eae eee 21

In re Hawaii Federal Asbestos Cases, 734 F. Supp.

ft fF ee rere 8, 10

Hughes v. Moore, 197 S.E.2d 214 (Va. 1973) ..... 21

Ironbound Health Rights Advisory Commission v.

Diamond Shamrock Chemicals Co., 578

A.2d 1248 (N.J. Super. Ct. App. Div.

ad's) thls 6 Slee 6.666.666 O40 8 24

Jackson v. Johns-Manville Sales Corp., 750 F.2d

Se Gs EOD swe ccece secs eoce 10

Jackson v. Johns-Manville Sales Corp., 781 F.2d

394 (Sth Cir.), cert. denied, 478 U.S. 1022

0 PE. PPS ee eee 11

Jobin v. McQuillen, 609 A.2d 990 (Vt. 1992) ..... 16

Johnson v. Ruark Obstetrics & Gynecology Associ-

ates, 395 §.E.2d 85 (N.C. 1990) ........ 24

K.A.C. v. Benson, 527 N.W.2d 553 (Minn. 1995) .. 24

Kadans v. Citicorp Mortgage, Inc., No. 93-15583,

1994 WL 242112 (9th Cir. June 3, 1994) ... 25

Keck v. Jackson, 593 P.2d 668 (Ariz. 1979) ...... 15

Kimberley v. Howland, 55 S.E. 778 (N.C. 1906) ... 14

Kohn v. Schiappa, 656 A.2d 1322 (N.J. Super.

oo i PS ee a ae 26

Lacy v. Cooper Hospital/University Medical Cen-

ter, 745 F. Supp. 1029 (D.N.J. 1990) ..... 24

Lavelle v. Owens-Corning Fiberglas Corp., 507

N.E.2d 476 (Ohio Ct. C.P. 1987) ...... 12, 24

Leone v. Leewood Service Station, 624 N.Y.S.2d

610 (App. Div. 2d Dep't), appeal denied,

G6 I. FT ..Be GED CIDR we ccc ccc eee: 26

Locke v. Johns-Manville Corp., 275 S.E.2d 900

rr er re eae 8

Mack v. South-Bound R. Co., 29 S.E. 905 (S.C.

ee s+ kba ae oF oy be Oe ba Oa can eee os 14

McMillan v. National Railroad Passenger Corp.,

648 A.2d 428 (D.C. 1994) ............ 16

Mellon v. Goodyear, 277 U.S. 335 (1928) ....... 11

Melton v. Allen, 580 P.2d 1019 (Or. 1978) ....... 21

Mergenthaler v. Asbestos Corp. of America, 480

a EO ee ee 8

Miner v. City of Glen Falls, 999 F.2d 655 (2d Cir.

a ease ean eo ee ee 27

Muchow v. Lindblad, 435 N.W.2d 918 (N.D.

ee ect basic eababwetet anes 24, 26

Nelson v. Web Water Development Association,

Inc., 507 N.W.2d 691 (S.D. 1993) ....... 21

Nutt v. A.C. & S., Inc., 466 A.2d 18 (Del. Super.

Ct. 1983), aff'd, 480 A.2d 647 (Del. 1984) .. 17

Outten v. National Railroad Passenger Corp., 928

Pe BO err ree eT eee 16

Pankopf v. Hinkley, 123 N.W. 625 (Wis. 1909) .... 15

Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex.

ae ee re ee ee 24, 25

Parrish v. Omaha Public Power District, 496

N.W.2d 914 (Neb. 1993) ........... 24, 26

Payton v. Abbott Labs, 437 N.E.2d 171 (Mass.

Rs Sind d he dd ole eee a ae ee 04 21

Plummer v. Abbott Laboratories, 568 F. Supp. 920

he 2k OAs wea 4 wy 66 84.6 UU to « 21

Poulsen v. Russell, 300 N.W.2d 289 (lowa 1981) ... 24

Purcell v. St. Paul City Railway, 50 N.W. 1034

A . 6-s'a'o 36 ale b's alee t-06 6» 14

Rediand Soccer Club, Inc. v. Department of Army,

SP Gas ae Ge Gs ED co ec we cadets 8

Reilly v. United States, 547 A.2d 894 (R.I. 1988)... 21

Resavage v. Davies, 86 A.2d 579 (Md. 1952) ..... 15

Rickey v. Chicago Transit Authority, 457 N.E.2d 1

Ae a ee 15

Robb v. Pennsylvania Railroad, 210 A.2d 709

i es ada sme ad ab he be 48 Oe 15, 21

Roberts v. Saylor, 637 P.2d 1175 (Kan. 1981) ..... 24

Robertson v. Geophysical Service, Inc., 469 So. 2d

eee ee ee oe 24

xii

Rodrigues vy. State, 472 P.2d 509 (Haw. 1970) .... 24

Schweitzer v. Consolidated Rail Corp., 758 F.2d

936 (3d Cir.), cert. denied, 474 U.S. 864

rs «es bs 6 06 eee aeek sees ees passim

Sears Roebuck & Co. v. Young, 384 So. 2d 69

Cn «g's a6 be 6 a tke ee «ee On 21

Shelton v. Russell Pipe & Foundry Co., 570

kA fF fl Gl eee 15

Silver v. Mendel, 894 F.2d 598 (3d Cir. 1990) .... 25

Simmons v. Pacor, Inc., 674 A.2d 232 (Pa. 1996) .. 8

Simone v. Rhode Island Co., 66 A. 202 (R.I. 1907) . 14

Stadler v. Cross, 295 N.W.2d 552 (Minn. 1980) ... 15

State ex rel. Woyke v. Tonka Corp., 420 N.W.2d

624 (Minn. Ct. App. 1988) ............ 21

Stewart v. Arkansas Southern Railway, 36 So. 676

iS Serererer. sPrrer Terre 15

Thomas v. FAG Bearings Corp., 846 F. Supp.

SG Ge, SBD cs Bee 6 wes 6 os 25, 29

Towns v. Anderson, 579 P.2d 1163 (Colo. 1978) ... 15

Urie v. Thompson, 337 U.S. 163 (1949) ..... 6, 7, 28

Vaillancourt v. Medical Center Hospital, 425 A.2d

eh Sn 6 e's ok wat wie oa ob ele « 21

xiii

Vance v. Consolidated Rail Corp., 652 N.E.2d 776

(Ohio 1995), cert. denied, 116 S. Ct. 776

ae ieee OS ae a Oe Oe se ees 16

Watson v. Dilts, 89 N.W. 1068 (lowa 1902) ...... 15

Whetham v. Bismarck Hospital, 197 N.W.2d 678

eee Es 6 ie Ww bus eo ee FSS 2% wien 15

Williams v. Baker, 572 A.2d 1062 (D.C. 1990) . . 15, 24

Williams v. Carnival Cruise Lines, 907 F. Supp.

See I EE 6 <0 0 6 be 6-0. ene 0s 8 22

Wilson v. Consolidated Rail Corp., 810 F. Supp.

Gee Gis MED eS ee eee eeesess 16

Wisniewski v. Johns-Manville Corp., 759 F.2d 271

Cs hws ek SOU GN 6 een 6 8, 17

STATUTES PAGE(S)

nn ak 6 5 oko + bike © 0% 8 ea |

ee EE oak nosso 6 6 ou ck 0.0 8-888 27

8 ee a ee 1, 5, 7, 28

Pe Oe COU “os ccaueuenetwevtess 7

xiv

OTHER AUTHORITIES PAGE(S)

W. Page Keeton et al., Prosser and Keeton on the

Law of Torts (Sth ed. 1984) ...... 19, 20, 22

Richard N. Pearson, Liability to Bystanders for

Negligently Inflicted Emotional Harm -- A

Comment on the Nature of Arbitrary Rules,

34 U. Fla. L. Rev. 477 (1982) ........... 13

Restatement (Second) of Torts § 436A

Ss i bly Ss a a ates ee bree ae 22, 23, 24

Peter H. Schuck, The Worst Should Go First:

Deferral Registries in Asbestos Litigation,

15 Harv. J.L. & Pub. Pol’y 541 (1992) .... 29

Irving J. Selikoff, Disability Compensation for

Asbestos-Associated Disease in the United

GE on 6 bd bo aew eee ren aes 10

Petitioner Metro-North Commuter Railroad Company

("Metro-North") respectfully petitions for a writ of certio-

rari to review the judgment of the United States Court of

Appeals for the Second Circuit in this case.

OPINIONS BELOW

The opinion of the United States District Court for the

Southern District of New York (A-1 to A-8) has not been

officially reported. The opinion of the United States Court

of Appeals for the Second Circuit (A-9 to A-28) is report-

ed at 79 F.3d 1337.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was entered on

April 1, 1996, and Metro-North’s timely petition for re-

hearing was denied on July 10, 1996. The jurisdiction of

this Court is invoked pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Section 1 of the Federal Employer’s Liability Act

("FELA"), 45 U.S.C. § 51, is reproduced as Appendix D.

STATEMENT OF THE CASE

This case arises from plaintiff Michael Buckley’s expo-

sure to asbestos-containing insulation while working for

Metro-North as a pipefitter in Grand Central Terminal in

New York. (A-2) Plaintiff seeks damages for negligent

infliction of emotional distress and for future medical mon-

itoring under FELA. (A-4) Plaintiff is the “test plaintiff"

for a group of approximately 140 plaintifs with essentially

identical claims against Metro-North. (A-13)

It is undisputed that plaintiff has no asbestos-related dis-

ease or physical injury and in fact shows no physical effect

of any kind from asbestos exposure.’ (A-3; A-20) More-

over, it is undisputed that plaintiff is not likely to develop

an asbestos-related disease. (A-19) At trial, plaintiff's

expert in occupational environmental health hazards, Dr.

William Nicholson,’ quantified Buckley’s increased risk of

dying of cancer, as a result of his exposure to asbestos, as

only between one and five percent. (TR at 334) Dr.

Nicholson further testified that "a death from asbestosis is

not something Mr. Buckley has to worry about, although

he might develop shortness of breath." (TR at 325)

Plaintiff also does not suffer from any physical manifes-

tation of his alleged emotional distress. Moreover, his al-

leged distress is not documented by any objective medical,

psychiatric or clinical evidence of any kind. (A-7 to A-8)

Plaintiff has never sought psychiatric treatment, or seen a

social worker or a counselor for his alleged emotional trau-

ma. (TR at 797) According to plaintiff's expert, Dr. Ste-

ven Markowitz,’ plaintiff did not display a level of concern

warranting counseling. (TR at 549; A-8)

At the close of plaintiff's case-in-chief, the district court

(Hon. Whitman Knapp, U.S.D.J.) granted Metro-North’s

motion for a directed verdict. The court held that

plaintiff's exposure to asbestos did not satisfy the common

' Plaintiff's amended complaint expressly states that he is “not bring-

ing a cause of action or claiming damages for the actual clinically

diagnosed condition of asbestosis, lung cancer, or other asbestos-related

disease or illness" or for any such condition “which may occur in the

future.” See Plaintiff's Amended Complaint § 19.

Dr. Nicholson is a professor at the Mount Sinai School of Medicine,

one of the world’s leading research centers on asbestos and health.

(Trial Transcript at 291, Buckley v. Metro-North Commuter Railroad,

No. 89 Civ. 7170-A(WK) ("TR"))

> Dr. Markowitz is a professor at the Mount Sinai School of Medi-

cine. (TR at 209)

law "zone of danger" test, which this Court has adopted as

a limitation on recovery for negligent infliction of emo-

tional distress under FELA. (A-4; A-6 to A-7 (citing Con-

solidated Rail Corp. v. Gottshall, 114 S. Ct. 2396 (1994)).

The court also found that plaintiff “offered no objective

evidence by which a jury could determine that he had suf-

fered a real emotional injury” (A-8) and that “there [was]

no way for a jury to determine whether plaintiff's alleged

fear of developing the disease was reasonable." (A-6)

The Second Circuit reversed, holding that plaintiff could

recover for negligent infliction of emotional distress be-

cause his exposure to asbestos was a "physical impact” and,

by itself, satisfied the Goftshall zone of danger test. (A-18

to A-19) The Second Circuit stated that plaintiff could

recover even though he did not suffer severe emotional dis-

tress or psychiatric harm, showed no physical manifestation

of emotional distress, and presented no competent psychiat-

ric, medical or clinical evidence of emotional distress. (A-

24 to A-25) Further, the Second Circuit held that, despite

the absence of physical injury or a likelihood of future

injury, plaintiff could recover medical monitoring damages

under FELA. (A-26) On July 10, 1996, the Second Cir-

cuit denied Metro-North’s petition for rehearing with sug-

gestion for rehearing en banc. (A-30 to A-31)

REASONS FOR GRANTING THE WRIT

The Second Circuit’s decision in this case is, as the

Second Circuit acknowledged, in direct conflict with a

decision by the Third Circuit, Schweitzer v. Consolidated

Rail Corp., 758 F.2d 936 (3d Cir.), cert. denied, 474 U.S.

864 (1985). (A-20 to A-21) In Schweitzer, the Third Cir-

cuit held that exposure to asbestos, without asbestos-related

physical injury, does not constitute a basis for recovery

under FELA. 758 F.2d at 942. The overwhelming majori-

ty of federal and state decisions under both FELA and the

common law are in accord with Schweitzer in denying re-

covery in asbestos exposure cases where there is no physi-

cal injury, including cases where claims for emotional

distress have been asserted. In contrast, the Second Circuit

has drast’ca'ly expanded liability under FELA by allowing

an asymptenatic plaintiff to pursue claims for emotional

distress and future medical monitoring costs, based on his

mere exposure to asbestos.

The Second Circuit’s decision also is fundamentally in-

consistent with this Court’s recent decision in Consolidated

Rail Corp. v. Gottshall, 114 S. Ct. 2396 (1994). In

Gottshall, this Court held that purely emotional distress is

compensable under FELA only if it meets the common law

"zone of danger” test. See id at 2410-11. In determining

that plaintiff's exposure over time to asbestos satisfied the

zone of danger test, the Second Circuit wrenched the test

out of its common law boundaries. Well-settled law has

restricted the test to claims arising out of sudden accidents

or other traumatic events, which threaten a plaintiff with

imminent physical harm, thereby causing the plaintiff to

suffer fright and to fear for his own safety. Contrary to

the Second Circuit, recent FELA decisions by federal and

state appellate courts make clear that these traditional ele-

ments are required under the Goftshall zone of danger test.

Moreover, the Second Circuit's decision conflicts with

decisions by the Fifth Circuit and other courts, which have

held that under the common law asbestos exposure cases

do not meet the zone of danger test because these tradi-

tional elements are absent. In fact, Metro-North has found

no other decision applying the zone of danger test in this

context.

In addition to misapplying the zone of danger test, the

Second Circuit rejected all the other requirements that the

common law imposes to place rational limits on liability

for negligent infliction of emotional distress: namely, that a

plaintiff's distress be severe, result in a physical manifesta-

tion, and be established by competent medical, psychiatric

or clinical evidence. The Second Circuit's rejection of

these requirements is irreconcilable with this Court's pro-

nouncement in Gottshall that under FELA courts are not

free to discard such common law restrictions on "the spec-

4 unlimited and unpredictable liability." See id. at

The combined effect of the Second Circuit's holdings is

an unprecedented and unjustifiable expansion of liability

for negligent infliction of emotional distress. Under the

Second Circuit's decision, every railroad worker alleging

mere exposure to asbestos or other potentially harmful

substances may have a claim under FELA for emotional

distress, including distress that is trivial, insubstantial, or

evanescent. Such a result is contrary to the great weight of

authority under both FELA and the common law.

Finally, the Second Circuit's holding that a claim for

medical monitoring damages is cognizable under FELA

despite the absence of any physical injury is directly con-

trary to the statute’s express requirement of an “injury” as

a precondition to recovery.‘ See 45 U.S.C. § 51. More-

over, it is contrary to the basic common law principle that

there can be no cause of action in tort without an actual

injury. As Schweitzer and other cases make clear, under

FELA, “injury” from asbestos exposure exists, and a cause

of action may be deemed to have accrued, only when an

asbestos-related disease is present. Alleged “subclinical

i a

he may later develop an asbestos-related physical injury. Therefore,

his alleged emotional injury cannot serve as the basis for recovery of

medical monitoring damages.

758 F.2d at 942; cf Urie v. Thompson, 337 U.S. 163, 170

(1949) (worker exposed to silica dust is injured, and his

cause of action accrues under FELA, only when adverse

effects manifest themselves).

The Second Circuit’s decision, if allowed to stand, will

have extraordinary economic consequences upon railroads

under FELA and as well as upon other entities, government

and non-government, under other federal statutes and the

common law. Although the Second Circuit attempted to

limit its decision to "massive[ly]" exposed railroad workers

(A-23), the decision will clearly be relied upon by untold

numbers of other litigants in FELA, Jones Act, and com-

mon law cases for its expansive holdings. For these rea-

sons and the reasons set forth below, Metro-North respect-

fully urges that this Court grant certiorari.

L. IN HOLDING THAT AN ASYMPTOMATIC

PLAINTIFF WHO WAS EXPOSED TO ASBES-

TOS MAY RECOVER UNDER FELA, THE

SECOND CIRCUIT IS IN DIRECT CONFLICT

WITH THE THIRD CIRCUIT AND WITH THE

OVERWHELMING WEIGHT OF COMMON

LAW AUTHORITY

The Second Circuit held in this case that mere exposure

to asbestos, without any indication of disease or injury, can

serve as a basis for recovery under FELA and the zone of

danger test adopted by this Court in Gottshall. In so hold-

ing, the Second Circuit expressly "rejected the FELA cases

finding that asbestos fiber inhalation cannot constitute an

injury,” including specifically the Third Circuit’s decision

in Schweitzer. (A-20 to A-21) The Schweitzer rule is

identical to the common law of the overwhelming majority

of jurisdictions. In abandoning that rule under FELA, the

Second Circuit ignored this Court’s admonition to adhere

to the common law in deciding FELA cases. See

Gottshall, 114 S. Ct. at 2404, 2410.

In Schweitzer, an asbestos case arising under FELA, the

Third Circuit held that “subclinical injury resulting from

exposure to asbestos is insufficient to constitute the actual

loss or damage to a plaintiff's interest required to sustain a

cause of action under generally applicable principles of tort

law." Schweitzer, 758 F.2d at 942 (relying on Urie, 337

U.S. at 170, where this Court ruled that an employee ex-

posed to silica dust "can be held to be ‘injured’ only when

the accumulated effects of the deleterious substance mani-

fest themselves"). Although Schweitzer is not an emotional

distress case, the Schweitzer rule properly governs emotion-

al distress claims arising from asbestos exposure. As dis-

cussed below at Point II, in the absence of physical injury,

emotional distress claims are cognizable under FELA only

when they meet the zone of danger test. The required

elements of that test are not met in asbestos exposure cas-

es, and therefore, physical injury remains a prerequisite to

recovery.

The Second Circuit’s refusal to apply the Schweitzer rule

in this asbestos exposure case conflicts not only with

Schweitzer, but with the overwhelming majority of asbestos

exposure cases under FELA, the Jones Act,’ and the com-

mon law, including cases where claims for emotional dis-

tress or fear of cancer have been asserted. For example,

the court in Amendola v. Kansas City Southern Railway

Co., 699 F. Supp. 1401, 1407-11 (W.D. Mo. 1988), dis-

missed claims brought under FELA for mental anguish

allegedly caused by asbestos exposure where there was no

physical harm, noting that such a rule was necessary to

"keep[] the floodgates intact." See also Batko v. Ogilvie,

No. 85 C 7873, 1986 WL 5761 (N.D. Ill. May 9, 1986)

(dismissing FELA claims based on asbestos exposure

* The Jones Act incorporates Section | of FELA, 45 U.S.C. § 51.

See 46 U.S.C. app. § 688(a).

where no current injury was alleged, citing Schweitzer); In

re Asbestos Prods. Liab. Litig. (No. Vl), CA No. 2 MDL

875, 1996 WL 239863 (E.D. Pa. May 2, 1996) (dismissing

Jones. Act and state law claims based on mere asbestos

exposure). Likewise, the Third, Fourth, and Fifth Circuits

have held that, under the common law, exposure to asbes-

tos or other substances, without physical harm, cannot sup-

port a claim for negligent infliction of emotional distress.

See Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 274

(3d Cir. 1985); Ball v. Joy Technologies, Inc., 958 F.2d 36,

38 (4th Cir.), cert. denied, 502 U.S. 1033 (1992); Adams v.

Johns-Manville Sales Corp., 783 F.2d 589, 593 (Sth Cir.

1986).°

The application of the Schweitzer rule in emotional dis-

tress cases rests on the same principles and policy consid-

erations that this Court identified in Gottshall. Specifical-

ly, this Court mandated in Goftshall that courts applying

FELA must look to the common law’s substantial limita-

tions on recovery for purely emotional injuries. See

Gottshall, 114 S. Ct. at 2405-07, 2410-11. The Second

Circuit discounted the policies underlying these limitations

and sought to minimize the effect of its ruling by noting

* Accord Deleski v. Raymark Indus, 819 F.2d 377, 380 (3d Cir.

1987); Redland Soccer Club, Inc. v. Department of Army, 55 F.3d 827,

848 (3d Cir. 1995), cert. denied, 116 S. Ct. 772 (1996), In re Hawaii

Fed. Asbestos Cases, 734 F. Supp. 1563, 1569-70 (D. Haw. 1990);

Burns v. Jaquays Mining Corp., 752 P.2d 28, 30-31 (Ariz. Ct. App.

1987), review dismissed, 781 P.2d 1373 (Ariz. 1989); Mergenthaler v.

Asbestos Corp. of Am., 480 A.2d 647, 651 (Del. 1984), Eagle-Picher

Indus., v. Cox, 481 So. 2d 517, 528 (Fi. Dist. Ct. App. 1985), review

denied, 492 So.2d 1331 (Fla. 1986); Capital Holding Corp. v. Bailey,

873 S.W.2d 187, 192-95 (Ky. 1994); Doner v. Ed Adams Contracting,

617 N.Y.S.2d 565, 566 (App. Div. 1994); Simmons v. Pacor Inc., 674

A.2d 232, 238-39 (Pa. 1996); Bondy v. Texas Eastern Transmission

Corp., 701 F. Supp. 112, 114 (M.D. La. 1988), aff'd, 872 F.2d 422

(9th Cir. 1989); Locke v. Johns-Manville Corp., 275 S.E.2d 900, 904

(Va. 1981). ™

that “only a narrow class of plaintiff may sue under

FELA." (A-22 (citing Gottshall, 114 S. Ct. at 2412

(Ginsburg, J., dissenting))) In so doing, the Second Circuit

ignored this Court’s admonition in Goftshall that the need

to carefully limit liability exists "as a practical matter in

the FELA context as well, even though the statute limits

= to railroad workers." See Gottshall, 114 S. Ct. at

As the Third Circuit observed in Schweitzer, allowing

recovery based on exposure alone would create limitless

liability:

If mere exposure to asbestos were sufficient to give

rise to a F.E.L.A. cause of action, countless seemingly

healthy railroad workers, workers who might never

manifest injury, would have tort claims cognizable in

federal court. It is obvious that proof of damages in

such cases would be highly speculative, likely result-

ing in windfalls for those who never take ill and in-

sufficient compensation for those who do.

758 F.2d at 942. The Schweitzer court concluded that

"[rjequiring manifest injury as a necessary element of an

asbestos-related tort action avoids these problems and best

serves the underlying purpose of tort law: the compensa-

tion of victims who have suffered." /d.

Similarly, United States District Judge Charles Weiner,

who presides over the federal multidistrict asbestos person-

al injury litigation, recently dismissed the Jones Act and

state law claims of 261 plaintiffs who alleged exposure to

asbestos but had proffered no evidence of asbestos-related

physical injury. See In re Asbestos Prods. Liab. Litig.,

1996 WL 239863, at *5. Judge Weiner observed that the

"judicial system has been faced with an onslaught of per-

sonal injury, asbestos cases for more than twenty years."

Id. at *2. Citing the policy concerns set forth in

Schweitzer, Judge Weiner emphasized that plaintiffs who

actually have asbestos-related diseases “suffer while the

[cJourt [system] is clogged" with filings by exposed plain-

tiffs who (like plaintiff here) have no asbestos-related inju-

ries. Jd. at *5.

In place of the Schweitzer rule, the Second Circuit an-

nounced a rule that purports to limit recovery to "unusual"

cases of "lengthy" and "massive" asbestos exposure. (A-

23) The terms "lengthy" and "massive" provide an inher-

ently imprecise and unworkable standard; they are vague

and without definition in the scientific and medical litera-

ture on asbestos and health. Furthermore, the Second Cir-

cuit does not provide any factual basis for its assumption

that plaintiff's exposure was “unusual.” Indeed, a 1981

study for the United States Department of Labor by a lead-

ing researcher on asbestos and health estimated that more

than 21 million living American workers had been "signifi-

cantly exposed" to asbestos during the previous 40 years.

Irving J. Selikoff, Disability Compensation for Asbestos-

Associated Disease in the United States xiv (1981); see

also Jackson v. Johns-Manville Sales Corp., 750 F.2d

1314, 1323 & n.15 (Sth Cir. 1985) {en banc) (discussing

Selikoff study); Eagle-Picher, 481 So.2d at 528 & n.18

("Millions of people have been exposed to asbestos"; per-

mitting an action for fear of cancer without physical injury

from asbestos "would likely devastate the court system as

well as the defendant manufacturers"). The illogicality of

the Second Circuit’s standard is underscored by the fact

that many persons exposed to asbestos never develop any

asbestos-related disease.’

The Second Circuit’s rejection of the Schweitzer rule

also does violence to the FELA and general common law

proscription against claim-splitting. Although not consid-

” See In re Hawaii Fed. Asbestos Cases, 734 F. Supp. at 1569-70 &

n.10 (citing studies); Doner, 617 N.Y.S.2d at 566.

ered by the Second Circuit, the "single recovery" rule es-

tablished under this Court’s FELA jurisprudence is un-

avoidably implicated by the Second Circuit’s decision.

This Court has held that under FELA only one recovery

may be had by an employee for an employer’s wrongful

act, and that the employee’s right to recover is then extin-

guished. See Mellon v. Goodyear, 277 U.S. 335, 344

(1928); Flynn v. New York, N.H. & H. R. Co., 283 US.

53, 56 (1931).

In the usual zone of danger case, no issue of claim-split-

ting arises: a plaintiff who escapes physical injury at the

time of an accident or other traumatic event is not at risk

of developing future physical injuries as a consequence of

that event. His only possible claim is for emotional dis-

tress. In contrast, in asbestos exposure cases, a plaintiff

may develop one or more asbestos-related injuries years

after exposure. Under this Court’s prior FELA decisions,

if permitted to sue for emotional distress based on exposure

alone, a plaintiff would be barred from a second suit if he

should later develop an asbestos-related disease. Cf, e.g.,

Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 410-

12 (Sth Cir.) (en banc) (Mississippi law) (under "single

recovery" rule, a plaintiff suffering from one asbestos-relat-

ed disease, such as asbestosis, may sue only once and must

recover in that one suit damages for both his present dis-

ease and any other ailment that he is more likely than not

to develop in the future), cert. denied, 478 U.S. 1022

(1986).

Although a number of jurisdictions have adopted a "sepa-

rate disease" rule providing that asbestosis and cancer each

constitute a separate cause of action even though arising

from the same exposure to asbestos, see, e.g, Eagle-

Picher, 481 So. 2d at 520, no court has permitted claim-

splitting that would allow emotional distress claims to be

pursued separate and apart from physical injury claims.

Clearly, the better rule in asbestos cases is that adopted by

the overwhelming majority of courts, namely to restrict re-

covery for emotional distress to plaintiffs with actual phys-

ical injury caused by asbestos exposure.*

In sum, the Second Circuit’s decision in this case direct-

ly conflicts with the Third Circuit’s opinion in Schweitzer

and the vast majority of common law cases. Moreover, the

Second Circuit’s decision conflicts with the fundamental

policy considerations articulated by this Court in Gottshall

and opens the courtroom door to tens of thousands (per-

haps hundreds of thousands) of asymptomatic asbestos

plaintiffs.

II. THE SECOND CIRCUIT MISINTERPRETED

AND MISAPPLIED THE ZONE OF DANGER

TEST ARTICULATED BY THIS COURT IN

GOTTSHALL

Instead of adhering to the physical injury requirement

set forth for asbestos cases in Schweitzer, the Second Cir-

cuit incorrectly ruled that plaintiff's exposure to asbestos

met the zone of danger test, which this Court adopted in

Gottshall. To reach this result, the Second Circuit aban-

doned all of the traditional requirements of the zone of

danger test, namely, (i) an accident, near accident or other

traumatic event, which (ii) subjects the plaintiff to a risk of

imminent physical harm, (iii) causing fright and resultant

emotional injury. The Second Circuit’s ruling is funda-

mentally inconsistent with and impermissible under this

Court’s decision in Gottshall.

* The cases relied on by the Second Circuit do not support abandon-

ing the physical injury requirement: Hagerty v. L & L Marine Servs.,

788 F.2d 315, 316-17 (Sth Cir. 1986) (plaintiff suffered dizziness, leg

cramps, and a stinging sensation in his extremities, which court found

to be physical injuries); Lavelle v. Owens-Corning Fiberglas Corp.,

507 N.E.2d 476 (Ohio Ct. C.P. 1987) (plaintiff had a physical injury -

asbestosis).

In Gottshall, this Court determined that purely emotional

distress is compensable under FELA only if it falls under

the common law "zone of danger" test. 114 S. Ct. at

2410-11. Under the zone of danger test, "a worker within

the zone of danger of physical impact will be able to re-

cover for emotional injury caused by fear of physical inju-

ry to himself, whereas a worker outside the zone will not."

Id. This test, which provides an exception to the general

common law rule allowing recovery for emotional distress

only where the plaintiff has suffered a physical injury,

arose in response to a special category of cases involving

accidents and near accidents in which a plaintiff suffered

fright and severe emotional distress. As courts recognized,

the general rule arbitrarily denied recovery to a physically

uninjured plaintiff while permitting the slightly injured

plaintiff standing next to him to recover, even though the

two had suffered the same fright and resultant emotional

harm in a traumatic event. See Richard N. Pearson, Liabil-

ity to Bystanders for Negligently Inflicted Emotional Harm

-- A Comment on the Nature of Arbitrary Rules, 34 U. Fla.

L. Rev. 477, 488 (1982). Thus, the zone of danger test is

based on the "realization that °a near miss may be as

frightening as a direct hit."" Gottshall, 114 S. Ct. at 2406

(quoting Pearson, supra, at 488).

Courts have, however, defined specific boundaries to

emotional distress claims under the zone of danger test so

that every person who was ever frightened or claimed that

his workplace was generally hazardous would not have a

cause of action. The requirement that a plaintiff be within

the zone of danger of imminent physical harm is ineluc-

tably linked to recovery under the test; without such a risk

of immediate harm, there can be no zone of danger.

Indeed, the early zone of danger cases cited by this

Court in Gottshall make clear that the risk of imminent

physical injury is an essential and defining element of the

test; these cases all involve collisions or near collisions of

trains, streetcars and carriages, or other sudden, traumatic

events that caused fright, with resultant mental injury, to

the plaintiffs. See Gottshall, 114 S. Ct. at 2406 & n8.

For example, in Purcell v. St. Paul City Ry. Co., 50 N.W.

1034 (Minn. 1892), after a near collision of streetcars, a

pregnant passenger was allowed to recover for fright and

physical injuries resulting from fright. As the court ex-

plained,

a collision seemed so imminent, and was so nearly

caused, that the incident and attending confusion of

ringing alarm-bells and passengers rushing out of the

car caused to plaintiff sudden fright and reasonable

fear of immediate death or great bodily injury, and

that the shock thus caused threw her into violent con-

vulsions, and caused to her, she being then pregnant,

a miscarriage, and subsequent illness.

Id. at 1034 (emphasis added).’

* The other early cases cited by this Court in Gottshall, 114 S. Ct. at

2406 n.8, involve similar circumstances: Simone v. Rhode Island Co.,

66 A. 202 (R.1. 1907) (streetcar collision caused plaintiff fright result-

ing in fainting, vomiting, insomnia, headache, physical pain, three

months in bed, and nervous disorders and weakness up to time of tri-

al); Kimberley v. Howland, 55 S.E. 778 (N.C. 1906) (blasting sent rock

crashing through plaintiff's house, causing plaintiff fright, shock, near

miscarriage, and nervous physical pain and suffering); Gulf C. & S. F.

Ry. v. Hayter, 54 S.W. 944 (Tex. 1900) (plaintiff in train collision

could recover for fright and shock resulting in physical injury); Mack

v. South-Bound R. Co., 29 S.E. 905, 906 (S.C. 1898) (plaintiff "just

barely escaped being struck by the locomotive and cars, and. . . owing

to the great and imminent danger . . . was terribly frightened, his ner-

vous system was shocked, his mind was affected and partially de-

Nor have more recent cases expanded the boundaries of

the zone of danger test. Such cases allow recovery only

for fright and attendant emotional distress caused by danger

of immediate physical injury from an accident or other

sudden, traumatic event. For example, in Robb v. Pennsyl-

vania Railroad Co., 210 A.2d 709, 714 (Del. 1965), cited

by this Court in Gottshall, 114 S. Ct. at 2406 n.9, the Del-

aware Supreme Court adopted the zone of danger test to

permit recovery for fright and emotional distress in a case

where a plaintiff fled uninjured from her car seconds be-

fore the car was hit by a train."°

stroyed, his reason unbalanced, and he, for a long time, was made ill

and sick and suffered great mental anguish and physical pain”);

Pankopf v. Hinkley, 123 N.W. 625 (Wis. 1909) (collision between car

and horse-drawn carriage caused plaintiff severe fright and shock, and

resultant miscarriage, severe pain and permanent injury to health);

Stewart v. Arkansas S. R. Co., 36 So. 676 (La. 1904) (fright from train

accident resulted in plaintiff's suffering miscarriage and subsequent ill

health); Watson v. Dilts, 89 N.W. 1068 (lowa 1902) (plaintiff suffered

shock, fright, apprehension for her own life, prostration, nervous paral-

ysis, and great mental and physical pain when defendant broke into

home and assaulted husband).

'° Also cited by this Court in Gottshall were Keck v. Jackson, 593

P.2d 668 (Ariz. 1979) (en banc) (car accident); Towns v. Anderson,

579 P.2d 1163 (Colo. 1978) (explosion); Rickey v. Chicago Transit Au-

thority, 457 N.E.2d 1 (Ill. 1983) (escalator accident); Bovsun v.

Sanperi, 461 N.E.2d 843 (N.Y. 1984) (automobile accident); Garrett v.

City of New Berlin, 362 N.W.2d 137 (Wis. 1985) (plaintiff in a group

of children chased by police car). Conversely, the other recent zone of

danger cases cited by this Court in Gottshall disallow recovery where

the plaintiff was not at risk of, and did not fear, immediate physical

injury: Williams v. Baker, 572 A.2d 1062 (D.C. 1990) (en banc);

Resavage v. Davies, 86 A.2d 879 (Md. 1952); Stadler v. Cross, 295

N.W.2d 552 (Minn. 1980); Asaro v. Cardinal Glennon Memorial Hos-

p., 799 S.W.2d 595 (Mo. 1990) (en banc); Whetham v. Bismarck

Hosp., 197 N.W.2d 678 (N.D. 1972); Shelton v. Russell Pipe & Found-

ry Co., 570 S.W.2d 861 (Tenn. 1978); Boucher v. Dixie Medical Ctr.,

So, too, in FELA cases both before and after this

Court’s decision in Gottshall, the zone of danger test has

been restricted to claims arising out of sudden accidents or

other traumatic events that present a danger of immediate

physical injury, causing fright and severe emotional dis-

tress. For example, in McMillan v. National Railroad Pas-

senger Corp., 648 A.2d 428, 434 (D.C. 1994), the court

held that, under FELA and Gottshall, the zone of danger

concept requires that plaintiff "was subject to a reasonable

fear of immediate personal injury" (emphasis added). Ac-

cordingly, plaintiff was not in a zone of danger by virtue

of the proximity of a worker who had on occasion punched

other workers. The court emphasized that the “threat of

injury" to the plaintiff "was not immediate," but rather was

"both speculative and remote." Jd. at 434; see also Vance

v. Consolidated Rail Corp., 652 N.E.2d 776, 783 (Ohio

1995) (plaintiff was in zone of danger because he was

threatened with a chipping hammer and nearly run over

with a truck by fellow employees, and thus placed in risk

of immediate harm), cert. denied, 116 S. Ct. 776 (1996);

Grube v. Union Pac. R.R., 886 P.2d 845, 851 (Kan. 1994)

("fear for one’s safety is an essential element of the zone

of danger test and must be expressed at or near the time of

the danger"); Garcia v. Burlington N. R.R., 904 P.2d 1085,

1087 (Or. Ct. App. 1995) (under Gottshall, zone of danger

"is a location in which the plaintiff is at ‘immediate risk of

physical harm’") (citation omitted)."’

850 P.2d 1179 (Utah 1992); Jobin v. MeQuillen, 609 A.2d 990 (Vt.

1992).

'' See also Outten v. National R.R. Passenger Corp., 928 F.2d 74, 78

(3d Cir. 1991); Gillman v. Burlington N. RR, 878 F.2d 1020, 1023

(7th Cir. 1989); Wilson v. Consolidated Rail Corp., 810 F. Supp. 411,

416 (N.D.N.Y. 1993); Anselmi v. Penrod Drilling Corp., 813 F. Supp.

436, 442 (E.D. La. 1993) (Jones Act); Crooks v. Metro-North Com-

muter RR, No. 93 Civ. 6030 (JSM), 1994 WL 719683 at *2

Contrary to the Second Circuit’s holding, the zone of

pom gh does not apply to this fear of disease

its very terms, plaintiff's claim urges the antithesis of a

risk of immediate harm: he bases his claim on an alleged

risk of injury that may occur at some indefinite time in the

future. As such, plaintiff's claim falls well outside the

boundaries of the "zone of danger” test.

Indeed, not only is the Second Circuit alone in applying

the zone of danger test in asbestos litigation, but other

courts have expressly declined to do so. As the court in

Nutt v. A.C. & S, Inc., 466 A.2d 18 (Del. Super. Ct.

1983), aff'd, 480 A.2d 647 (Del. 1984), stated, because

"{c}linical symptoms may not be observable until after

many years of exposure, and disability may progress even

after exposure has ceased . . . [t]he nature of the asbestos

related injury, whether considered on an exposure or a

manifestation basis, is clearly incompatible with the trau-

matic event requirement for recovery of mental anguish

under [the zone of danger test]." 466 A.2d at 25; see also

Wisniewski, 759 F.2d at 273-74 (Pennsylvania law) (reject-

ing argument of uninjured asbestos plaintiffs that zone of

danger test allowed recovery for emotional distress).

Similarly, the Fifth Circuit rejected a plaintiff's argu-

ment that recovery for mental anguish allegedly caused by

asbestos exposure was permitted under Louisiana’s "ordeal"

(S.D.N.Y. Dec. 28, 1994); Bianco v. Philadelphia, Bethlehem & New

England R.R., No. Civ. A. 93-4828, 1995 WL 89036, at *3 (E.D. Pa.

Mar. 2, 1995); Dziegelewski v. Consolidated Rail Corp., No. 93 Civ.

2666 (MBM), 1995 WL 63155 at *2 (S.D.N.Y. Feb. 15, 1995).

rule, which is essentially equivalent to the zone of danger

test.'? See Adams v. Johns-Manville Sales Corp., 783 F.2d

at 592-93. The Fifth Circuit explained that while the Loui-

siana cases “allowed recovery for mental anguish engen-

dered by a proven traumatic ordeal which did not result in

physical injury,” such cases did not recognize any right of

recovery for mental anguish arising from fear of future

complications from asbestos exposure where plaintiff had

not proved that he had sustained any present injury from

such exposure. /d. at 593.

The Second Circuit’s conclusion to the contrary turns

upon its determination that plaintiff suffered a “physical

impact,” namely, exposure to asbestos. (A-19) In ruling

that plaintiff could recover on this basis, the Second Circuit

incorrectly treats physical impact as a basis for recovery

separate and apart from the requirement that plaintiff have

been within the zone of danger.

The Second Circuit’s error derives from its misunder-

standing of certain language in Gottshall describing the

zone of danger test as “limit{ing] recovery for emotional

injury to those plaintiffs who sustain a physical impact as a

result of a defendant’s negligent conduct, or who are

placed in immediate risk of physical harm by that con-

duct.” 114 S. Ct. at 2406. With respect to the zone of

danger requirement, this is not, as the Second Circuit ap-

pears to have concluded, a disjunctive test; on the contrary,

in the very next sentence, this Court explained precisely

what it meant: "That is, "those within the zone of danger

of physical impact can recover for fright, and those outside

of it cannot.’" /d. (citation omitted).

'2 Im near-miss accident and other traumatic event cases, Louisiana's

“ordeal” rule permits an uninjured plaintiff to recover for fright and

mental anguish. See Adams, 783 F.2d at 593 (citing, eg, Carroll v.

State Farm Ins. Co., 427 So. 2d 24 (La. Ct. App. 1983)).

Stated simply, there exists no separate test under

Gottshall which permits a FELA plaintiff to recover for

negligent infliction of emotional distress whenever that

plaintiff can demonstrate some sort of “physical impact,”

regardless of whether that plaintiff is in the zone of danger.

Indeed, such an impact test was one of the "[t}hree major

limiting tests for evaluating claims alleging negligent in-

fliction of emotional distress" that this Court considered in

Gottshall. See id This Court expressly declined to adopt

such a test, rejecting it in favor of the zone of danger test.

See id. at 2411.

Interpreting the zone of danger test, as the Second Cir-

cuit has done, to include a separate impact test that has

nothing to do with the zone of danger and the concomitant

risk of imminent harm would give rise to the absurd and

much criticized results that led to the abandonment of the

old "physical impact” test in the first place. See, e.g, W.

Page Keeton ef al., Prosser and Keeton on the Law of

Torts 363-6 (Sth ed. 1984) (noting the expansion of the

meaning of the "impact" test and observing: "The magic

formula impact’ is pronounced; the door opens to the full

joy of a complete recovery.") (citation omitted). Although

early cases under the old impact rule required a physical

injury caused by an impact, gradually the impact rule was

relaxed, as courts struggled to find a way to allow recovery

in cases where an uninjured plaintiff had suffered great

fright and emotional trauma from a near-miss accident.

See Bloom v. Consolidated Rail Corp., 41 F.3d 911, 916

n.6 (3d Cir. 1994). Thereafter, in some jurisdictions, the

impact rule was further diluted so as to allow recovery in

cases where there had been an impact of any kind no mat-

ter how slight, regardless of whether there had been an

accident, a near accident, or a zone of danger. Finally, as

Professors Prosser and Keeton observe, "[a] Georgia circus

case reduced the matter to something of an absurdity by

finding *impact’ where the defendant’s horse ‘evacuated

his bowels’ into the plaintiff's lap." See Keeton ef al., su-

pra, at 364. This is not the rule that this Court adopted in

Gottshall. Rather, the zone of danger test, as adopted in

Gottshall, removed the rationale for the diluted and arbi-

trary "physical impact" test by allowing both impacted and

unimpacted plaintiffs to recover for emotional distress pro-

vided their distress arose from fright caused by the threat

of imminent physical harm while in the zone of danger.

See Bloom, 41 F.3d at 916 n.6.

In sum, under the prevailing principles of law and public

policy articulated in Gottshall and other cases, the zone of

danger test does not permit recovery under FELA for al-

leged emotional distress caused by exposure to asbestos.

The Second Circuit’s decision to the contrary is an un-

sound and erroneous expansion of liability.

Ill. THE SECOND CIRCUIT, IN CONTRAVEN-

TION OF GOTTSHALL’S MANDATE, DIS-

CARDED WELL-ESTABLISHED COMMON

LAW LIMITATIONS ON RECOVERY FOR

EMOTIONAL DISTRESS

In addition to its misapplication of the zone of danger

test, the Second Circuit improperly discarded every other

requirement imposed by the common law to place rational

limits on liability for negligent infliction of emotional dis-

tress -- namely, that a plaintiff's emotional distress must

result in a physical manifestation, be severe, and be sub-

stantiated by competent medical or psychiatric evidence."’

Abandonment of these limitations creates an unprecedented

expansion of liability for negligent infliction of emotional

' These issues were not, and need not have been, addressed in

Gottshall because both plaintiffs clearly satisfied all three of these

requirements. See 114 S. Ct. at 2400-02.

distress, a result that is in direct conflict with this Court’s

mandate in Gottshall to preserve common law limitations

on recovery for such claims. As this Court observed in

Gottshall, “[ojur FELA cases require that we look to the

common law . . . , and the common law restricts recovery

for negligent infliction of emotional distress on several

policy grounds: the potential for a flood of trivial suits,

the possibility of fraudulent claims that are difficult for

judges and juries to detect, and the specter of unlimited

and unpredictable liability." 114 S. Ct. at 2411; see also

id. at 2404 (common law principles "must play a signifi-

cant role" and “are entitled to great weight" in analysis of

negligent infliction of emotional distress under FELA).

A. The Second Circuit Erred in Holding That No

Physical Manifestation of Emotional Distress Is

Required

The Second Circuit declined to require that plaintiff's al-

leged emotional distress manifest itself in physical symp-

toms. (A-21) With this ruling, the Second Circuit contra-

vened the "overwhelming weight of authority across the

nation,” which holds that to be compensable, emotional

distress must result in "some physical manifestation." See

Plummer v. Abbott Labs., 568 F. Supp. 920, 926-27 (D.R.I.

1983).'* Indeed, as this Court observed in Atchison, Tope-

‘* For other cases requiring physical manifestation, see eg. Robb,

210 A.2d at 714-715 (Del.); Hatfield v. Max Rouse & Sons Northwest

606 P.2d 944, 955 (Idaho 1980); Payton v. Abbott Labs, 437 N.E.2d

171, 181 (Mass. 1982); State ex rel. Woyke v. Tonka Corp., 420

N.W.2d 624, 627 (Minn. Ct. App. 1988); Sears Roebuck & Co. v.

Young, 384 So. 2d 69, 71, 73 (Miss. 1980); Corso v. Merrill, 406 A.2d

300, 308 (N.H. 1979); Falzone v. Busch, 214 A.2d 12, 17 (N.J. 1965);

Melton v. Allen, 580 P.2d 1019, 1021-22 (Or. 1978); Reilly v. United

States, 547 A.2d 894, 896-97 (R.1. 1988); Nelson v. WEB Water Dev.

Ass'n, Inc., 507 N.W.2d 691, 699 (S.D. 1993); Hughes v. Moore, 197

S.E.2d 214, 219 (Va. 1973); Vaillancourt v. Medical Ctr. Hosp., 425

A.2d 92, 95 (Vt. 1980).

ka & Santa Fe Railway v. Buell, "{o\ne leading commen-

tary states that "[iJn the great majority of cases allowing

recovery the genuineness of the mental disturbance has

been evidenced by resulting physical illness of a serious

character." 480 U.S. 557, 569 n.18 (1987) (quoting

Keeton ef al., supra, at 64); see also Gottshall, 114 S. Ct.

at 2407 n.11.

The majority view that physical manifestation is required

is also reflected in the Restatement (Second) of Torts,

which states:

If the actor’s conduct is negligent as creating an un-

reasonable risk of causing either bodily harm or emo-

tional disturbance to another, and it results in such

emotional disturbance alone, without bodily harm or

other compensable damage, the actor is not liable for

such emotional disturbance.

Restatement (Second) of Torts § 436A (1965).

Significantly, the requirement of physical manifestation

was the prevailing rule under the common law at the time

of FELA’s enactment in 1908. See note 9, supra; see also

Gottshall, 114 S. Ct. at 2410 (looking to "state of common

law in 1908, when FELA was enacted" and noting "histor-

ical pedigree" of zone of danger test). In addition, con-

trary to the Second Circuit, courts in recent cases have spe-

cifically required a physical manifestation of emotional dis-

tress under FELA. See Williams v. Carnival Cruise Lines,

907 F. Supp. 403, 406-07 (S.D. Fla. 1995) (applying

Gottshall and requiring that emotional distress be accompa-

nied by "physical manifestation" under FELA and Jones

Act); Amendola, 699 F. Supp. at 1410 (pre-Gottshall, re-

quiring asbestos plaintiff under FELA to show physical

harm either causing or caused by emotional distress); cf

Ellenwood v. Exxon Shipping Co., 795 F. Supp. 31, 34-35

(D. Me. 1992) (in light of FELA and Jones Act case law,

requiring physical manifestation under general maritime

law), aff'd in relevant part, 984 F.2d 1270 (ist Cir.), cert.

denied, 508 U.S. 981 (1993).

As these courts have recognized, the physical manifesta-

tion requirement furthers the fundamental policy concerns

that this Court identified in Gottshall for imposing limita-

tions on liability. See Amendola, 699 F. Supp. at 1411

(the physical manifestation test "will serve to limit trivial,

frivolous, or premature claims" under FELA). The Re-

statement also emphasizes these policy concerns:

[E}motional disturbance which is not so severe and

serious as to have physical consequences is normally

in the realm of the trivial .. . . It is likely to be so

temporary, so evanescent, and so relatively harmless

and unimportant, that the task of compensating for it

would unduly burden the courts and the defendants.

Restatement (Second) of Torts § 436A, cmt. b (1965).

In sum, absent a requirement of physical manifestation,

a defendant’s liability for claims of emotional distress

under FELA would be unpredictable and nearly infinite --

the very result the common law limitations on emotional

distress claims were designed to avoid. See Gottshall, 114

S. Ct. at 2408-09.

B. The Second Circuit Incorrectly Held That Emo-

tional Distress Is Compensable Even If It Is Not

Severe

The Second Circuit also departed from well-settled com-

mon law principles in holding that plaintiff could recover

for emotional distress that, as the Second Circuit acknow!-

edged, was not severe. (A-25) Contrary to the Second

Circuit’s holding, courts have overwhelmingly ruled that

there can be no recovery for the negligent infliction of

emotional distress if the distress is not severe. As this

Court observed in Buell, 480 U.S. at 567 n.13, “severe

emotional injury . . . has generally been required to estab-

lish liability for purely emotional injury." See also Roberts

v. Saylor, 637 P.2d 1175, 1180 (Kan. 1981) ("it is only

when emotional distress is extreme that possible liability

arises"); Parkway Co. v. Woodruff, 901 S.W.2d 434, 444

(Tex. 1995) (requiring a "high degree of mental pain and

distress" that is "more than mere worry, anxiety, vexation,

embarrassment or anger").'° In fact, Metro-North has

found no case that supports the Second Circuit’s claim that

"emotional distress must be ‘severe’ only when a plaintiff

has not suffered a physical impact.""® (A-24)

Numerous courts and commentators have noted that the

severity requirement serves not only to guarantee the genu-

'S Accord, e.g. Williams v. Baker, 572 A.2d at 1068; Rodrigues v.

State, 472 P.2d 509, 520 (Haw. 1970); Poulsen v. Russell, 300 N.W.2d

289, 297 (lowa 1981); Robertson v. Geophysical Service, Inc., 469 So.

2d 22, 24 (La. Ct. App. 1985); Culbert v. Sampson's Supermarkets

Inc., 444 A.2d 433, 437 (Me. 1982); K.A.C. v. Benson, 527 N.W.2d

553, 559 (Minn. 1995); Parrish v. Omaha Pub. Power Dist., 496

N.W.2d 914, 915 (Neb. 1993); /ronbound Health Rights Advisory

Comm'n v. Diamond Shamrock Chems. Co., 578 A.2d 1248, 1250 (N.J.

Super. Ct. App. Div. 1990); Johnson v. Ruark Obstetrics & Gynecolo-

gy Assocs., 395 S.E.2d 85, 97 (N.C. 1996); Muchow v. Lindblad, 435

N.W.2d 918, 923 (N.D. 1989); Bowen v. Lumbermens Mut. Casualty

Co., 517 N.W.2d 432, 442-43 & n.23 (Wis. 1994).

'© The Second Circuit's reliance on two trial court decisions (A-24) is

misplaced. Lacy v. Cooper Hospital/University Med. Ctr., 745 F.

Supp. 1029, 1035 (D.N.J. 1990), does not discuss physical impact or

distinguish between severe and non-severe emotional distress, but rath-

er applies a longstanding exception to the threshold physical injury re-

quirement in cases where a corpse has been mishandled. Lavelle v.

Owens-Corning Fiberglas Corp., 507 N.E.2d 476, 478 (Ohio Ct. C.P.

1987), involved a plaintiff who had an actual physical injury (asbesto-

sis). Moreover, Restatement (Second) of Torts § 436A, cited by the

Second Circuit, requires physical harm, not merely physical impact.

ineness of emotional distress claims, but also to limit the

variability and unpredictability of awards for emotional

distress and the unlimited liability that would result if rela-

tively trivial emotional distress were compensable. See,

e.g., Parkway, 901 S.W.2d at 443-44. Moreover, like the

physical manifestation requirement, the severity require-

ment accords with the purposes of FELA. As this Court

observed in Gottshall, the basic rationale for finding that

emotional injury is an injury within the meaning of Section

1 of FELA was the recognition that "severe emotional inju-

ries can be just as debilitating as physical injuries." 114 S.

Ct. at 2408. It is within the purpose of the statute to com-

pensate such injuries; it is not within the purpose of the

Statute to compensate non-severe emotional distress of the

kind alleged by plaintiff in this case.

Cc, The Second Circuit Erred by Not Requiring

Medical or Psychiatric Evidence of Emotional

Distress

The Second Circuit overturned the trial court’s finding

that plaintiff presented no objective evidence of his emo-

tional distress. (A-24 to A-25) To reach this result, the

Second Circuit departed from the well-established common

law rule imposing upon plaintiffs the burden of presenting

some objective medical, psychiatric or clinical evidence of

alleged emotional distress.'’ The rationale for this basic

" See, e.g, Aurora v. Burlington N. RR, 31 F.3d 724, 726 (8th Cir.

1994) (requiring proof of "medically significant" emotional distress;

testimony by psychiatrist that plaintiff was "anxious and depressed” but

did not need medication or follow up treatment was insufficient as a

matter of law); accord Kadans v. Citicorp Mortgage, Inc., 26 F.3d 131

(9th Cir. 1994) (unpublished, table; text at 1994 WL 242112, at *1)

(Nevada law); Silver v. Mendel, 894 F.2d. 598, 607 n.19 (3d Cir.

1990), cert denied, 496 U.S. 926 (1990); Thomas v. FAG Bearings

Corp., 846 F. Supp. 1400, 1406 (W.D. Mo. 1994); Bass v. Nooney Co.,

646 S.W.2d 765, 772-73 (Mo. 1983) (en banc); Parrish, 496 N.W.2d

videnti uirement is similar to the policy consider-

a rw above which underlie the other common

law requirements for negligent infliction of emotional dis-

tress. In particular, courts have observed tat the require-

ment of medically provable and diagnosable mental distress

defines an appropriate middle ground of liability, between

the "Scylla of unlimited liability" which would result from

a “broad definition of “emotional harm’ -- one which in-

cludes upset, anger, and grief" -- and the "Charybdis of no

liability" which would result from a requirement of perma-

nent mental damage. Bass v. Nooney Co., 646 S.W.2d

765, 773 n.4 (Mo. 1983) (en banc) (citation omitted).

In this case, the evidence cited by the Second Circuit in-

disputably does not meet the common law standard of

proof. Plaintiff presented no medical or psychiatric evi-

dence of emotional distress. He never consulted a psychia-

trist, social worker, or counselor, (TR : eat | - his

wn ex testified that he did not display a level of con-

pee rte counseling. (TR at 549; A-8) Indeed,

even the Second Circuit characterized the evidence it cited

of plaintiff's emotional distress as "slim." (A-24) That evi-

dence consisted of evidence that Metro-North employees

complained about working conditions and of plaintiff's

own conclusory allegations of fear and anger. (A-24)

Such evidence does not constitute proof of emotional dis-

tress, much less the required objective medical or psychiat-

ric proof.

at 915-16 (Neb.); Kohn v. Schiappa, 656 A.2d 1322, 1325 (NJ. Super.

Law Div. 1995); Leone v. Leewood Srv. Station, 624 N.Y.S.2d 610,

613 (App. Div.), appeal denied, 658 N.E.2d 221 (N.Y. 1995);

Muchow, 435 N.W.2d at 923 (N.D.); Camper v. Minor, 915 S.W.2d

437, 446 (Tenn. 1996); Hansen v. Mountain Fuel Supply Co., 858 P.2d

970, 974-75 (Utah 1993).

There is no support in the common law to permit such a

totally unverified claim of emotional distress to go to a

jury. Moreover, under Section 1 of FELA, a compensable

injury is a mandatory statutory element of a cognizable

claim, and it is an element which plaintiff must prove. See

In re Asbestos Prods. Liab. Litig., 1996 WL 239863, at *3.

The Second Circuit has effectively removed the need not

only for objective medical or psychiatric proof of emotion-

al injury, but the need for any objective evidence whatso-

ever.'* Under the Second Circuit's standard, a plaintiff's

conclusory allegations of the most trivial and transitory dis-

tress will suffice to establish a compensa-ble emotional

injury. The Second Circuit’s ruling is contrary to well-set-

tled common law principles and common sense and war-

rants reversal by this Court.

IV. THE SECOND CIRCUIT ERRED IN ALLOW-

ING AN ASYMPTOMATIC PLAINTIFF TO

RECOVER MEDICAL MONITORING DAM-

AGES, IN DIRECT CONFLICT WITH FELA’S

STATUTORY "INJURY" REQUIREMENT

The Second Circuit determined that plaintiff's separate

claim for medical monitoring damages was cognizable

under FELA "despite the fact that he has yet to suffer an

asbestos-related disease." (A-26) This conclusion is di-

rectly contrary to the express language of the statute, which

requires an injury as the basis for recovery. FELA pro-

* In refusing to require objective medical, psychiatric or clinical evi-

dence, the Second Circuit inappropriately relied on civil rights cases

under 42 U.S.C. § 1983. In such civil rights cases, an independent

constitutional tort, with an injury such as job discrimination or false

imprisonment, serves as the basis for awarding »motional distress dam-

ages flowing from the tort. See, eg, Bolden v. Southeastern Pa.

Transp. Auth., 21 F.3d 29, 34 (3d Cir. 1994) (citing Carey v. Piphus,

435 U.S. 247 (1978)); Miner v. City of Glen Falls, 999 F.2d 655, 662

(2d Cir. 1993). No such independent tort exists in this case.

vides that "[e]very common carrier by railroad . . . shall be

liable in damages to any person suffering . . . injury or

death resulting in whole or in part from the negligence of

any of the officers, agents, or employees of such carrier."

45 U.S.C. § 51 (emphasis added). The Second Circuit

ignored the dispositive fact that, under the applicable

caselaw of this Court, plaintiff in this case suffered no "in-

jury" that could serve as the statutory -- and factual -- basis

for his claim for medical monitoring damages.

In Urie v. Thompson, 337 U.S. 163 (1949), this Court

held that under FELA a worker exposed to a potentially

harmful substance is not "injured," and thus may not be

deemed to have a cause of action, until and unless "the

accumulated effects of the deleterious substance manifest

themselves." Jd. at 170; see also Schweitzer, 758 F.2d at

942. Here, the accumulated effects of plaintiff's asbestos

exposure have not manifested themselves in any way; in-

deed, plaintiff is totally asymptomatic. Therefore, plaintiff

suffers from no cognizable injury to support a medical

monitoring claim under FELA. See Batko v. Ogilvie, 1986

WL 5761, at *1, *3 (under FELA, denying claims for fu-

ture medical costs where plaintiffs had been exposed to as-

bestos but had no injury)."”

Even if one assumes arguendo that plaintiff in this case

suffered an emotional injury compensable under FELA, the

medical monitoring damages plaintiff seeks to recover have

no factual nexus to that injury. Plaintiff's purported need

for medical monitoring does not arise from his alleged

emotional injury, but rather from the possibility that he

may later develop an asbestos-related disease. Therefore,

'? None of the medica! monitoring cases cited by the Second Circuit

arises under FELA or any other statute imposing a comparable "injury"

requirement.

his alleged emotional injury cannot serve as the basis for

recovery of medical monitoring damages.

Moreover, by allowing medical monitoring damages in

the absence of any physical injury, the Second Circuit

embraced a novel theory of damages that is contrary to

traditional common law principles and, indeed, has been

recognized in only a small minority of jurisdictions. In so

doing, the Second Circuit improperly disregarded the fun-

damental policy considerations for limiting liability that

this Court identified in Gorttshall. Such policy concerns

have been cited by courts in denying recovery under state

common law for medical monitoring in the absence of

physical injury. As one court observed:

[t}here is little doubt that millions of people have suf-

fered exposure to hazardous substances. Obviously,

allowing individuals who have not suffered any de-

monstrable injury from such exposure to recover the

costs of future medical monitoring in a civil action

could potentially devastate the court system as well as

defendants.

Ball v. Joy Mfg. Co., 755 F. Supp. at 1372.” Furthermore,

allowing uninjured plaintiffs to bring causes of action for

medical monitoring will consume scarce judicial resources,

postponing recovery for the injured. See, e.g., Peter H.

Schuck, The Worst Should Go First: Deferral Registries in

Asbestos Litigation, 15 Harv. J.L. & Pub. Pol’y 541, 575-

76 (1992) ("As between the claims of the already impaired

and the claims of those who are not now (and may never

become) sick, . . . society should aczord higher priority to

the former.").

*® See also Thomas v. FAG Bearings, 846 F. Supp. at 1410 (same):

Carroll v. Litton Sys., Inc., No. B-C-88-253, 1990 WL 312969, at *51-

52 (W.D.N.C. Oct. 29, 1990).

Ultimately, however, in this case, it is not up to the Sec-

ond Circuit or even this Court to resolve the policy ques-

tions raised by the medical monitoring claim asserted by

this totally asymptomatic plaintiff. The statute is clear:

such a cause of action is not permitted under FELA in the

absence of a present injury. The courts may not rewrite

the statute; it is up to Congress, if it desires to do so, to

change the law to permit such a cause of action.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully Submitted,

Sheila L. Birnbaum*

Barbara Wrubel

Douglas W. Dunham

Ellen P. Quackenbos

*Counsel of Record

Skadden, Arps, Slate,

Meagher & Flom

919 Third Avenue

New York, New York 10022

(212) 735-3000

Richard K. Bernard

Metro-North Commuter

Railroad Company

347 Madison Avenue

New York, New York 10017

Of Counsel

APPENDICES

APPENDIX A- DECISION OF THE UNITED

STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF

NEW YORK DATED MARCH 13,

1995

MICHAEL BUCKLEY, Plaintiff,

METRO-NORTH COMMUTER RAILROAD, Defendant.

No. 89 Civ. 7170-A( WK).

United States District Court,

S.D. New York

March 13, 1995.

WHITMAN KNAPP, Senior District Judge.

This is a case brought under the Federal Employers

Liability Act ("FELA") by one of the “snowmen of Grand

Central Terminal" for negligent infliction of emotional

distress caused by defendant Metro-North’s negligent expo-

sure of plaintiff to asbestos from June of 1985 to early

September, 1987. Because defendant had conceded negli-

gence, the only issues at trial were causation and damage. At

the close of plaintiff's case, defendant moved for a directed

verdict. Because we find that plaintiff failed to prove that he

had sufficient impact with asbestos to result in a reasonable

fear of developing an asbestos-related disease; and because he

failed to prove that he had suffered a real emotional injury,

we grant defendant’s motion and direct a verdict in its favor.

Statement of the Facts

Drawing all reasonable inferences in plaintiff's favor, the

relevant facts are as follows: Plaintiff Michael Buckley is a

39-year-old pipefitter who has worked for Metro-North at

Grand Central Terminal since 1985. When Buckley was first

hired as a pipefitter, Metro-North ordered him to work in the

network of steam tunnels that run beneath Grand Central

Terminal. There are miles and miles of pipes in those

tunnels, covered with white insulation.

As a pipefitter, Buckley was assigned to repair and

maintain these pipes. To do so, Buckley would have to

remove the old white insulation from the pipe he was

working on. He would take whatever tools he had

available--a hammer, axe, wire shears--and pound the

insulation away from the area where he had to work. As he

did so, the insulation would break apart and fall to the floor.

Buckley would kick it aside to get it out of his way, releasing

clouds of white insulation dust into the air. He would

become covered with this dust--it would get into his hair, his

face, his mouth, his nose, his clothes. He would come up

from the steam tunnels literally covered from head to toe

with white insulation dust. Thus the nickname "snowman of

Grand Central.”

Most of this white insulation dust was asbestos, a known

cancer-causing substance. Over a three-year period, from

June of 1985 to June of 1988, Buckley worked on average

for one hour a day actually removing and handling this

insulation. Metro-North admits that it knew asbestos was

present in Grand Central Terminal and that it knew of the

hazard that working with and around asbestos posed to the

health of its employees. It admits that it negligently exposed

plaintiff to asbestos from June 1985 until early September of

1987. Metro-North admits that during this period it did not

warn plaintiff that he was being exposed to asbestos, nor did

it provide training for him on how safely to handle asbestos.

‘

;

On August 31, 1987, Metro-North sent Buckley and his

co-workers to an all-day asbestos awareness class. There

Buckley was told that the insulation he had been working

with was asbestos, and that asbestos exposure causes pain-

fully deadly diseases such as lung cancer, mesothelioma and

asbestosis. At that class, Buckley was shown how to remove

asbestos insulation, and was given a half-face respirator that

was not fit-tested. He was also shown two videotapes: one

of men lying in hospital beds gasping painfully for air as

they slowly died from asbestos disease; and another that

indicated that smoking contributed to the risk of developing

lung cancer, and that smokers who work with asbestos could

cut their risk of developing cancer by a significant amount if

they quit smoking. Buckley has a history of smoking about

a pack a day since he was seventeen. In 1991, Buckley cut

down to an average of one ci da ich i

tc garette a day, which is what he

Subsequent to learning about his exposure to and the

dangers of asbestos, Buckley contacted the law firm of

Cahill, Goetsch and DiPersia, which he retained to represent

him in this law suit. In 1990 and again in 1994, one of the

lawyers sent him to the Mount Sinai Occupational and

Environmental Health Clinic. There, he was examined by

Dr. Steven Markowitz, who gave expert testimony that as a

result of Buckley’s exposure to asbestos, he has a | to 3

percent increased risk of dying from asbestos-related cancer,

and a 10 percent increased risk of developing scarring of the

lining of the lungs. He further testified that it takes 20 to 40

years for clinical signs of asbestos disease to develop, and

that Buckley currently showed no physical signs of asbestos

exposure. He recommended that Buckley continue to be

medically monitored for future signs of asbestos-related

disease. Another professor from Mount Sinai, Dr. William

Nicholson, also examined Buckley and -testified that

Buckley’s risk of dying from cancer as a result of his

asbestos exposure has been increased by between | and 5

percent.

Buckley brought this law suit seeking the cost of his past

and future medical monitoring expenses and for negligently

inflicted emotional distress, consisting of loss of peace of

mind, anxiety, fear of the future, anger, worry and distress

due to his increased risk of dying from cancer.

Physical Impact

Taking all the facts plaintiff alleged as true, there is not

sufficient evidence to allow a jury to find that plaintiff has

had the requisite physical impact or fear of physical impact

to warrant a finding of negligent infliction of emotional

distress. On this question, there is no categorical authority.

Rather, there are a number of guideposts. The most recent

and authoritative of these is the Supreme Court’s July, 1994

opinion, Consolidated Rail Corporation v. Gottshall 114

S.Ct. 2396, in which the Court established that negligent

infliction of emotional distress is an action cognizable under

the Federal Employers’ Liability Act ("FELA"). In so

holding, however, the Court indicated its concern that

“recognition of a cause of action for negligent infliction of

emotional distress holds out the very real possibility of nearly

infinite and unpredictable liability for defendants." /d. at

2405.

To avoid such a result, the Court placed "substantial

limitations on the class of plaintiffs that may recover for

emotional injuries, and on the injuries that may be compensa-

ble." Jd. at 2405. The Court indicated that one such limita-

tion would be the common law "zone of danger” test:

Under this test, a worker within the zone of danger of

physical impact will be able to recover for emotional

injury caused by fear of physical injury to himself,

whereas a worker outside the zone will not. Railroad

employees thus will be able to recover for

injuries--physical and emotional--caused by negligent

conduct of their employers that threatens them immi-

nently with physical impact."

Id. at 2410.

The Second Circuit followed Gottshall in Marchica v.

Long Island Railroad Co. (2d. Cir. 1994) 31 F.3d 1197. In

that case, the court found that a railroad employee whose

finger had been penetrated by a needle and subsequently

suffered a fear of contracting the AIDS virus could recover

on a claim of negligent infliction of emotional distress. In so

holding, the court reasoned that plaintiff had met the

Gottshall "zone of danger" test because plaintiff had actually

suffered a physical injury: a hypodermic needle had penetrat-

ed his body. The court went on to note, however, that "had

Marchica merely touched the discarded needle and become

concerned about the possibility of developing AIDS, the case

would stand on a very different footing." Jd at 1204.

Clearly, the Second Circuit was mindful of the Supreme

Court’s concern of creating infinite liability for defendants.

Much of the opinion focuses on various means of assessing

the genuineness of a claim for negligent infliction of emo-

tional distress absent a physical injury. In such a case, where

no physical injury has occurred, the court suggested that

proof of exposure to a contaminated substance was a "substi-

tute means for providing a guarantee of the merits of a

plaintiff's claim." /d. at 1204. Only with such evidence of

exposure can plaintiff show that fear of developing a disease

related to the contaminated substance is reasonable. Relying

on other "fear-of-developing-disease" cases, the court adopts

the proposition that "the exposure requirement--plus actual

likelihood of developing the disease-- ... is a means of

ensuring the genuineness of the claim." Jd. at 1205. See

also Doner v. Admans Contracting Inc. (A.D. 3 Dep’t. 1994)

617 N.Y.S.2d 565, 566 ("Mental anxiety occasioned by the

fear of developing a disease is not considered reasonable

unless there is, at the very least, some evidence substantiating

both actual exposure to the disease-causing agent ... and a

likelihood of contracting the disease as a result").

The case at bar, like that envisioned by the Marchica

court, is “on very different footing." Here, there was no

physical injury analogous to being pricked by a hypodermic

needle. Therefore, we must consider the Second Circuit's

other means of assessing the genuineness of plaintiff's claim:

whether plaintiff can show proof of exposure to asbestos such

that there was a sufficient likelihood of contracting a disease

to make plaintiff's fear reasonable. On the present record, he

has made no such showing.

There is plenty of evidence in this case that plaintiff was

around asbestos, even touched by asbestos. But there is no

proof, assuming that he had occasionally inhaled asbestos,

that he inhaled inhaled enough to create a reasonable fear of

developing an asbestos-related disease.' Plaintiff's own

expert, Dr. Nicholson indicated that determining an

individual’s actual exposure to asbestos is "fraught with

difficulties because it depends upon individual sensitivity and

the uncertainties of the time course of the individual’s expo-

sure." (469-70). This is hardly evidence of actual exposure

and actual likelihood of developing a disease. Thus there is

no way for a jury to determine whether plaintiff's alleged

fear of developing the disease was reasonable.

The Supreme Court and the Second Circuit are unequiv-

ocal in holding that these tests to determine the genuineness

of plaintiff's claim must be met. In the case at bar, plaintiff

does not fall within the zone of danger as envisioned by the

' For the purposes of this case, “exposure” to asbestos should be

understood to mean "inhalation" of asbestos, for it is only inhalation that

leads to asbestos-related disease.

Supreme Court or the Second Circuit: he has not sustained a

physical injury; and he offered no evidence to establish that

he was sufficiently exposed to asbestos to create a reasonable

fear of developing an asbestos-related disease. Thus the

claim fails as a matter of law.

Emotional Injury

Even if plaintiff had been able to establish that he fell

within Gottshall’s zone of danger, he did not offer sufficient

evidence to allow a jury to find that he suffered a real emo-

tional injury.

On this question, no specific form of proof, such as

medical testimony, is required. However, the cases dealing

with the subject tell us is that there is need for some objec-

tive evidence, apart from the plaintiff's own testimony

concerning his or her own supposed agony. For example, in

Miner v. City of Glens Falls (2d. Cir. 1993) 999 F.2d 655,

plaintiff was a police officer who lost his job, allegedly

without due process. The court found that plaintiff could

recover on a claim for negligent infliction of emotional

distress because in addition to plaintiff's own testimony of

feeling inadequate, embarrassed, anxious and exasperated to

such a degree that he contemplated suicide, the court found

that

the anguish he described has some objective correlation

with events described by [plaintiff] and by his wife: loss

of their house, family tensions, certain potentially

demeaning aspects of a former police officer having to

seek benefits.

Id. at 663.

Plaintiff in the case at bar provides no analogous objective

evidence. Despite the emotional distress plaintiff claims, he

continued working in the Grand Central Terminal even

though it is undisputed that he could have transferred to any

one of several asbestos-free facilities where both he and his

father had previously worked. Moreover, even after being

warned by a doctor and viewing the videotape about smok-

ing, plaintiff continued to smoke cigarettes "whenever I feel

like having one." (773). The only objective fact to which

plaintiff testified was that he lost his temper more frequently

with his wife, but even that he conceded was related in part

to the instant law suit. Moreover, unlike the situation in

Miner, his wife gave no testimony in support of this claim.’

Dr. Markowitz, who examined plaintiff for almost two

hours and was trained in psychology, did not refer plaintiff

either to a psychologist or to a social worker. When asked

by the Court why he did not make such a referral, he

responded that "if [plaintiff] had displayed that level of

concern to me | might have considered [referring him to a

counselor]. I might have said, well, you ought to get some

counseling about this. But I didn’t see it." (549)°

Thus, because plaintiff has offered no objective evidence

by which a jury could determine that he had suffered a real

emotional injury, his claim for negligent infliction of emo-

tional distress must also be dismissed.

SO ORDERED.

New York, New York

March 13, 1995

2 Plaintiff testified that following the asbestos awareness class in late

1987, he had expressed his anger and concern over what had happened to

him by complaining to his Metro-North foremen, supervisors, superinten-

dents, and ultimately to the MTA Inspector General's Office. However,

as with the evidence concerning plaintiff's arguments with his wife, no

corroborative testimony was offered.

> this response was given to a question posed out of the presence of the

jury, but is nonetheless part of the record.

APPENDIX B-- DECISION OF THE UNITED

STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

DATED APRIL 1, 1996

UNITED STATES COURT OF APPEALS

For the Second Circuit

No. 608 -= August Term, 1995

(Argued: December 8, 1995 Decided: April 1, 1996)

Michael BUCKLEY,

Plaintiff-Appellant,

Vv.

METRO-NORTH COMMUTER RAILROAD,

Defendant-Appellee.

Before:

FEINBERG and OAKES,

Circuit Judges. '

' Honorable Guido Calabresi, C.J., heard oral

( , Ci, argument but later

disqualified himself and did not participate in the decision of this court.

10a

Appeal from the judgment as a matter of law granted by

the United States Court for the Southern District of New

York, Whitman Knapp, Senior Judge, in favor of Appellee on

Appellant’s claims for negligent infliction of emotional

distress and medical monitoring arising under the Federal

Employer’s Liability Act, 45 U.S.C. §§ 51 ef seq. ( 1994).

Vacated and remanded.

Charles C. Goetsch, New Haven, CT

(Cahill Goetsch & DiPersia, P.C., of counsel),

for Plaintiff-Appellant.

William G. Ballaine, New York, NY

(Mark S. Landman, Lisa S. Rabinowitz,

Ann Marie Collins, Siff Rosen P.C., of counsel),

for Defendant-Appellee.

OAKES, Senior Circuit Judge:

Michael Buckley ("Buckley") appeals from the judgment

as a matter of law granted by the United States District Court

for the Southern District of New York, Whitman Knapp,

Senior Judge, in favor of Metro-North Commuter Railroad

("Metro-North"). Buckley claims negligent infliction of emo-

tional distress and medical monitoring costs arising under the

Federal Employers’ Liability Act, 45 U.S.C. §§ 51 ef seq.

(1994) ("FELA"), for asbestos exposure Buckley suffered

while working as a Metro-North pipe fitter in Grand Central

Terminal. Buckley claims the district court erred in refusing

to submit his negligent infliction of emotional distress claim

to the jury and in failing to address his claim for medical

monitoring. For the reasons stated below, we vacate and re-

mand.

-< .

BACKGROUND

In reviewing the district court’s judgment as a matter of

law in favor of Metro-North, we consider the facts in the

light most favorable to Buckley, the non-moving party.

Purgess v. Sharrock, 33 F.3d 134, 140 (2d Cir.1994).

Buckley, who is 41 years old, has worked for various rail-

road companies in different capacities since the early 1970s.

In June 1985, he began to work for Metro-North as a pipe

fitter, repairing and maintaining the labyrinth of pipes in the

steam tunnels of Grand Central Terminal in New York City.

These pipes were covered with a white insulation material

that Buckley and the other pipe fitters needed to remove

before performing any repair or maintenance work. Buckley

would hammer, cut, and pull the insulation material, using

any tools on hand, in order to expose the pipe. The insula-

tion, a dry, dusty sort of material, would break apart as it was _

removed, scattering particles into the air--"just like taking

baby powder and shaking it," as Buckley said. Fans used to

make bearable the intense heat of the steam tunnels would

further spread dust from the pieces of insulation that accumu-

lated on the floors of the tunnels. During the work day, this

dust would cover Buckley’s skin and clothes and enter his

nose and mouth, so that he could taste the chalky insulation

material. Because Buckley and the other pipe fitters would

emerge from their daily duties in the tunnels covered head to

toe with white powder, they were dubbed the "snowmen of

Grand Central."

. The insulation material that Buckley was exposed to during

his work day for roughly three years was asbestos, widely

recognized as a carcinogen since the mid-1970s.

Metro-North admitted that it knew the insulation was

composed of asbestos and that asbestos can cause cancer. In

fact, Metro-North had been cited for asbestos-related viola-

tions in September 1986 following a fire in Grand Central

Terminal. Metro-North further admitted that, despite its

12a

knowledge of the problem, it did not warn Buckley that the

substance covering him when he emerged from the tunnels

was asbestos, nor did it train him regarding safe handling of

asbestos.

On August 31, 1987, nearly a year after the fire and the

asbestos citations, Metro-North finally required that pipe

fitters attend an asbestos awareness class. At this class,

Buckley learned of the asbestos in the pipe insulation. He

was told that asbestos is a substance that can cause painful,

debilitating, and often deadly disease such as asbestosis, lung

cancer, and mesothelioma, a cancer of the pleura that lines

the outside of the lungs. He viewed videotapes depicting

people suffering from these diseases. He received instruction

on asbestos removal by the "glove bag" method and was

given a half-face respirator. The respirator, however, was not

fit-tested. He was also shown a video that explained that

smoking increases one’s risk of lung cancer, and that smokers

exposed to asbestos can decrease their risk of lung cancer if

they quit smoking.

Buckley attempted to use the half-face respirator at work,

but it fit poorly and slid down his face as he perspired in the

intense heat of the steam tunnels. He also attempted to use

the glove bag method of removal, but the plastic bags used

to isolate the asbestos during the procedure would melt on

the hot pipes after the insulation was removed, spilling out

the asbestos that was supposed to be safely contained in the

bags. In 1991, Buckley, who had smoked heavily since he

was seventeen, cut down his smoking to an average of one

cigarette a day.

After learning of the asbestos in the insulation, the pipe

fitters wrangled with Metro-North over the issue of safety.

They also contacted the White Lung Association, an advo-

cacy group for victims of asbestos exposure, to inform

themselves about the hazards of asbestos. When their

complaints to Metro-North management went unresolved, the

13a

workers contacted the Office of the New York State Attorney

General, which investigated Metro-North in conjunction with

the Inspector General of the Metropolitan Transit Authority.

Because he “wanted Metro-North to be held accountable for

what they did," Buckley contacted a law firm to pursue a

case against Metro-North, as did as many as 140 other

asbestos-exposed workers. Buckley’s case was set up as a

"test case" for the claims of all of the workers.

Buckley's attorney referred him to the Mount Sinai

Occupational and Environmental Health Clinic for a medical

evaluation. He was examined by Dr. Steven Markowitz and

Dr. William Nicholson, who both testified as experts at trial.

The doctors noted that Buckley currently showed no signs of

asbestos-related diseases, but explained that the latency period

for these diseases is not less than ten years and commonly

ranges between 20-40 years. The doctors stated that Buckley

was exposed to extremely high levels of asbestos as a pipe

fitter for Metro-North, and agreed that, as a result of the

asbestos exposure, Buckley suffered an increased risk of

dying from an asbestos-related cancer. Dr. Markowitz

characterized the increased risk as "significant," and, when

pressed, quantified the increased risk as one to three percent.

Dr. Nicholson quantified the increased risk as one to five

percent, and stated that in his opinion there was a reasonable

scientific basis to fear that Buckley will develop an

asbestos-related cancer. Dr. Markowitz further noted that

Buckley suffers a ten percent higher risk of developing

— of the lining of the lungs due to on-the-job asbestos

xposure.

Dr. Markowitz pointed out that Buckley's exposure could

not be documented by x-ray until scarring developed, and a

biopsy of the lungs could not be conducted because live

tissue samples are not performed until disease has developed.

In Dr. Markowitz’s opinion, though, while working with the

dry, chalky insulation, Buckley inhaled a great deal of thin,

l4a

needle-like asbestos fibers that have lodged in Buckley's

lungs and could create grave health problems later in life.

He recommended that Buckley continue to be medically

monitored for future signs of asbestos-related diseases, noting

that early detection of some of these diseases, such as lung

cancer, could improve Buckley's prognosis.

Buckley testified that he is fearful of developing an

asbestos-related disease. He is angry at Metro-North and no

longer trusts his employer to provide a safe workplace. He

said that because of the asbestos exposure he worries about

his future, becomes upset when he sees media reports about

asbestos, and is overprotective of his young son. He has not,

however, undergone any psychiatric treatment for his fears.

As he stated, "[wJhat is a psychiatrist going to do for me?

What is he going to tell! me? I am not going to die? Is he

going to tell me not to worry about it?"

After denying Metro-North’s motion to dismiss, the district

court directed that the case proceed to trial. See Giammona

vy. Metro-North Commuter R.R., 750 F. Supp. 662 (S.D.N.Y.

1990). In 1994, Buckley became the test plaintiff for the

claims of all the exposed employees, and a jury trial com-

menced in February 1995. Because Metro-North conceded

negligence, only the issues of causation and damages were

placed before the jury. At the close of Buckley’s case, and

before Metro-North commenced its case, Metro-North filed

a motion for judgment as a matter of law pursuant to Federal

Rule of Civil Procedure 50(a). The court granted

Metro-North’s motion and dismissed the jury.

DISCUSSION

Buckley contends the district court erred when it entered

a judgment as a matter of law in favor of Metro-North at the

close of Buckley’s case. He asserts that his claim of negli-

gent infliction of emotional distress and his claim for medical

monitoring costs should have been submitted to the jury.

A district court may grant a judgment as a matter of law

pursuant to Federal Rule of Civil Procedure 50 only if no

reasonable jury could find for the non-moving party.

Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir.

1993). There must be “such a complete absence of evidence

supporting the verdict that the jury’s findings could only have

been the result of sheer surmise and conjecture." /d. (quoting

Mattivi v. South African Marine Corp., "Huguenot," 618 F.2d

163, 168 (2d Cir. 1980)). In examining a motion for

judgment as a matter of law, the court “must view the

evidence in a light most favorable to the nonmovant and

grant that party every reasonable inference that the jury might

have drawn in its favor." Purgess, 33 F.3d at 140.

In reviewing a judgment as a matter of law, we apply the

same standard as the district court. Jn re Joint Eastern &

Southern Dist. Asbestos Litigation, 52 F.3d 1124, 1131 (2d

Cir. 1995). Here, we must determine whether the district

court correctly concluded that no reasonable jury could have

found for Buckley on his claim of negligent infliction of

emotional distress under FELA.

Section 1 of FELA, 15 U.S.C. § 51 (1994), states:

Every common carrier by railroad while engaging in

commerce ... shall be liable in damages to any person

suffering injury while he is employed by such carrier in

such commerce ... for such injury ... resulting in whole

or in part from the negligence of any of the officers,

agents, or employees of such carrier. .. .

16a

Congress designed FELA as a “broad remedial statute” for

railroad workers injured on the job because of employer

negligence. Atchison, Topeka & Santa Fe Ry. Co. v. Buell,

480 U.S. 557, 561-62, 107 S.Ct. 1410, 1413-14, 94 L.Ed.2d

563 (1987). As the Supreme Court has noted, "[a] primary

purpose of the Act was to eliminate a number of traditional

defenses to tort liability and to facilitate recovery in meritori-

ous cases." Jd. at 561, 107 S.Ct. at 1413. However, "[o}nly

to the extent of these explicit statutory alterations is FELA

‘an avowed departure from the rules of the common law.’ "

Consolidated Rail Corp. v. Gottshall, __ U.S. __, 114

S.Ct. 2396, 2404, 129 L.Ed.2d 427 (1994) (quoting Sinkler

v. Missouri Pacific R.R. Co., 356 U.S. 326, 329, 78 S.Ct.

758, 762, 2 L.Ed.2d 799 (1958)). In other respects, the

common law retains "great weight" in any judicial consider-

ation. /d.

By the plain language of the statute, a "common carrier by

railroad” is liable if one of its employee is injured due to the

negligence of the common carrier. There is no dispute that

Metro-North, a carrier by rails engaged in interstate com-

Buckley’s claim of emotional harm suffered as a result of

Metro-North’s negligence is an injury compensable under

FELA.

I. Negligent Infliction of Emotional Distress

In Gottshall, the Court stated that "[bJecause FELA is

silent on the issue of negligent infliction of emotional dis-

tress, common-law principles must play a significant role in

[a court’s}] decision." /d. at 2404. The common law in

nearly every state, the Court found, allows plaintiffs to bring

claims for negligent infliction of emotional distress and

therefore such claims are cognizable under FELA. /d. at

2405.

17a

The Court recognized that because "(t]he incidence and

severity of emotional injuries are ... more difficult to predict

than those of typical physical injuries[,} ... negligent infliction

of emotional distress [claims] hold [ ] out the very real

possibility of nearly infinite and unpredictable liability for

defendants." /d. For this reason, the Court noted, the

common law has sought to limit recovery for negligent

infliction of emotional distress. Some jurisdictions allow

recovery only to those whose emotional distress stemmed

from a physical impact; others allow recovery to those who,

though suffering no physical impact, were within the zone of

danger; and still others allow recovery to those who, though

not within the zone of danger, witnessed the death or severe

injury of a relative. See id. at 2406-07.

The Court analyzed these common-law restrictions on

negligent infliction of emotional distress claims and adopted

the zone of danger test as a proper limitation on recovery,

balancing the concern for predictable liability with the broad

remedial nature of FELA. The Court found that a negligent

infliction of emotional distress claim may be brought by

those plaintiffs who sustain a physical impact as a result of

4 defendant's negligent conduct, or who are placed in

peep Aga of physical harm by that conduct." /d. at

Here, the district court found that Buckley did not fulfill

the test for negligent infliction of emotional distress actions

set forth in Gottshall because he did not suffer "sufficient

impact with asbestos" to sustain a claim and "failed to prove

that he had suffered a real emotional injury." We first

address the district court’s finding regarding physical impact

and then turn to its finding regarding Buckley’s emotional

A. Physical Impact

As we noted above, a plaintiff may state a claim for negli-

gent infliction of emotional distress only if the plaintiff

suffers a physical impact or the defendant’s conduct "threat-

ens [the plaintiff] imminently with physical impact"--the zone

of danger test. Gottshall at 2410.

We disagree with the district court’s finding that Buckley

did not suffer “sufficient impact with asbestos” to sustain a

claim for negligent infliction of emotional distress. We hold

that the district court erred in granting Metro-North a

judgment as a matter of law because, from the evidence

presented at trial, a reasonable jury could conclude that

Buckley suffered a physical impact with asbestos. '

There is ample evidence in the record that the asbestos

dust coated Buckley’s skin and clothes, entering his nose,

eyes, and mouth. Indeed, he could actually taste the chalky

insulation material. When viewed in the light most favorable

to Buckley, the evidence shows that he suffered a massive

exposure to asbestos.’ One need only visualize the image

evoked by the pipe fitters’ nickname--"the snowmen of Grand

' Buckley does not claim damages for increased risk of developing

disease. In order to recover for an increased risk of disease, as opposed

to negligent infliction of emotional distress based upon fear of disease, a

plaintiff must show a physical impact and a probability that the disease

will actually develop in the future. See Hagerty v. L & L Marine

Services, Inc., 788 F.2d 315, 319-20 (Sth Cir. 1986), modified, 797 F.2d

256 (Sth Cir. 1986). The evidence in this case would not support such

a claim, because Buckley cannot demonstrate a probability that he will

develop an asbestos-related disease.

> We do not believe that Buckley's claim should be defeated because he

cannot quantify the amount of asbestos to which he was exposed. The

reason no tests of asbestos levels were performed during the period of

exposure was that Metro-North did not wish to disclose the presence of

asbestos and therefore did not conduct any such tests.

19a

Central"--to understand the extent of Buckley’s exposure to

asbestos.

Furthermore, Buckley’s expert witnesses testified that

Buckley inhaled a large quantity of thin, needle-like asbestos

fibers due to the work conditions imposed by Metro-North.

When inhaled, asbestos fibers become imbedded in lung

tissue and, according to Buckley’s experts, cause subclinical

changes to occur. Eventually, after ten to forty years, deadly

and debilitating diseases may develop.

Metro-North argues that such exposure does not constitute

an impact unless clinical signs of asbestos-related disease

develop. Though both experts testified that Buckley’s lungs

had suffered subclinical changes, they admitted that Buckley

had yet to display any verifiable clinical signs of asbestos

exposure. However, the evidence Buckley presented showed

that the absence of clinically verifiable proof is not disposi-

tive. Given the strong evidence of massive exposure and the

expert testimony regarding the likelihood of inhalation and its

effect, we think a reasonable jury could find that Buckley

suffered a physical impact from large amounts of asbestos

fibers despite the lack of clinical proof of asbestos exposure.

We cannot find as a matter of law that Buckley’s injuries are

not genuine simply because they are subcellular. The effect

of asbestos in the lungs is a subtle, complex matter. It is for

the jury, assisted by expert testimony, to determine whether

Buckley has suffered present harm.

Our recent decision in Marchica v. Long Island R.R. Co.,

31 F.3d 1197 (2d Cir. 1994), cert. denied, — |

S.Ct. 727, 130 L.Ed.2d 631 (1995), supports our conclusion

that a reasonable jury could find that Buckley sustained a

physical impact from his exposure to asbestos. In Marchica,

we found that a railroad worker suffered a physical impact

sufficient to recover for fear of contracting the AIDS virus

when a discarded hypodermic needle stabbed the worker’s

hand while he was cleaning up an area of a railroad station

20a

notorious as a haven for drug users. /d at 1206. We held

that, even though it was never determined that the AIDS

virus was present in the needle, such an injury "would cause

a reasonable person to develop a fear of AIDS." /d. We

noted that "[hJad Marchica merely touched the discarded

needle and become concerned about the possibility of

developing AIDS, the case would stand on a very different

footing." Jd. at 1204. The distinction between a stab wound

and a touch rests upon the method by which the AIDS virus

is transmitted. The AIDS virus cannot be contracted simply

by touching: penetration and contact with body fluid is

required. A fear of developing AIDS absent such contact

would be unreasonable.

Similarly, the fear of developing an asbestos-related

disease from an incidental contact with asbestos would be

unreasonable. Asbestos, as the evidence at trial showed,

exists in small quantities in the air we breathe each day and

such low-level contacts do not in any way affect the vast

majority of people. Buckley, however, does not claim that

his fear arises from normal contact with asbestos in the

ambient air. Rather, as Buckley’s counsel explained,

Buckley’s fear stems from "exposure to hazardous amounts

of asbestos for an average of one hour per day while actu-

al{ly] removal[ing], handling and working [with] asbestos

insulation ... during the period from June of 1985 to June of

1988." Buckley offered evidence that such an exposure

causes a measurable increase in the possibility of his devel-

oping asbestos-related disease. Just like the needle puncture

in Marchica, Buckley’s three years of daily contact with the

cancer-causing substance--contact that from time to time left

him covered from head to toe in asbestos dust--constitutes a

physical impact that would lead a reasonable person to fear

asbestos-related cancer.

For this reason, we reject the FELA cases finding that

asbestos fiber inhalation cannot constitute an injury. See

2la

Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 942 (3d

Cir.), cert. denied, 474 U.S. 864, 106 S.Ct. 183, 88 L.Ed.2d

152 (1985); Amendola v. Kansas City So. Ry. Co., 699 F.

Supp. 1401, 1403 n. 3, 1410-11 (W.D. Mo. 1988). While

these cases express a concern over speculative or frivolous

lawsuits, the Marchica case makes clear that the relevant

inquiry is whether the impact would cause fear in a reason-

able person. To make this determination, a jury must take

into account the nature of the toxic substance, its method of

transmission into the body, the extent of the exposure to the

substance and how the disease develops in response to the

presence of the toxic substance in the body. Given the

evidence of Buckley's prolonged and pronounced exposure to

asbestos, a jury may find that he suffered an impact that

would cause fear in a reasonable person.

Metro-North urges us to follow those common law

fear-of-disease cases holding that exposure to a carcinogen is

not in and of itself enough to constitute a physical impact.

It is true that many cases hold that a fear-of-disease plaintiff

must prove both actual exposure to a disease and a reasonable

medical probability of later developing a disease. See

Marchica, 31 F.3d at 1204 and cases cited therein; Doner v.

Ed Adams Contracting Inc., 208 A.D.2d 1072, 1072-73, 617

N.Y.S.2d 565, 566 (3d Dept. 1994) (though plaintiff could

prove actual exposure to asbestos, plaintiff failed to show he

was likely to contract a disease and thus could not prevail on

We exposure a present physical injury, that a

future disease will likely develop, wGinteenaions injury

has manifested itself physically. See Marchica, 31 F.3d at

1204 and cases cited therein; Jn re Hawaii Federal Asbestos

Cases, 734 F. Supp. 1563, 1569-70 (D. Haw. 1990) (fear of

asbestos disease not rational unless plaintiff experiences func-

tional impairment); Burns v. Jaquays Mining Corp., 156 Ariz.

375, 378, 752 P.2d 28, 31 (Ct. App. 1987) (no cause of

22a

action for fear of disease absent bodily injury); Eagle-Picher

Industries, Inc. v. Cox, 481 So.2d 517, 527-28 (Fla. Dist. Ct.

App. 1985) (same). ;

As we noted in Marchica, however, such cases are inap-

posite when, as here, a plaintiff's emotional distress results

from an actual physical impact or injury. See Marchica, 31

F.3d at 1204.2 Furthermore, many courts have found that

under certain circumstances exposure to asbestos or other

disease- causing agents may constitute an impact sufficient to

sustain a claim for fear of disease. See, e.g., "lagerty, 788

F.2d at 318 n. 1 (seaman soaked with tox > chemicals

suffered a "physical injury from the drenching which consti-

tutes an impact"); Wetherill v. University of Chicago, 565 F.

Supp. 1553, 1560 (N.D. Ill. 1983) (prenatal exposure to DES

is a physical impact); Lavelle v. Owens-Corning Fiberglas

Corp., 30 Ohio Misc. 2d 11, 14, 507 N.E.2d 476, 480 (Com.

P|. 1987) (exposure to asbestos while working with insulation

is a physical contact sufficient to allow fear of cancer claim

to proceed). We choose to follow these cases and hold that

a reasonable jury could find that Buckley suffered a physical

impact.

We decline to narrow our view of physical impact in order

to avoid the flood of litigation that Metro-North claims we

will unleash by this decision. First, "a more flexible view" of

physical impact is "most consistent with FELA’s remedial

nature." Marchica, 31 F.3d at 1206. Second, only a narrow

class of plaintiffs may sue under FELA, see Gottshall, 114 S.

Ct. at 2412 (Ginsburg, J., dissenting), and FELA protects this

group of plaintiffs from the negligent acts of employers to a

greater extent than the plaintiffs would be protected at

common law. Third, even within the narrow class of FELA

> The terms “impact” and “injury” were used interchangeably by the

Marchica court to describe the needle prick suffered by Marchica.

23a

plaintiffs, Buckley and the other "snowmen" present what we

believe is an unusual case, as Buckley’s exposure to asbestos

was massive, lengthy, and tangible. Finally, Metro-North has

admitted that it negligently allowed the pipe fitters to perform

their duties without any knowledge on their part of the

presence of asbestos or any training in its proper handling.

We do not believe that the magnitude of Metro-North’s

wrong should limit the damages awarded against it. Thus,

taking all inferences in favor of Buckley, we find that a jury,

presented with the evidence in this case, may find that

Buckley suffered an impact that would cause fear in a

reasonable person.

B. Emotional Injury

Even if a plaintiff suffers a physical impact that would

cause fear in a reasonable person, the plaintiff will not be

permitted to recover unless he or she actually suffers an emo-

tional injury as a result of the physical impact. The district

court held that no reasonable jury would find that Buckley

suffered emotional distress. Because the district court

believed that Buckley offered no corroborating evidence of

his emotional distress, and because Buckley continued to

smoke cigarettes after learning that smoking increases the risk

to those exposed to asbestos, the court held that Buckley’s

claimed emotional distress was not serious enough to be

compensable.

Though a plaintiff need not present medical proof of eme

tional distress, some objective proof apart from plaintiff -

testimony must be offered in order for a jury to determine

that the plaintiff suffered real emotional injury. Miner v. City

of Glens Falls, 999 F.2d 655, 663 (2d Cir.1993). We

disagree with the district court that there is a complete lack

of objective proof in this case. Buckley testified that because

of his fear and anger, he complained first to his supervisors

and then to the Metropolitan Transit Authority Inspector

General ("I.G.") about the asbestos in the tunnels. The

24a

district court said Buckley failed to corroborate these com-

plaints, but one worker who testified, Gregory Peck, stated

that "we went to the I1.G." when asked on cross-examination

how he found out that “everything that [Metro-North] did

was wrong." In addition, the joint report issued by the 1.G.

and the New York State Attorney General’s Office, admitted

into evidence, detailed the workers’ complaints to supervisors

and investigative bodies. This evidence, though slim, may

provide substantiation of Buckley’s claim.

Metro-North urges that regardless of whether Buckley

provided any objective proof of emotional distress, he has not

suffered emotional injury severe enough to sustain his claim.

To permit an award for emotional distress arising out of a

fear of cancer, a plaintiff must "introduce evidence of his

particular fears with some specificity" and "as a threshold

matter, present evidence of his particular fear of developing

cancerous conditions." Smith v. A.C. & S., Ine., 843 F.2d

854, 858-59 (Sth Cir. 1988). Buckley’s testimony about his

anger and fear of dying satisfies this burden. It appears from

our review of case law that emotional distress must be

"severe" only when a plaintiff has not suffered a physical

impact. In such a case, the severity of the emotional distress

serves to guarantee the genuineness of the claim. See Lacy

v. Cooper Hosp./Univ. Med. Ctr., 745 F. Supp. 1029,

1035-36 (D.N.J. 1990); Lavelle, 30 Ohio Misc.2d at 14-15,

507 N.E.2d at 480-81; Restatement (Second) of Torts §

436A (1965); compare Restatement (Second) § 46 (to prove

intentional infliction of emotional distress, plaintiff's emo-

tional distress must be "so severe that no reasonable [person]

could be expected to endure it"). Here, as we discussed

above, a reasonable jury could find that Buckley has suffered

a physical impact. Buckley is therefore entitled to all

damages flowing from the impact, including his reasonable

emotional distress, so long as the jury finds based upon

25a

Buckley’s testimony and objective evidence that Buckley

actually suffers from the fear and anger he claims.

We realize that the evidence of Buckley’s emotional

distress is not overwhelming. He does not suffer the sort of

severe distress claimed by the plaintiff in Marchica, 31 F.3d

at 1201, and there is not an abundance of evidence corrobo-

rating his claims. However, we do not believe that a jury

need rely only upon "sheer surmise and conjecture," Samuels,

992 F.2d at 14, in order to find Buckley suffered emotional

distress. Therefore, we find that the district court erred in

granting Metro-North a judgment as a matter of law on

Buckley’s negligent infliction of emotional distress claim.

II. Medical Monitoring Costs

As a separate claim, Buckley seeks to recover for the cost

of future medical monitoring. The district court failed to

address this claim at all in its judgment as a matter of law in

favor of Metro-North. We find that medical monitoring costs

are a reasonable basis for an award of damages in this case.

We believe that the evidence presented by Buckley could

convince a reasonable jury to grant medical monitoring

damages.

Dr. Markowitz testified that because of Buckley’s exposure

to asbestos, he is at an increased risk of developing an

asbestos-related disease which will peak between the ages of

fifty and sixty-five. Dr. Markowitz stated that because of

this risk, Buckley should be provided with present and future

medical monitoring in order to detect and treat the diseases

as they may arise, including an annual medical exam with

pulmonary function tests and chest x- rays. Beginning at age

45, Buckley should also undergo a sigmoidoscopy and stool

tests every other year. Dr. Markowitz estimated the annual-

ized cost of these tests at $950.00.

It is hornbook law that a plaintiff may recover reasonable

past and future medical expenses incurred as a result of an

26a

injury. See Charles T. McCormick, Handbook on the Law of

Damages § 90 (1935). We believe that Buckley should be

compensated for such medical monitoring as is reasonably

necessary according to contemporary medical principles

applied by physicians experienced in the diagnosis and

treatment of asbestos diseases. We agree with a number of

other courts that such costs are

a compensable item of damages where the proofs

demonstrate, through reliable expert testimony predi-

cated upon the significance and extent of exposure ...

the toxicity of [asbestos], the seriousness of the diseases

for which individuals are at risk, the relative increase in

the chance of onset of disease in those exposed, and the

value of early diagnosis, ... surveillance to monitor the

effect of exposure to toxic chemicals is reasonable and

necessary

Ayers v. Township of Jackson, 106 N.J. 557, 606, 525 A.2d

287, 312 (1987). We find that Buckley may recover such

costs despite the fact that he has yet to suffer an

asbestos-related disease. As one court has noted, “the

appropriate inquiry is not whether it is reasonably probable

that plaintiffs will suffer harm in the future, but rather

whether medical monitoring is ... necessary in order to

diagnose properly the warning signs of disease." /n re Paoli

R.R. Yard PCB Litigation (Paoli I), 916 F.2d 829, 851 (3d

Cir. 1990), cert. denied, 499 U.S. 961, 111 S.Ct. 1584, 113

L.Ed.2d 649 (1991). See also Gibbs v. El. DuPont de

Nemours & Co., Inc., 876 F. Supp. 475, 478 (W.D.N.Y.

1995) (citing Paoli ] with approval); Gerardi v. Nuclear

Utility Services, Inc., 149 Misc.2d 657, 659, 566 N.Y.S.2d

1002, 1004 (Sup. Ct. 1991) (defendant liable for medical

monitoring expenses incurred by plaintiff due to "invasion of

the body by toxic substances through negligent exposure”);

Askey v. Occidental Chemical Corp., 102 A.D.2d 130, 137,

477 N.Y.S.2d 242, 247 (4th Dept. 1984) (medical monitoring

27a

cost recoverable if plaintiff can establish to a reasonable

degree of medical certainty that costs are “reasonably

anticipated"); Potter v. Firestone Tire & Rubber Co., 6

Cal.4th 965, 1006-07, 25 Cal. Rptr.2d 550, 863 P.2d 795,

822-23 (1993) (even in the absence of physical injury,

reasonably certain medical monitoring costs may be recov-

ered). Given the expert testimony in this case regarding

reasonable j ner Preah a ae

jury award i itori

Buckley medical monitoring

Any award should be limited to costs incurred as a direct

of his theooee Fendi WwW ey eee

o . We with the Third Circui

reve s= erone agree Third Circuit

prove that by reason of the exposure to the toxic

substance caused by the defendant’s negligence, a

reasonable physician would prescribe for her or him a

monitoring regime different than the one that would

have been prescribed in the absence of that particular

exposure. This is because under this cause of action, a

plaintiff may recover only if the defendant’s wrongful

acts increased the plaintiff's incremental risk of in-

curring the harm produced by the toxic substance

enough to warrant a change in the medical monitoring

that otherwise would be prescribed for that plaintiff.

In re Paoli R.R. Yard PCB Litigation (Paoli Il), 35 F.3d 7

3d 717,

788 (3d Cir. 1994) (quoting Hansen v. CC] Mech., 858 P.2d

970, 980 (Utah 1993) (citations omitted)), cert denied,

U.S. ___, 115 S.Ct. 1253, 131 L.Ed.2d 134 (1995). There-

fore, a jury may only award to Buckley damages for that

medical monitoring which is necessary because iS expo-

sure to asbestos. oT

Competent expert testimony in this case established both

that Buckley suffered a substantial impact from asbestos that

28a

has significantly increased his risk of contracting an

asbestos-related disease and that Buckley should receive

medical monitoring in order to ensure early detection and

cure of any asbestos-related disease he develops. The costs

of such tests are a traditional element of tort damages, and a

reasonable jury may award them to Buckley in this case.

CONCLUSION

For the reasons stated above, we vacate the judgment as a

matter of law entered in favor of Metro-North and remand

this case to the district court for a jury trial.

29a

APPENDIX C- DECISION OF THE UNITED

STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

DATED JULY 10, 1996

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HCUSE

40 FOLEY SQUARE

NEW YORK 10007

GEORGE LANGE III

CLERK

At a stated term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 10 day of

July one thousand nine hundred and ninety-six.

Buckley

Plaintiff-Appellant

Vv Dkt No. 95-7399

Metro-North Commuter

Defendant- Appellee

A petition for rehearing containing a suggestion that the

action be reheard/ in banc having been filed herein by the

appellee Metro-North Commuter Railroad Company's.

Upon consideration by the panel that decided the appeal,

it is Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in banc

has been transmitted to the judges for the court in regular

30a

active service and to any other judge that heard the appeal

and that no such judge has requested that a vote be taken

thereon.

FOR THE COURT

GEORGE LANGE III, Clerk

3la

APPENDIX D-~- RELEVANT STATUTES

UNITED STATES CODE

TITLE 45 -- RAILROADS

CHAPTER 2--LIABILITY FOR INJURIES

TO EMPLOYEES

§ 51. Liability of common carriers by railroad, in

interstate or foreign commerce, for injuries of

employees from negligence; employee defined

Every common carrier by railroad while engaging in com-

merce between any of the several States or Territiories, or be-

tween any of the States and Territories, or between the Dis-

trict of Columbia and any of the States or Territories, or be-

tween the District of Columbia or any of the States or

Territories and any foreign nation or nations, shall be liable

in damages to any person suffering injury while he is em-

ployed by such carrier in such commerce, or, in case of the

death of such employee, to his or her personal representative,

for the benefit of the surviving widow or husband and chil-

dren of such employee; and, if none, then of such employee's

parents; and, if none, then of the next of kin dependent upon

such employee, for such injury or death resulting in whole or

in part from the negligence of any of the officers, agents, or

employees of such carrier, or by reason of any defect or

insufficiency, due to its negligence, in its cars, engimes, appli-

ances, machinery, track, roadbed, works, boats, wharves, or

other equipment.

Any employee of a carrier, any part of whose duties as

such employee shail be the furtherance of interstate or foreign

commence, or shall, in any way directly or closely and sub-

stantially, affect such commerce as above set forth shall, for

32a

the purposes of this chapter, be considered as being employed

by such carrier in such commerce and shall be considered as

entitled to the benefits of this chapter.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.