Amicus Curiae Brief — Metro-North Commuter R. Co. v. Buckley

In The

Supreme Court of the United 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

+

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE AND BRIEF AMICUS CURIAE OF

CONSOLIDATED RAIL CORPORATION

IN SUPPORT OF PETITIONER

°

RavpH G. WELLINGTON*

Nancy WINKELMAN

Attorneys for Amicus Curiae

Consolidated Rail Corporation

"Counsel of Record

SCHNADER HARRISON SEGAL & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA 19103

(215) 751-2000

Bruce B. Wirson

Lucy S.L. AMERMAN

THomas J. WAMSER

EtteN M. Goerinc

Consolidated Rail Corporation

2001 Market Street

Philadelphia, PA 19103

Of Counsel.

a

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE OF CONSOLIDATED

RAIL CORPORATION IN SUPPORT OF PETITIONER

Pursuant to Rule 37.2 of the rules of this Court,

Consolidated Rail Corporation respectfully moves this

Court for leave to file the attached brief amicus curiae in

support of the petitioner. The petitioner has consented to

the filing of this brief; however, the respondent has

refused to provide consent.

Consolidated Rail Corporation (“Conrail”) is a pri-

vately-held corporation that is owned by Conrail, Inc., its

publicly-held parent corporation.

Prior to this Court’s decision in Consolidated Rail

Corp. v. Gottshall, 114 S. Ct. 2396 (1994), Conrail, like other

United States railroads, had been subject to a prolifera-

tion of claims for negligent infliction of emotional dis-

tress under the Federal Employers’ Liability Act

(“FELA”), and had become increasingly concerned with

the disparate treatment that these claims received in the

courts. The potential for almost unlimited liability

increased dramatically with the decisions of the Court of

Appeals for the Third Circuit in Gottshall v. Consolidated

Rail Corp., 988 F.2d 355 (3d Cir. 1993), and Carlisle v.

Consolidated Rail Corp., 990 F.2d 90 (3d Cir. 1993).

The Third Circuit’s decisions in Gottshall and Carlisle,

like the decision of the Court of Appeals for the Second

Circuit in Buckley v. Metro-North Commuter Ry. Co., 79 F.3d

1337 (2d Cir. 1996), expanded liability for emotional dis-

tress damages under the FELA to an unprecedented

degree and made virtually any emotional distress claim

cognizable. The Third Circuit’s decisions also illustrated

the deep and irreconcilable conflicts among the circuits

with respect to recovery for negligent infliction of emo-

tional distress under the FELA.

This Court granted Conrail’s petition for a writ of

certiorari in Gottshall and Carlisle and reversed. Consis-

tent with the FELA’s purpose to protect railroad workers

from the physical dangers of railroading and consistent

with the admonitions of this Court that the FELA should

follow the common law, in Gottshall the Court established

a clear, bright line test for the recovery of damages for

negligent infliction of emotional distress under the FELA

— the common law zone of danger test. The Second Cir-

cuit’s decision in Buckley represents a profound misap-

plication of the Gottshall zone of danger test, one that will

have enormous consequences for the railroad industry.

In view of its great familiarity with the issue, its

belief that the Buckley decision is in utter and irreconcil-

able conflict with Gottshall, its abiding concern that the

zone of danger test be correctly applied in the lower

courts, and its personal experience with the enormous

costs of litigating non-meritorious emotional distress

claims, Conrail respectfully requests that it be allowed to

participate in this case and to file the attached brief

amicus curiae in support of petitioner.

Raven G. WELLINGTON*

Nancy WINKELMAN

Attorneys for Amicus Curiae

Consolidated Rail Corporation

"Counsel of Record

SCHNADER HARRISON Seca & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA 19103

(215) 751-2000

Bruce B. WiLson

Lucy S.L. AMERMAN

THomas J. WAMSER

E.ten M. Goerinc

Consolidated Rail Corporation

2001 Market Street

Philadelphia, PA 19103

Of Counsel.

Dated: September 27, 1996.

TABLE OF CONTENTS

Page

Pee Gee GORI So 6 cb codec cccestccdesecee ii

STATEMENT OF INTEREST OF AMICUS CURIAE.. 1

SUMMARY OF ARGUMENT..................-+05- 1

FRE cn hadcoccvvcbnercsdtedséccevecetececce 2

I. THE SECOND CIRCUIT’S DECISION CON-

FLICTS WITH THIS COURT’S DECISION IN

GOTTSHALL BECAUSE BUCKLEY’S OCCU-

PATIONAL EXPOSURE CLAIM DOES NOT

SATISFY THE GOTTSHALL ZONE OF DAN-

Il. THE SECOND CIRCUIT’S DECISION CON-

FLICTS WITH THIS COURT’S DECISION IN

GOTTSHALL BECAUSE THE SECOND CIR-

EMOTIONAL DISTRESS BASED ON OCCU-

PATIONAL EXPOSURE IN THE ABSENCE OF

PHYSICAL INJURY OR THE LIKELIHOOD

THAT THE PLAINTIFF WILL DEVELOP A

SRE v0 BSc ce cc cicccesaccveeneccesssoccces 7

TABLE OF AUTHORITIES

Page

Cases

Adams v. Johns-Manville Sales Corp., 783 F.2d 589

Gee Ge Fee 00 0k cnn cescccccsascccnnenesovcesens 10

Ball v. Joy Techs., Inc., 958 F.2d 36 (4th Cir.), cert.

denied, 502 U.S. 1033 (1992)..... 2... 0c ccc ceeeceees 10

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

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

GU Ge Bs oc wn ckbtecdvewcccidethotdsecovcede. 11

Buckley v. Metro-North Commuter Ry. Co., 79 F.3d

BEY Gee CER GED cc cccccccevcsccconcduapiedts passim

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

Ct. App. 1987), review dismissed, 781 P.2d 1373

CASTE, TEE 00 opc0c cenencces spe yudne sedadede ys aces 11

Consolidated Rail Corp. v. Gottshall, 114 S. Ct. 2396

(ROPER o ccc ccvesccvcoccnseccsscccscccecoescence passim

Deleski v. Raymark Indus., Inc., 819 F.2d 377 (3d Cir.

GRIPS 6c vceccivicds deuce cdecccedecevecsesedbotesese 10

Dobelle v. National Ry. Passenger Corp., 628 F. Supp.

SD GAs BOD cb vccencccsescccesocsucsscosces 8

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

565 (N.Y. App. Div. 1994). ...........ccceeeeeeeees 11

Garcia v. Burlington Northern Ry. Co., 904 P.2d 1085

(Or. Ct. App. 1995)........ccccccccccvccccceseveces 5

Gottshall v. Consolidated Rail Corp., 56 F.3d 530 (3d Cir.

1995), on remand from 114 S. Ct. 2396 (1994).......... 6

Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315

Gee Ge Fee cevcccveccccvescesecvssvedspeeseces 12

In re Hawaii Fed. Asbestos Cases, 734 F. Supp. 1563

GA BR, Bee cece ccccccccéconcsesvénsacestecscsé 10

iii

TABLE OF AUTHORITIES - Continued

Page

Jansen v. Children’s Hosp. Medical Ctr., 31 Cal. App.

Be GPM Nee bebe cesicesncbensdescccendenccsonons 9

Keck v. Jackson, 593 P.2d 668 (Ariz. 1979)............. 8

Kutner v. Eastern Airlines, Inc., 514 F. Supp. 553

GE DOr MU ni desecnccccnsesusbovsesecccccescees 9

Lavelle v. Owens-Corning Fiberglas Corp., 507

N.E.2d 476 (C.P. Cayahoga Cty. 1987)............. 12

Lewis v. Westinghouse Elec. Corp., 487 N.E.2d 1071

Ge. Ra. GC. BIRD bs cccicveccscctessccccescccsccce 9

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

Fe cc cdbbidos cictaedadcsvesveccvccrssevescoctos 11

McMillan v. National Ry. Passenger Corp., 648 A.2d

GD GI, Wi vive ccscccsccccccscccsccsecsccccccce 5

wa ae v. Asbestos Corp., 480 A.2d 647 (Del.

BR ee bc evcdcnci sere secvodccesstevcccesosesccoss 11

Mitchell v. Hadl, 816 S.W.2d 183 (Ky. 1991)........... 8

Niederman v. Brodsky, 261 A.2d 84 (Pa. 1970) ......... 8

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

1983), aff'd, 480 A.2d 647 (Del. 1984).............. 10

OB-GYN Assocs. v. Littleton, 386 S.E.2d 146 (Ga.

GR 6 6 660 dv Sbs ccdecdesdstecesececdvecs fee dieecccce 8

Outten v. National Ry. Passenger Corp., 928 F.2d 74

Ge GEE BUND Sovecccetepcceneccccesconcevesscccees 5

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

Tc vcccccbncsccvccbecnccesesovscovesssesesveccce 9

Poole v. Al tic Corp., 698 F. Supp. 1367

iv

TABLE OF AUTHORITIES - Continued

Page

Redland Soccer Club, Inc. v. Department of the Army,

55 F.3d 827 (3d Cir. 1995), cert. denied, 116 S. Ct.

FU Cnn 5500b0bsedeaetenessnsseseesabenbiacere 11

Schweitzer v. Consolidated Rail Corp., 758 F.2d 936

(3d Cir.), cert. denied, 474 U.S. 864 (1985)........... 4

Simmons v. Pacor, Inc., 674 A.2d 232 (Pa. 1996)....... 5

Towns v. Anderson, 579 P.2d 1163 (Colo. 1978) ........ 8

Urie v. Thompson, 337 U.S. 163 (1949). .........660000- 4

Wetherill v. University of Chicago, 565 F. Supp. 1553

GRR Ge Mec ccacvekcashcdeendsstebeadeonccesve 12

Williams v. Baker, 572 A.2d 1062 (D.C. 1990).......... 8

Wisniewski v. Johns-Manville Corp., 759 F.2d 271 (3d

COR BD 0h dn eenscccncentecdescsaud beidecasns tas 10

STATEMENT OF INTEREST OF AMICUS CURIAE

The interest of amicus curiae Consolidated Rail Corpo-

ration is set forth in the motion accompanying this brief.

SUMMARY OF ARGUMENT

As established by this Court in Gottshall, the zone of

danger test compensates railroad workers whose emo-

tional distress stems from their fear of imminent physical

injury from an accident or some other immediate physical

impact, and denies recovery for emotional distress that

arises from a more generalized, less immediate fear. The

zone of danger test has proven to be fair, workable, and

easy for the lower courts to apply. The Second Circuit's

decision in Buckley is in fundamental conflict with Gott-

shall because it permits recovery for emotional distress in

the absence of any physical injury, any risk of imminent

physical injury, or any fear of imminent physical injury.

The Second Circuit’s decision in Buckley eviscerates

the bright line rule established by this Court in Gottshall,

expands the zone of danger test far beyond its common

law roots, permits recovery for a broad range and vast

numbers of claims that would not be cognizable under

the common law, and, in so doing, returns the FELA to its

pre-Gottshall state, in which there existed no clear

guidelines for the lower courts in their consideration of

FELA negligent infliction of emotional distress claims.'

ARGUMENT

I. THE SECOND CIRCUIT’S DECISION CONFLICTS

WITH THIS COURT’S DECISION IN GOTTSHALL

BECAUSE BUCKLEY’S OCCUPATIONAL EXPO-

SURE CLAIM DOES NOT SATISFY THE GOTT-

SHALL ZONE OF DANGER TEST.

In Gottshall, this Court adopted the bright line zone

of danger of physical impact test for negligent infliction

of emotional distress claims under the FELA. The Court

described the test as follows:

[A] worker within the zone of danger of physi-

cal impact will be able to recover for emotional

injury caused by fear of physical injury to him-

self, whereas a worker outside the zone will not.

Railroad employees thus will be able to recover

for injuries - physical and emotional - caused

by the negligent conduct of their employers that

threatens them imminently with physical

impact. This rule will further Congress’ goal in

enacting [FELA] of alleviating the physical dan-

gers of railroading.

Consolidated Rail Corp. v. Gottshall, 114 S. Ct. 2396, 2410-11

(1994). Quoting one of the leading law review articles

advocating the zone of danger test for negligent infliction

' For a comprehensive analysis of the far-reaching

implications of the Second Circuit's decision in Buckley on the

railroad industry, see the amicus curiae brief of the Association of

American Railroads filed in support of petitioner.

of emotional distress claims, the Court explained that

“ “those within the zone of danger of physical impact can

recover for fright, and those outside of it cannot.’ ” Id. at

2406 (quoting Richard N. Pearson, Liability to Bystanders

for Negligently Inflicted Emotional Harm — A Comment on the

Nature of Arbitrary Rules, 34 U. Fra. L. Rev. 477, 489

(1982)).

In addition, this Court stressed in Gottshall that the

bright line zone of danger of physical impact test was

necessary because, unlike claims for physical injuries that

present objective, identifiable harms, without clear prin-

ciples defining when a claim is cognizable, emotional

distress claims present “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 unlim-

ited and unpredictable liability.” Id. at 2411. As the Court

explained: “ ‘The geographic risk of physical impact

caused by the defendant’s negligence in most cases is

quite limited, which accordingly limits the number of

people subjected to that risk. There is no similar finite

range of risk for emotional harm.’ ” Id. at 2405 n.4 (quot-

ing Pearson, supra, 34 U. Fra. L. Rev. at 507).

Significantly, in adopting the zone of danger of phys-

ical impact test, the Court made clear that emotional

distress claims arising from general working conditions

are not cognizable under the FELA. In the Court's view,

permitting a cause of action for an employee’s emotional

reaction to his or her working conditions “would tend to

make railroads the insurers of the emotional well-being

and mental health of their employees.” Id. at 2409.

Buckley’s claim does not satisfy the clear lines for

recovery for negligent infliction of emotional distress

under the FELA as established by this Court in Gottshall.

It is undisputed that Buckley neither experienced a physi-

cal injury nor feared imminent physical injury from an

impact. Buckley never asserted that he experienced a

physical injury. In any event, under this Court’s decision

in Urie v. Thompson, 337 U.S. 163 (1949), occupational

diseases, such as silicosis or asbestosis, give rise to com-

pensable injuries under the FELA only if and when

adverse physical effects of the disease are manifested. See

also Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 942

(3d Cir.) (exposure to asbestos, without asbestos-related

physical injury, does not constitute basis for recovery

under FELA), cert. denied, 474 U.S. 864 (1985). Buckley did

not fear imminent physical injury because his risk of

developing disease certainly was not imminent, and, in

any case, was minimal.

The Second Circuit held, however, that Buckley expe-

rienced a “physical impact” sufficient to satisfy the zone

of danger test. The Court identified that “physical

impact” as Buckley’s exposure to asbestos. See Buckley v.

Metro-North Commuter Ry. Co., 79 F.3d 1337, 1343 (2d Cir.

1996). Yet, as the Court acknowledged, and as Buckley’s

own doctors testified, that “impact” did not result in any

physical injury or in any clinical manifestation of asbestos

exposure, and gave rise to at most a minimal increased

risk that Buckley would develop an asbestos-related ill-

ness. See id. at 1343-44 (“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”). Accordingly, the most that

can be said about the “physical impact” that the Second

Circuit used to justify Buckley’s recovery for emotional

distress is that it consisted of an environmental condition

that did not manifest itself in physical injury, that did not

place Buckley at risk of imminent physical injury, and

that did not cause him to fear imminent physical injury.

Exposure to environmental conditions, such as sub-

stances in the air, does not satisfy the zone of danger test

because it involves neither a “physical impact” nor an

“imm iiate risk of physical harm.” Gottshall, 114 S. Ct. at

2406; see Garcia v. Burlington Northern Ry. Co., 904 P.2d

1085, 1087 (Or. Ct. App. 1995) (under Gottshall, zone of

danger “is a location in which the plaintiff is ‘at immedi-

ate risk of physical harm’ ”) (citations omitted); McMillan

v. National Ry. Passenger Corp., 648 A.2d 428, 434 (D.C.

1994) (plaintiff not in zone of danger when near worker

who had punched other workers because “threat of

injury” to plaintiff “was not immediate” but was “both

speculative and remote”); see also Outten v. National Ry.

Passenger Corp., 928 F.2d 74, 78-79 (3d Cir. 1991) (railroad

worker outside zone of danger - a mile away from train

collision — could not recover for fright and emotional

distress); cf. Simmons v. Pacor, Inc., 674 A.2d 232, 238 (Pa.

1996) (“cases which base recovery upon an ‘impact’

rather than an injury involve plaintiffs who have wit-

nessed a traumatic physical injury to [another]” and “are

not analogous” to asbestos exposure cases where “no

physical injury to any party has been established”) (cita-

tions omitted).

That Buckley’s exposure to asbestos does not satisfy

the zone of danger test is clear not only from the express

terms of this Court’s opinion in Gottshall, but also from

the Third Circuit’s decision on remand, in which the

Court rejected Gottshall’s argument that his exposure to

extreme heat constituted the requisite “physical impact”

under the zone of danger test. As the Third Circuit

explained (while not reaching the precise issue of

asbestos exposure because it was not before the Court),

“liJf the sun’s rays and heated air constitute physical

impacts, then many work place situations could give rise

to an impact within the meaning of the test.[ ] Such an

encompassing definition of impact would undercut the

Court’s desire to draw reasonable limits to employer

liability for emotional distress claims.” Gottshall v. Consol-

idated Rail Corp., 56 F.3d 530, 535 (3d Cir. 1995), on remand

from 114 S. Ct. 2396 (1994). At its core, Buckley’s claim is

nothing more than a variation on Gottshall’s.

In short, if the Buckley decision is permitted to stand,

the clear limits and finite range of the zone of danger test

will be lost, and the rule of law established will be

equivalent to that expressly rejected by this Court in

Gottshall. Indeed, the only limit under the Second Cir-

cuit’s decision in Buckley on the recovery of damages for

emotional distress arising out of occupational exposure is

that the worker’s exposure be “massive, «‘igthy, and

tangible.” Buckley, 79 F.3d at 1345. But this Court’s adop-

tion of the zone of danger test in Gottshall expressly was

predicated on the Court's rejection of such subjective

types of standards and of the concomitant subjecting of

defendants to “unpredictable and nearly infinite lia-

bility.” Gottshall, 114 S. Ct. at 2408-09; see also id. at 2409

(warning that under such fact-specific tests, “[jJudges

would be forced to make highly subjective determina-

tions concerning the authenticity of claims for emotional

injury, which are far less susceptible to objective medical

proof than are their physical counterparts”).

Moreover, if there was any question about whether

mere exposure to asbestos - with no physical injury, no

risk of imminent physical injury, and no fear of imminent

physical injury — is a sufficient “impact” under the zone

of danger test to give rise to an FELA emotional distress

claim, this Court’s precedent establishes that the Second

Circuit should have given “great weight,” id. at 2404, to

the common law courts’ resolution of this issue. Instead,

however, as next discussed, the Second Circuit expressly

rejected the virtually uniform common law precedent

prohibiting recovery for negligent infliction of eraotional

distress based on occupational exposure in the absence of

physical injury or the likelihood that the plaintiff will

develop a disease.

Il. THE SECOND CIRCUIT’S DECISION CONFLICTS

WITH THIS COURT’S DECISION IN GOTTSHALL

BECAUSE THE SECOND CIRCUIT DISRE-

GARDED THE COMMON LAW PRECEDENT

PROHIBITING RECOVERY FOR EMOTIONAL

DISTRESS BASED ON OCCUPATIONAL EXPO-

SURE IN THE ABSENCE OF PHYSICAL INJURY

OR THE LIKELIHOOD THAT THE PLAINTIFF

WILL DEVELOP A DISEASE.

In determining that the common law zone of danger

best reflects the purposes of the FELA, the Court looked

“to FELA itself, its purposes and background, and the

construction we have given it over the years.” Gottshall,

114 S. Ct. at 2403. Moreover, the Court emphasized that

“because ‘FELA jurisprudence gleans guidance from com-

mon-law developments,’ [the Court] must consider the

common law’s treatment of the right of recovery asserted

by respondents.” Id. (quoting Atchison, Topeka & Santa Fe

Ry. Co. v. Buell, 480 U.S. 557, 568 (1987)). As the Court

explained, “although common-law principles are not nec-

essarily dispositive of questions arising under FELA,

unless they are expressly rejected in the text of the stat-

ute, they are entitled to great weight in our analysis.”

Gottshall, 114 S. Ct. at 2404.

Under the common law, “impact” for purposes of the

zone of danger test is a “violent physical contact, a strik-

ing together, a collision.” Williams v. Baker, 572 A.2d 1062,

1064 n.8 (D.C. 1990); see also Mitchell v. Hadl, 816 S.W.2d

183, 184 (Ky. 1991) (“physical contact”); OB-GYN Assocs.

v. Littieton, 386 S.E.2d 146, 148 (Ga. 1989) (“actual bodily

contact”). Thus, common law courts applying the zone of

danger test generally permit only those plaintiffs

involved in or threatened with traumatic impact-produc-

ing accidents to recover for emotional distress. See, e.g.,

Dobelle v. National Ry. Passenger Corp., 628 F. Supp. 1518,

1521, 1525 (S.D.N.Y. 1986) (fifteen-foot section of steel rail

that struck and penetrated passenger train); Keck v. Jack-

son, 593 P.2d 668, 668-70 (Ariz. 1979) (automobile acci-

dent); Towns v. Anderson, 579 P.2d 1163, 1165 (Colo. 1978)

(en banc) (gas explosion that lifted house off its founda-

tion); see also Niederman v. Brodsky, 261 A.2d 84, 90 (Pa.

1970) (plaintiff may recover for emotional distress under

zone of danger theory only if he “was in personal danger

of physical impact because of the direction of a negligent

force against him and [he] actually did fear the physical

impact”).

9

Where there is no such obvious impact or threat of

impact, common law courts generally do not permit

recovery for emotional distress under the zone of danger

test. See, e.g., Kutner v. Eastern Airlines, Inc., 514 F. Supp.

553, 559 (E.D. Pa. 1981) (plaintiffs forced to drive home in

dangerous weather conditions because of alleged negli-

gence of airline did not state claim for negligent infliction

of emotional distress under zone of danger test because

there was no “allegation that [the airline] created any

negligent force that threatened [them] with a danger of

physical impact”); Lewis v. Westinghouse Elec. Corp., 487

N.E.2d 1071, 1072 (Ill. App. Ct. 1985) (although plaintiff

in stalled elevator feared danger of suffocation and

serious physical harm, she could not recover under zone

of danger of test because elevator was merely stalled and

she was not at “high risk of physical impact”).?

In accordance with these principles, the common law

cases make clear that occupational exposure does not

? Courts have reached similar conclusions under the

common law bystander test, which permits a plaintiff to recover

for emotional distress caused by witnessing an injury to a close

relative, even if the plaintiff was not within the zone of .

See Plummer v. Abbott Labs., 568 F. Supp. 920, 924 (D.R.I. 1983)

(rejecting plaintiff's argument that bystander rule allowed

recovery for emotional distress of DES mothers caused by

apprehension that children would develop future medical

problems because “there was no episodic single incident to be

witnessed; there was merely the insidious development - or, as

to many of the targeted plaintiffs, only the threatened

t - of a disease process”); Jansen v. Children’s Hosp.

Medical Ctr., 31 Cal. App.3d 22, 24 (1973) (witnessing gradual

decline and death of daughter due to alleged malpractice did

not meet bystander test because there was no “sudden and brief

event”).

10

satisfy the zone of danger test because there is no trauma-

tic accident, no immediate physical injury, no fear of

imminent physical injury, and no imminent risk of dis-

ease. Indeed, every common law zone of danger case of

which Conrail is aware has rejected recovery for occupa-

tional exposure, in the absence of physical injury or

imminent risk of disease. See, e.g., Adams v. Johns-Manville

Sales Corp., 783 F.2d 589, 592 (Sth Cir. 1986) (Louisiana

law); Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 274

(3d Cir. 1985) (Pennsylvania law); Nutt v. A.C. & S., Inc.,

466 A.2d 18, 25 (Del. Super. Ct. 1983), aff'd, 480 A.2d 647

(Del. 1984) (Delaware law).

Indeed, whether applying the zone of danger or any

other test, federal and state courts applying state com-

mon law are virtually unanimous in holding that occupa-

tional exposure such as that at issue here, without present

physical injury or the likelihood of developing a disease

in the future, cannot support a claim for negligent inflic-

tion of emotional distress. See, e.g., Ball v. Joy Techs., Inc.,

958 F.2d 36, 38 (4th Cir.) (Virginia and West Virginia law)

(no recovery for negligent infliction of emotional distress

' because “mere exposure of the plaintiffs to toxic chemi-

cals does not provide the requisite physical injury to

entitle plaintiffs to recover for their emotional distress”),

cert. denied, 502 U.S. 1033 (1992); Deleski v. Raymark Indus.,

Inc., 819 F.2d 377, 380 (3d Cir. 1987) (New Jersey and

Pennsylvania law) (no recovery for negligent infliction of

emotional distress absent physical injury caused by

asbestos exposure or physical manifestation of the feared

disease); In re Hawaii Fed. Asbestos Cases, 734 F. Supp.

1563, 1569-70 (D. Haw. 1990) (no cause of action for

emotional distress based on asbestos exposure in the

11

absence of actual compensable harm); Bondy v. Texas East-

ern Transmission Corp., 701 F. Supp. 112, 114 (M.D. La.

1988) (requiring present PCB-related injury as predicate

to recovery for mental anguish arising from exposure to

PCBs), aff'd, 872 F.2d 422 (9th Cir. 1989); Burns v. Jaquays

Mining Corp., 752 P.2d 28, 30-31 (Ariz. Ct. App. 1987) (no

recovery for emotional distress and fear of cancer for

plaintiffs with no asbestos-related disease, because

“[jJustice would not be done either to the plaintiffs or the

defendants by allowing a suit prior to manifestation of

any physical injuries or disease”), review dismissed, 781

P.2d 1373 (Ariz. 1989); Mergenthaler v. Asbestos Corp., 480

A.2d 647, 651 (Del. 1984) (in asbestos exposure case,

present physical injury required in order to state claim

for mental anguish); Doner v. Ed Adams Contracting, Inc.,

617 N.Y.S.2d 565, 566 (App. Div. 1994) (denying recovery

for emotional distress to asbestos-exposed plaintiff who

did not show likelihood of contracting disease as result of

exposure); see also Redland Soccer Club, Inc. v. Department

of the Army, 55 F.3d 827, 848 (3d Cir. 1995) (Pennsylvania

law) (no recovery for emotional distress for uninjured

plaintiffs exposed to toxic wastes in soccer field that was

formerly a landfill), cert. denied, 116 S. Ct. 772 (1996); cf.

Locke v. Johns-Manville Corp., 275 S.E.2d 900, 904-05 (Va.

1981) (in determining whether suit was timely filed, stat-

ing that action for cancer arising from asbestos exposure

does not accrue until plaintiff suffers actual physical

harm; “legally and medically there was no injury upon

inhalation of defendants’ asbestos fibers”).

Rather than following the teachings of the common

law as required by Gottshall, the Second Circuit found the

virtually uniform common law precedent “inapposite.”

12

See Buckley, 79 F.3d at 1345. Instead, the Court chose to

rely on three decisions. One of those decisions, Wetherill

v. University of Chicago, 565 F. Supp. 1553 (N.D. Ill. 1983),

can only be described as anomalous and is, in any event,

of dubious authority, having been disavowed by later

courts in recognition of the Illinois courts’ “refus{al] to

allow recovery for mental or emotional distress in the

absence of a physical injury or illness.” Poole v. Alpha

Therapeutic Corp., 698 F. Supp. 1367, 1371-72 & n.4 (N.D.

iil. 1988). The other two decisions relied upon by the

Second Circuit support Metro-North’s position, not Buck-

ley’s, because they involved an actual physical injury. See

Hagerty v. L & L Marine Servs., 788 F.2d 315, 316-17 (5th

Cir. 1986) (plaintiff sustained impact after being doused

with chemicals and suffered dizziness, leg cramps, and

stinging sensation in his extremities); Lavelle v. Owens-

Corning Fiberglas Corp., 507 N.E.2d 476, 478, 480 (C.P.

Cayahoga Cty. 1987) (plaintiff had physical injury -

asbestosis).

In Gottshall, this Court emphasized that the Third

Circuit’s rejection of the common law was fundamental

error. See Gottshall, 114 S. Ct. at 2408 (“[b]y treating the

common-law ttests as mere arbitrary restrictions to be

disregarded iff they stand in the way of recovery on

‘meritorious’ FELA claims, the Third Circuit put the cart

before the horse: the common law must inform the

availability off a right to recover under FELA for negli-

gently inflicted emotional distress, so the ‘merit’ of a

FELA claim of this type cannot be ascertained without

reference to the common law”). As the Court made clear,

in terms tha? starkly reveal the Second Circuit's error in

Buckley:

— ea

13

Our FELA cases require that we look to

common law when considering the right to

recover asserted by respondents, and the com-

mon law restricts recovery for

i on

grounds: the potential for a

are difficult for judges

g

2.

5

5

Id. at 2411.

In sum, the Second Circuit's decision is contrary to

Gottshall both because Buckley's claim does not satisfy

Gottshall’s zone of danger test and because, like the Third

Circuit’s decisions in Gottshall and Carlisle that this Court

reversed, the Second Circuit’s decision allows recovery

under the FELA for injuries that are not compensable

under the common law.

14

CONCLUSION

For the foregoing reasons, amicus curiae Consolidated

Rail Corporation respectfully requests that this Court

grant the petition for a writ of certiorari.

Ravpw G. WELLINGTON*

Nancy WINKELMAN

Attorneys for Amicus Curiae

Consolidated Rail Corporation

*Counsel of Record

ScCHNADER HarRIsON Seca & Lewis

1600 Market Street, Suite 3600

, PA 19103

(215) 751-2000

Bruce B. Wiison

Lucy S.L. AMERMAN

THomas J. WAmsER

Eten M. Goerinc

Consolidated Rail Corporation

2001 Market Street

Philadelphia, PA 19103

Of Counsel.

Dated: September 27, 1996.