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

| Supreme Court, U.S.

FILED

kal DEC 16

Uy 1996

CLERK

No. 96-320 a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

METRO-NORTH COMMUTER RAILROAD

COMPANY,

Petitioner,

v.

MICHAEL BUCKLEY,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Daniel J. Popeo

Counsel of Record

Penelope Kilburn Shapiro

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave., NW

Washington, D.C. 20036

(202) 588-0302

Date: December 16, 1996

QUESTION PRESENTED

May mere exposure to a potentially harmful substance, in

the absence of any physical injury or even symptom, be a

sufficient basis for recovery under the Federal Employers’

Liability Act?

TABLE OF CONTENTS

QUESTION PRESENTED ...........-020eeeeeeee I

TABLE OF CONTENTS .....-.ccccccccssccvvcves ii

TABLE OF AUTHORITIES ............5.0+0e0005 iv

INTEREST OF THE AMICUS CURIAE .............. l

SUMMARY OF ARGUMENT ............-0500 eee 2

ARGUMENT 2... scccccscvccscnvsavssasensnsecns 4

I. THE MENTAL DISTRESS COMPLAINED OF

CANNOT SUPPORT A CAUSE OF ACTION

UNDER FELA OR THE COMMON LAW ....4

A. This Court’s Decision in Gottshall Establishes

That Buckley Cannot State A Claim Solely

For His Anxiety Over A Speculative, Future

balemy 2... cccccnnbdcekvsenebenenneeee 5

B. The Lower Courts Have Consistently Rejected,

Both in the FELA and Common Law Contexts,

The Speculative Claim Asserted By Mr.

Duke onc vaccdcestnedcccsbvenseas 10

Il. THE IMPORTANT PUBLIC POLICIES OF

PREVENTING UNLIMITED LIABILITY FOR

EMPLOYERS AND ENSURING ADEQUATE

RECOVERY FOR ALL PHYSICALLY INJURED

EMPLOYEES REQUIRE THE REVERSAL OF

THE DECISION BELOW _..........+.455 12

A. The Prospect Of Unlimited And Unpredictable

Employer Liability Supports The Dismissal Of

Mr. Buckley’s Speculative Claim ....... 13

B. Allowing Recovery Solely For Anxiety Will

Result In Windfalls To Uninjured Plaintiffs and

Will Divert Existing Judicial And Financial

Resources From Physically-Impaired

a RS a 16

C. Mr. Buckley’s Situation Is Not Unique And

Allowing Him To Recover For Fear Will Set A

Far-Reaching Precedent .............. 20

ill. THE DECISION BELOW WOULD MAKE

EMPLOYERS’ LIABILITY BROADER AND

MORE UNPREDICTABLE, THUS MAKING IT

IEE 0 0 ocecccccccccccces 23

IV. THE DECISION BELOW WOULD LEAD TO

TREMENDOUS DIFFICULTIES IN THE

APPLICATION OF THE STATUTE OF

i eee ede shea sccctcecsc ts 25

rr 28

iv

TABLE OF AUTHORITIES

CASES:

Archer v. Indus. Comm'n, 619 P.2d 27 (Ariz.

Ct. App. 1980) .... 6... cece eee e ee eee eee e eee 24

Arnett v. Dow Chemical Co., No. 729586, slip op. at 19 (Cal.

Super. Ct., San Francisco County, March 21, 1983) 13

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

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

MEE. | cd. ciendaenvateprenteees 10, 12, 14, 18

(1GBT) onc ccvcccccvcccccccccescceesesccess 21

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

502 U.S. 1033 (1992) ... 0... cece eee w eee eeees 11

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

(3d Cir. 1994) 2... ccc cece eee eeeeneceeceneces 8

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

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

IGE . cnccccnccccccccccescsersvcsccesecess

Buckley v. Metro-North Commuter R.R., No. 89 Civ. 7170-A

(WK), 1995 WL 110380 (S.D.N.Y. March 15,

DODD ccc cccceccecccnesccasesoscepetcese: 22

Carlisle v. Consolidated Rail Corp., 990 F.2d 90

(3d Cir. 1990) 0... ccc ccc cc cece eeecccneces 3,8

Vv

Carroll v. Litton Systems, Inc., CA No. B-C-88-253, 1990

U.S. Dist. LEXIS 16833 (W.D. N.C.

_ i a a a a 13

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

Nie wdisas bbbebidddicce ce passim

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

widths Cee peedune us dieses fhiiiida 19

Fontroy v. Owens, CA No. 86-4958, 1996 U.S. Dist. LEXIS

14717 (E.D. Pa. October 2, 1996). ............. 12

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

1563 (D. Haw. 1990) ............ 11, 15, 16, 25, 27

Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314

I i a ai 14

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

Seen Ach bius bd dsracke dhe ob otis occ 26

Martin v. Vaughn, CA No. 92-3828, 1995 U.S. Dist. LEXIS

10851 (E.D. Pa. May 30,1995) ................ 12

Mellon v. Goodyear, 277 U.S. 335 (1928) ............ 19

Redland Soccer Club v. Dept. Of Army, 55 F.3d 827 (3rd Cir.

EES a ea aa pe ree 1

Schweitzer v. Consolidated Rail Corp., 758 F.2d 936 (3d

Cir.), cert. denied, 474 U.S. 864 (1985) .......... 15,17

vi

Simmons v. Pacor, Inc., 674 A.2d 232

Be, BGG. ccbsecwotecvedeetédss 9, 10, 15, 17, 26

Urie v. Thompson, 337 U.S. 163 (1949) ............. 26

Vallery v. Southern Baptist Hospital, 630 So.2d 861

(La, Age. 1995)... cccsccccccccccscccvcesess 25

STATUTES:

Federal Employers’ Liability Act

GRA BS cs civetccccecctesccccccssees passim

OTHER AUTHORITIES:

Kenneth S. Abraham, Making Sense of the Liability

Insurance Crisis, 48 Ohio St. L.J. 399 (1987) ..... 24

Marc A. Antonetti, Labor Law: Workers' Compensation

Statutes and the Recovery of Emotional Distress

Damages In the Absence of Physical Injury, 1990 Ann.

Dame. Ga, BAGS 0c veicecdcavesdsétesedocuns 24

Peter W. Huber, Liability: The Legal Revolution and Its

Consequences 136-37 (1988) ..... 2... .6-05000 24

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) ....22

Peter H. Schuck, The Worst Should Go First: Deferral

Registries in Asbestos Litigation, 15 Harv.J.L. & Pub.

Paly SOB CURED occ cc ctecsessccccnvccccecece 18

vii

I. Selikoff, Disability Compensation for Asbestos-Associated

Disease in the United States, Environmental Sciences

Laboratory, Mt. Sinai School of Medicine of the City

University of New York (1981) ................ 14

Sara J. Sersland, Mental Disability Caused By Mental Stress

Cases, 33 Drake L. Rev. 751 (1983-84) .......... 24

Report of the Judicial Conference Ad Hoc Committee on

Asbestos Litigation (March 1991) .................. 19

No. 96-320

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

METRO-NORTH COMMUTER RAILROAD

COMPANY,

Petitioner,

v.

MICHAEL BUCKLEY,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF OF THE WASHINGTON LEGAL

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE

The Washington Legal Foundation (WLF) is a non-profit

public interest law and policy center with supporters in all

fifty states. WLF seeks to promote and protect the free

enterprise system and the economic and civil liberties of

individuals and businesses. In particular, WLF has devoted

substantial resources to curbing abusive litigation practices,

excessive punitive damage awards, excessive attorneys’ fees,

and unwarranted expansion of tort liability by publishing

monographs and similar educational materials on these

subjects, and by filing amicus curiae briefs in appropriate

cases. See, e.g., Consolidated Rail Corp. v. Gottshall, 114 S.

Ct. 2396 (1994); Burlington Northern Railroad Co. v. Ford,

112 S.Ct. 2184 (1992); TXO Production Corp. v. Alliance

Resources Corp., 113 §. Ct. 2711 (1992).

WLF believes that the decisicn below in this case is a

radical departure from the common law of tort liability and

the law of liability under the Federal Employers’ Liability Act

(FELA). If left intact, this decision will impose significant

costs on all businesses, both within the FELA context and

without. These increased costs will ultimately be borne by

consumers, workers, and society as a whole. WLF thus brings

a broader perspective to the issues in this case than that

presented by the parties in this action.

WLEF is filing this brief with the consent of Petitioner and

Respondent. Consent letters have been lodged with the Clerk

of the Court.

SUMMARY OF ARGUMENT

The decision below improperly permitted a plaintiff, who

manifests no physical effect whatsoever from exposure to

asbestos, to assert 2 claim under the Federal Employers’

Liability Act ("FELA"), 45 U.S.C. § 51, for negligent

infliction of emotional distress based on his general, non-

severe anxiety regarding his future health. This ruling is

directly contrary to the holding of this Court in Consolidated

Rail Corp. v. Gottshall, 114 $.Ct. 2396 (1994), is contrary to

the overwhelming weight of common law authority in the

area, and represents a radical expansion of tort liability.

3

In Gottshall, this Court recognized only a single, narrow

exception to the general requirement that emotional distress

must be accompanied by an underlying physical injury to be

compensable. The "zone of danger" exception articulated by

the Court in Gottshall, simply does not apply in the context of

the instant case and was misapplied by the Second Circuit.

Instead, this case much more closely parallels the claim

asserted in the companion case, Carlisle v. Consolidated Rail

Corp., 990 F.2d 90 (3d Cir. 1990), which was rejected

outright by this Court in Gottshall. There, this Court held that

an employee's anticipatory, wholly speculative fear of

ey injury cannot support a cognizable claim under

This limitation on liability for negligently-inflicted

emotional distress is supported by sound policy concerns.

Potential liability for mental distress claims of the sort

asserted by petitiorer would be far too vast, and their

incidence much too unpredictable. In the particular context

of asbestos litigation, allowing claims based solely on

emotional distress may exhaust the available resources of

asbestos defendants and severely prejudice those who actually

develop debilitating asbestos-related disease. If the doors of

the courthouse are thrown open wide enough to admit those

that do not yet have any physical effect of their exposure,

there may be little or no monies remaining for those that

become diseased several years down the road.

Finally, contrary to the assertions of Respondent, this

case 1s not unique and the application of the decision handed

down by this Court will not be limited solely to a few FELA

plaintiffs asserting claims for asbestos exposure. Rather, this

Court’s decision will determine whether a defendant can be

liable, based on simple negligent conduct, for the emotional

4

distress that an individual may develop because of any

increased exposure to a harmful substance.

In short, the Second Circuit’s decision is a significant and

troubling one that is directly contrary to existing authority and

will have far-reaching effects if it is upheld. For these reasons

and the reasons set forth below, the Washington Legal

Foundation (WLF) respectfully urges this Court to reverse the

decision below.

ARGUMENT

I. THE MENTAL DISTRESS COMPLAINED OF

CANNOT SUPPORT A CAUSE OF ACTION

UNDER FELA OR THE COMMON LAW

The mental distress asserted by Buckley -- general, non-

severe worry regarding potential future illness because of his

exposure to asbestos while on the job -- cannot support a

cause of action under the Federal Employers’ Liability Act or

the applicable common law. This Court's decision in

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

and numerous decisions of lower courts dealing with asbestos

exposure, make clear that an employee may not recover solely

for “fear” of developing a future illness unless and until he

has some physical injury because of the exposure. Simply

put, general free-floating anxiety regarding the possibility of

a speculative future injury, unconnected with any current

physical symptoms of such an injury, is not compensable

under FELA or the common law from which FELA gleans its

liability standards.

5

A. This Court’s Decision in Gofttshall Establishes

That Buckley Cannot State A Claim Solely For

His Anxiety Over A Speculative, Future Injury

In Gottshall, this Court first considered “under what

circumstances emotional distress may constitute ‘injury’

resulting from ‘negligence’ for purposes of the [FELA]

statute.” 114 S. Ct. at 2403.' The Court had before it in

Gottshall two consolidated claims for negligent infliction of

emotional distress. One derived from an alleged on-going

program of stressful and dangerous working conditions that

led to an employee's mental breakdown, and the other arose

out of a specific, harrowing incident in which a worker

collapsed and died causing severe fright and long-term trauma

to a co-worker who witnessed the death. The underlying

decisions of the Third Circuit had found both claims to be

compensable because the mental distress was "genuine and

serious" and was a foreseeable outcome of the employers’

negligent actions. Goftshall, 114 S.Ct. at 2408.

This Court rejected the lower court's analysis as

unworkable and unsupported by the common law. While this

Court found for the first time that a claim of negligent

infliction of emotional distress could be asserted under FELA,

it recognized the very real dangers inherent in such a cause of

action. According to this Court, claims of negligent infliction

of emotional distress must be strictly limited for two

important reasons -- the potential for fraudulent and trivial

' Section 1 of FELA provides that “[e]very common carrier by

railroad . . . shall be liable in damages to any person suffering injury

while he is employed by such carrier . . . 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.” 45 U.S.C. § 51.

6

claims and the prospect of “unpredictable and nearly infinite

liability for defendants." /d Focusing on the latter

consideration, this Court emphasized that the "genuineness"

test articulated by the Third Circuit would provide employers

with ‘no standard against which to regulate their conduct,"

114 S. Ct. at 2409, and would subject employers to liability

essentially any time an employee had an adverse emotional

response to an employer's negligent action. Because the only

check on liability would be the severity of the employee's

reaction, courts "would be forced to make highly subjective

determinations concerning the authenticity of claims for

emotional injury, which are far less susceptible to objective

medical proof than are their physical counterparts." Id. This

approach would lead to unacceptable ad hoc decision-making

and would cast the net of employer liability far too broadly.

This Court then reversed the Third Circuit and

established a far narrower test for determining when a

plaintiff may pursue a claim under FELA solely for emotional

harm without any accompanying physical injury. The Court

adopted the "zone of danger" test, holding that the sole

exception to the general rule that emotional harm is

compensable only when linked to a physical injury is where

the employee -- although in fact unhurt physically -- was

within the imme7:>*e vicinity of an accident or incident and

was threatened with imminent physical injury. In other

words, where a ceiling collapses due to negligence, it will be

no defense to liability if the employee standing under it was

able to leap to safety at the last moment and avoid physical

injury. 114 S. Ct. at 2406, 2410.

In restricting valid claims for negligent infliction of

emotional distress in this manner, this Court explicitly

7

severe emotional harm would not be entitled to recover under

the law. Gottshall, 114 S. Ct. at 2411. This Court reasoned

that numerous important policy concerns, including "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,” argue against providing a cause of action for all

persons who have suffered emotional harm due to their

employers’ negligent actions. /d

Contrary to the Second Circuit's conclusion in the instant

case, the zone of danger exception provides no basis for Mr.

Buckley to recover here. Indeed, none of the traditional

elements of the zone of danger test is present where a plaintiff

is seeking to recover for the increased anxiety he feels

because of exposure to a potentially dangerous agent, such as

asbestos. There was no accident or singular traumatic event

here. Mr. Buckley is not in any imminent danger of

developing a physical disease or impairment; indeed, his

general anxiety is the result of his inability to determine for as

many as twenty to thirty years whether he has been harmed in

any way by his exposure. Finally, Mr. Buckley does not

allege that he suffered a severe fright that led to emotional

injury. See Gottshall, 114 S. Ct at 2406, 2410-11 (discussing

waditional elements of zone of danger test and citing cases).

* Indeed, Mr. Buckley appears explicitly to concede in his

ws aarear Ib ates nt Sens dy ach hnesee reaction to his

exposure has not been “severe,” see Respondent's Brief In Opposition

to the Petition for Writ of Certiorari at 14-17, and asserts only that he

has “an appropriate level of distress,” id. at 5, because of his employer's

negligent action. This failure to even allege, let alone establish, an acute

emotional reaction to his exposure to asbestos removes Mr. Buck!<y

from the zone of danger paradigm and bars his recovery.

Rather, Mr. Buckley's claim is more akin to the claim

pursued by the companion plaintiff, Mr. Carlisle, which this

Court dismissed outright in the Goftshall decision. Mr.

Carlisle was a train dispatcher who alleged that the dangerous

working conditions that Conrail imposed upon him --

including requiring him to rely on outdated and unsafe

equipment, demanding that he work long and arduous shifts,

and subjecting him to the supervision of an alcoholic boss --

caused him to suffer severe emotional distress. Carlisle v.

Consolidated Rail Corp., 990 F.2d 90, 92-93 (3d Cir. 1993);

see also Bloom v. Consolidated Rail Corp., 41 F.3d 911, 914

(3d Cir. 1994) (describing the cause of Mr. Carlisle's stress as

the pressure "to achieve on-time performance" and "to ignore

safety concerns that would slow the movement of trains").

This Court overturned the Third Circuit and directed that

judgment be entered against Mr. Carlisle. In doing so, this

Court reasoned that such a claim "plainly does not fall within

the common law's conception of the zone of danger,” and

ruled that FELA does not provide any remedy for work-

related stress arising from unsafe or arduous working

conditions. Gottshall, 114 S. Ct. at 2411-12.

Mr. Buckley's claim is similar to that of Mr. Carlisle.

Mr. Buckley claims that the unsafe working conditions

negligently created by Metro-North, i.e.,, the failure to protect

him adequately against asbestos exposure, have caused him

to fear that he may develop cancer or another physical

impairment at some point in the future. Mr. Carlisle's claim

was closely analogous. Mr. Carlisle claimed that the unsafe

conditions under which he was forced to work made him

fearful and overwrought. More specifically, he alleged that

the dangerous working conditions negligently created by his

employer caused him to be afraid that he would someday

harm himself severely in performing his job duties or that he

9

would cause injury to passengers or freight at some future

time. According to Mr. Carlisle, the stress of this fear

ultimately led to a mental breakdown. In rejecting Mr.

Carlisle's claim, this Court concluded that this sort of

generalized worry about possible future harms, even where

the emotional distress it caused was severe, can not support a

cause of action under FELA.

The logic of the Gottshall decision regarding Mr.

Carlisle's claim dooms Mr. Buckley's claim and demonstrates

the fallacy of the Second Circuit's decision here. Certainly, if

a negligently unsafe aspect of Mr. Carlisle's job had actually

resulted in physical injury to him, he would have been entitled

to assert a claim against Conrail for his physical injuries and

any accompanying emotional distress. Prior to any such

injury, however, his anticipatory concern regarding safety

issues, no matter what emotional trauma it may have led to,

eee onmpeneaate injury under FELA or the common

Analogously, on the facts of this case, if Mr. Buckley, in

fact, suffers a physical impairment as a result of his exposure

to asbestos, he will be allowed to pursue a claim for that

physical injury and the accompanying, if any, emotional

distress. In this way, Mr. Buckley will not be deprived of a

remedy in the admittedly unlikely event that he should

develop an asbestos-related impairment at some time in the

future. See Simmons v. Pacor, 674 A.2d 232 (Pa. 1996)

(“Appellants are not left without a remedy for their mental

anguish. . . [They can bring an action] if cancer develops. It

is in this action that Appellants can assert their emotional

distress or mental anguish claims.”). Until such time as Mr.

Buckley develops any such physical impairment, however, his

10

anxiety is wholly speculative and cannot support a claim

under FELA.

B. The Lower Courts Have Consistently Rejected,

Both in the FELA and Common Law Contexts,

The Speculative Claim Asserted By Mr. Buckley

The Second Circuit's decision below is at odds with

most, if not all, of the lower court decisions to consider the

type of claim presented here. In numerous recent, well-

toxic tort litigation have rejected claims for emotional distress

based solely on exposure and fear of potential future injury.

For example, United States District Judge Charles

Weiner, who presides over the federal multi district asbestos

personal injury litigation, recently dismissed the claims of a

group of plaintiffs that alleged emotional distress from

exposure only without any physical injury. Following the

reasoning of the Pennsylvania Supreme Court in Simmons,

674 A.2d at 238, which distinguished between the concepts of

“physical impact” and a “physical injury,” Judge Weiner held

that the inhalation of asbestos fibers was not a compensable

physical injury. In re Asbestos Prods. Liab. Litig. (No. VI),

CA No.2 MDL 875, 1996 WL 239863, at *14-15 (E.D. Pa.

May 2, 1996) (discussing both FELA and Jones Act claims).

According to Judge Weiner and the Pennsylvania Supreme

Court, even assuming that the inhalation of asbestos fibers

could be characterized as a physical impact or injury, it was

not sufficient standing alone to support a tort action for

‘onal | “(Physical inj ficient to maintain @

tort action must be accompanied by harm,” by which the court

plainly meant physical harm. Id (emphasis added); see

Simmons, 674 A.2d at 238 (asymptomatic pleural thickening

11

is not sufficient physical injury to allow recovery of emotional

distress damages).’ Without any accompanying physical

harm, the metaphysical physical impact or injury caused by

the inhalation or ingestion of a substance does not support an

Numerous other courts have reached the same conclusion

in a variety of contexts. See, e.g, Redland Soccer Club v.

Dept. Of Army, 55 F.3d 827, 846 (3rd Cir. 1995) (affirming

dismissal of homeowners’ claims for emotional distress

caused by exposure, through ingestion and inhalation, to

allegedly contaminated field because no plaintiff had any

physical injury from exposure); Ball v. Joy Techs.,Inc., 958

F.2d 36, 38 (4th Cir.) cert. denied, 502 U.S. 1033 (1992)

(“mere exposure of the plaintiffs to toxic chemicals does not

provide the requisite physical injury to entitle plaintiffs to

recover for their emotional distress”); Jn re Hawaii Federal

Asbestos Cases, 734 F. Supp. 1563 (1990) (requiring

underlying compensable harm such as some functional

impairment from asbestos exposure before recovery may be

had for mental anguish); Bondy v. Texas Eastern

Transmission Corp., 701 F. Supp. 112, 114 (M.D. La. 1988),

Simmons, 674 A.2d at 238 (citations omitted).

12

aff'd, 872 F.2d 422 (Sth Cir. 1989) (requiring PCB-related

physical injury before plaintiff may recover for mental

anguish arising from exposure to PCBs); Fontroy v. Owens,

CA No. 86-4958, 1996 U.S. Dist. LEXIS 14717 (ED. Pa.

October 2, 1996) (absent physical impairment “fear of

asbestos-related cancer is not a compensable injury”); Martin

v. Vaughn, CA No. 92-3828, 1995 U.S. Dist. LEXIS 10851

(E.D. Pa. May 30, 1995) (mental anguish from fear of

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

virtually uniform common law precedent that has refused to

recognize claims solely for fear of future, speculative adverse

health consequences because of exposure to harmful

substances.

Il. THE IMPORTANT PUBLIC POLICIES OF

PREVENTING UNLIMITED LIABILITY FOR

EMPLOYERS AND ENSURING ADEQUATE

RECOVERY FOR ALL PHYSICALLY INJURED

EMPLOYEES REQUIRE THE REVERSAL OF

THE DECISION BELOW

The Gottshall decision and the decisions cited above

have been based explicitly or implicitly on two important

public policy goals: (1) the need to avoid exposing employers

to virtually unlimited lictable. and able claims.

and (2) the need to compensate fairly and adequately those

individuals that are physically injured and to avoid windfall

awards to persons who never suffer any physical injury. Each

of these important public policy concerns is present in this

13

case and argues strongly for the reversal of the Second

Circuit’s decision below.

A. The Prospect Of Unlimited And Unpredictable

Employer Liability Supports The Dismissal Of

Mr. Buckley’s Speculative Claim

The Court made plain in Gottshall that concern regarding

the specter of unpredictable and unlimited liability for

employers was paramount. 114 S. Ct. at 2408-09, 2411. This

concern arises from the highly variable emotional responses

of different persons to a particular event, and from the large

number of persons that may be emotionally effected by an

employers’ negligent action. /d at 2409. Thus, this Court

concluded that any rule of liability broader that the zone of

danger test could cause employers “to face the potential of

unpredictable liability to a large number of employees far

removed from the scene of the allegedly negligent conduct.”

Id.

In addition, the courts have been sensitive, as they must

be, to the significant potential for abuse inherent in emotional

distress claims. As one court aptly put it:

the specter of unlimited liability from an army of

plaintiffs parading their tumescent fears into the

courtroom supported by a corps of psychiatrists has

resulted in proper judicial restraint in this area. Fear

is a widespread phenomenon, highly subjective,

contagious and capable of being feigned.

Carroll v. Litton Systems, inc., CA No. B-C-88-253, 1990

U.S. Dist. LEXIS 16833 (W.D. N.C. October 29, 1990),

quoting, Arnett v. Dow Chemical Co., No. 729586, slip op. at

ee Te ee a

14

19 (Cal. Super. Ct., San Francisco County, March 21, 1983).

Each of these concerns is applicable in the context of the

instant case. If this Court were to uphold the Second Circuit's

decision, it would significantly increase the liability of

railroad and other employers in any number of contexts.‘

In the arena of asbestos litigation alone, the . fect of the

Second Circuit's decision will be dramatic. As this Court

certainly is aware, asbestos litigation is a huge and potentially

crippling problem for the United States court system, and,

indeed, for the United States economy. Tens of thousands of

for asbestos-related disease have been filed in state and

federal courts over the past twenty-five years.’ While it is not

possible to determine precisely the number of workers and

individuals that have been exposed to asbestos, experts have

estimated that more than 21 million workers were

significantly exposed to asbestos in the 40 years prior to 1980.

See Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314,

1337 (Sth Cir. 1985), citing, 1. Selikoff, Disability

Compensation for Asbestos-Associated Disease in the United

* As discussed below, infra at 19-20, despite respondent's

protestations, the increased scope of liability will not be limited to

railroad employers. Just as FELA is informed by the common law,

Gottshall, 114 S$. Ct. at 2403, the common law is influenced by this

Court's pronouncements of tort law under FELA.

* The size of the pending asbestos caseload remains a matter of

grave concern. As Judge Weiner, who presides over the federal multi

district asbestos personal injury litigation, recently noted, the total

number of asbestos cases that have been filed in the multi district

proceeding is 58,478, and only approximately 20,000 of these have been

resolved to date. See In re Asbestos Prods. Liab. Litig.,1996 WL

239863, at *5 (E.D. Pa. May 2, 1996).

15

States, Environmental Sciences Laboratory, Mt. Sinai School

of Medicine of the City University of New York (1981).

If the Second Circuit's decision is affirmed, there would

be, for all intents and purposes, no limit to the class of

plaintiffs that would be entitled to sue for negligent infliction

of emotional distress. Literally any worker that had any

regular comiact with asbestos fibers in the work place, and

there are certainly millions of such individuals, would be

entitled to sue for any increased worry and concern they might

have as a result of that exposure. An employer's liability

would be nearly limitless and entirely unpredictable. As the

Third Circuit concluded,

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 resulting in windfalls for those

who never take ill and insufficient compensation for

those who do.

Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 942 (3d

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

16

Moreover, this decision will not be limited to asbestos

claims or to the employment context. Beyond asbestos,

employers could potentially be liable for any negligently-

created working condition that increased an employee's

anxiety about his future health. Employees who worked with

and inhaled toxic gases or chemicals, or even employees that

inhaled secondhand smoke in the work place, could assert

claims for negligent infliction of emotional distress based

solely on their increased worry about developing cancer or

other diseases. A worker that worked around and absorbed

the emanations from high-powered electric lines could

potentially sue based on the presence of electromagnetic

fields that increased his anxiety about getting brain cancer.

Similarly, individuals that inhaled or ingested allegedly toxic

substances from negligently contaminated land, water

supplies, or foodstuffs could sue simply for the increased

anxiety this caused them without having to establish any

physical effect whatsoever from the ingestion. This is

precisely the sort of unlimited, unpredictable, and

unprincipled liability that this Court denounced in Gottshall.

hf. Allowing Recovery Solely For Anxiety Will

Result In Windfalls To Uninjured Plaintiffs and

Will Divert Existing Judicial And Financial

Resources From Physically-Impaired Individuals

At bottom, damage awards for negligent tort actions are

designed fairly to compensate the claimant for actual damages

incurred. If claims for fear of cancer are allowed to proceed,

significant inequities will inevitably result. Those who suffer

no physical injury may receive substantial windfall awards,

while others that have considerable physical impairment may

ultimately be under compensated.

17

Damages awarded for fear of cancer are necessarily

wholly speculative. To allow such awards would contravene

longstanding principles against allowing the award of

speculative damages, and any award will suffer the same

deficiencies cited to deny speculative damages. Specifically,

in the instant context, those individuals that receive a damage

award for their anxiety and never develop any physical

impairment, and the overwhelming majority of plaintiffs will

fall into this category, will have received a windfall -- that is,

compensation for their anticipatory worry about a potential

result that did not, in fact, occur. See Schweitzer, 758 F.2d at

942 (award of damages for fear of cancer is wholly

speculative and necessarily would lead to unfair results);

Simmons, 674 A.2d at 238 (same). Moreover, because of the

speculative nature of these damages, damage awards for fear

would be subject to few, if any, objective limitations or

standards. These awards are likely to vary widely, resulting

in huge awards to some and little to others.’

At the same time, the pursuit of these anticipatory claims

for mental distress, if allowed, will divert limited judicial and

financial resources from those who suffer from physical

impairments due to asbestos. As Judge Weiner poignantly

noted in dismissing a class of plaintiffs that alleged no

physical impairment:

Although this Court retains a vigilant concern for all

parties to the litigation, the Court has prioritized

from the onset the victims of asbestos-related

’ ‘The lack of limiting standards and the prospect, therefore, of

a substantial jury award for fear and anxiety will likely serve only to

encourage the filing of more claims for negligent exposure to asbestos

and other harmful substances.

18

disease, and in particular, those who suffer with

malignant conditions as well as their families. The

Court’s focus is to administer these cases as it has

all the others by seeing that they are resolved in an

equitable and expeditious manner either by

settlement or by trial while making certain there will

be sufficient resources available to compensate those

who are deserving.

In re Asbestos Prods. Liab. Litig., 1996 WL 239863, at *18.

As this Court is undoubtedly aware, neither the nation's

judicial resources nor the resources of asbestos defendants are

infinite. The bankruptcy filings of numerous asbestos

manufacturers attest to the unavoidable fact that there is a

limited amount of money available to compensate those

individuals injured by asbestos, and that pool of funds may be

exhausted at some point. For this reason, experts have

counseled that claims should be addressed in the order of their

severity. See, e.g., Peter H. Schuck, The Worst Should Go

First: Deferral Registries in Asbestos Litigation, 15 Harv.J.L.

& Pub. Pol'y 541 (1992); In re Asbestos Prods. Liab. Litig.,

1996 WL 239863 at *5 (dismissing claims of asymptomatic

plaiatiffs because they "waste this Court's time. Other victims

suffer while the Court is clogged with such filings.").*

. The very real possibility that future claimants may have co

practical recourse against bankrupt asbestos defendants was recognized

by the Judicial Conference Ad Hoc Committee on Asbestos Litigation

appointed by Chief Justice Rehnquist, which reported that:

{Djockets in both federal and state courts continue to grow;

long delays are routine; trials are too long; the same issues

are litigated over and over; transaction costs exceed the

(continued...)

19

Certainly, the interests of individuals such as Mr. Buckley,

who have no physical impairment and only generalized

anxiety about their future health, should not be placed ahead

of those that have suffered or will suffer physical injury

because of their asbestos exposure.

Finally, allowing asbestos plaintiffs, such as Mr.

Buckley, to recover for their "fear of cancer" alone, may

ultimately under compensate them if they actually do develop

an asbestos-related impairment. FELA has traditionally been

a single recovery statute, meaning that a plaintiff may sue

only one time for injuries arising from a particular wrongful

act of the employer. See Mellon v. Goodyear, 277 U.S. 335,

344 (1928); Flynn v. New York. N. H. & H. R. Co., 283 U.S.

53, 56 (1931). While some courts have modified this rule in

the context of latent diseases, this issue has not been finally

resolved in the context of a FELA claim for negligent

infliction of emotional distress.” The Second Circuit here

explicitly ruled that Mr. Buckley can recover only for his

current emotional harm and not for the risk of contracting an

*(...continued)

victim's recovery by nearly two to one; exhaustion of assets

threatens and distorts the process; and future claimants may

lose altogether.

Report of the Judicial Conference Ad Hoc Committee on Asbestos

Litigation (March 1991), p. 3. These deficiencies in the current system

will only be exacerbated if claimants alleging only fear of asbestos injury

are permitted to pursue claims.

% Significantly, Mr. Buckley provides no support for his bald

assertion that a “FELA claim for the negligent infliction of emotional

distress is separate and distinct from a FELA manifest physical injury

claim.” Respondent's Brief in Opposition to the Petitioner for Writ of

Certiorari at 13 n.5.

20

asbestos-related disease at some future date. (A-18,n.1) If

Mr. Buckley ultimately develops a physical impairment, it is

not clear that he will be able to pursue a second claim against

Metro-North for his physical injury. Thus, if his claim is

allowed to go forward now, Mr. Buckley could potentially

end up considerably under compensated for injuries caused by

his asbestos exposure.

Cc. Mr. Buckley’s Situation Is Not Unique And

Allowing Him To Recover For Fear Will Set A

Far-Reaching Precedent

Mr. Buckley essentially concedes that allowing him to

pursue a claim for fear of future disease will expand the

current tort law, and devotes much of his argument to

assuring this Court that such an expansion will effect only a

narrow group of potential claimants. Specifically, respondent

claims that this Court’s decision will apply only to railroad

employees covered by FELA, see Respondent's Brief In

Opposition to Petition for Certiorari at 7, and will apply only

to those employees that have “massive” or “significant”

exposure to asbestos. /d at 8. Neither of these limiting

arguments is persuasive.

The first limiting principle respondent raises -- that this

decision will have no application outside the FELA context --

can be easily disposed of. As this Court noted in Gottshall,

FELA decisions are informed by the common law, especially

in the context of the claim asserted here. 114 S. Ct. at 2404

(“Because FELA is silent on the issue of negligent infliction

of emotional distress, common-law principles must play a

21

significant role in our decision.”)'®; see Atchison, Topeka &

Santa Fe Railway, 480 U.S. 557, 569 (1987) (“FELA

jurisprudence gleans guidance from common-law

developments”). Thus, this Court’s FELA decisions are

explicitly based on the Court’s interpretation of the current

status of the tort law landscape. It therefore makes little sense

to argue that lower courts will not be influenced by this

Court’s pronouncements as to its views of the settled

principles and/or emerging trends in modern tort law.

Respondent’s “significant exposure” test is also not an

effective limit. At the outset, it is precisely the same sort of

“highly subjective,” “fact-specific test” as the genuineness

inquiry that this Court declared unworkable in Gottshall. 114

S. Ct. at 2409. How much exposure is “significant” would be

bound to vary with every court and with every harmful

substance, leading to the imposition of haphazard and

inconsistent liability on defendants.

Respondent appears to recognize this difficulty and

attempts to link the “significant exposure” test to a known

standard. How much exposure does Respondent think is

significant? Evidently, any amount that exceeds the current

Occupational Safety and Health Administration (OSHA)

guidelines for the presence of asbestos in the workplace. The

breadth of the liability advocated by Respondent is thus truly

10 ;

Indeed, this Court specifically scolded the Third Circuit for

ignoring the common law. 114 S. Ct. at 2408 (“By treating the

common-law tests as mere arbitrary restrictions to be disregarded if 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 of a right to recover under FELA for negligently inflicted

emotional distress, so the “ merit’ of a FELA claim of this type cannot

be ascertained without reference to the common law.”).

22

staggering. Any time that an employer negligently violated an

applicable OSHA guideline, it could be liable for any

resulting anxiety in its work force. Similarly, any defendant

that negligently violated any environmental or other agency

guideline at any of its sites could be liable to surrounding

residents or others who were exposed to the site."

Finally, there is the suggestion throughout both

Respondent's Brief in Opposition to the Petition for Certiorari

and the Second Circuit’s decision that Metro-North must be

punished for its allegedly egregious conduct here. It is

important to remember, however, that no ultimate findings of

fact exist on these issues because the District Court directed

a verdict in favor of Metro-North at the close of Mr.

Buckley’s case. Buckley v. Metro-North Commuter R.R., No.

89 Civ. 7170-A (WK), 1995 WL 110380 (S.D.N.Y. March

15, 1995). Further, Mr. Buckley’s claim is for negligent

infliction of emotional distress, and does not assert any

intentional wrongdoing. Thus, the only issue before the

Second Circuit and now this Court is whether, based on

simple negligence, a defendant can be required to compensate

its employees for emotional distress if they are exposed to

asbestos at some indeterminate level above normal

background amounts. It is broadly recognized that

punishment is not an appropriate goal of negligence law. See

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, 504 (1982).

‘| The number of persons who believe that they have been

“significantly” exposed to harmful substances is demonstrated vividly by

the number and variety of cases that already have been brought

attempting to recover for emotional distress. See supra at p. 11-12.

23

In sum, the Second Circuit, unlike virtually every other

court to consider this issue, has ruled that individuals that

have ingested, inhaled, or otherwise absorbed a potentially

harmful substance because of another’s simple negligence

may sue for any increased anxiety that this causes them. The

breadth of this ruling, if affirmed by this Court, will have a

substantial detrimental effect on the judiciary, business

defendants, and physically injured claimants.

ill. THE DECISION BELOW WOULD MAKE

EMPLOYERS’ LIABILITY BROADER AND

MORF, UNPREDICTABLE, THUS MAKING IT

MORE DIFFICULT TO INSURE

The decision below would expand employers’ liability for

emotional distress far beyond the boundaries of the zone of

danger exception. The increased breadth and unpredictable

nature of this liability will increase the cost and restrict the

availability of liability insurance.

When considering claims for emotional distress, it is

important to keep in mind that workplace mental distress is

far more difficult for an employer to predict and prevent than

physical injury. Physical injuries, which have a clear physical

cause and effect, do not depend primarily on the individual

characteristics of the plaintiff.'?, Emotional injuries, on the

other hand, depend entirely on such characteristics. See Marc

'2 While the emotional response of a plaintiff within the zone of

danger is also dependent on his or her individual propensities, the zone

of danger exception itself is premised on the occurrence of a particularly

horrible accident or other singular physical event. For this reason, it is

a much more limited area of liability than that created by the decision

below

24

A. Antonetti, Labor Law: Workers' Compensation Statutes

and the Recovery of Emotional Distress Damages In the

Absence of Physical Injury, 1990 Ann. Surv. Am. Law 671,

672. “Where a workman loses a finger because of an errant

piece of machinery, the ascertainable injury and the work-

related cause are direct and simple. However, emotional

distress may have multiple causes, some work-related, others

not so related." Archer v. Indus. Comm'n, 619 P.2d 27 (Ariz.

Ct. App. 1980). Clearly, a worker's “personal subjective

vulnerability" determines his or her reaction to job conditions,

including job stress or exposure to toxic agents. Sara J.

Sersland, Mental Disability Caused By Mental Stress Cases,

33 Drake L. Rev. 751, 757 (1983-84). Moreover, while

asbestos-related diseases follow an etiology that allows their

rate to be predicted with some statistical certainty, and

historical claims rates can be used to predict the rate of

industrial accidents, emotional distress claims have no such

characteristic.

It is simply not possible to estimate with any degree of

certainty the number of persons that may have an adverse

emotional response to exposure to asbestos or to any other

unsafe working condition. The unpredictability of emotional

distress, and therefore of liability for emotional distress under

a negligence standard, will have an important economic

consequence: it will reduce the availability and increase the

cost of liability or workers’ compensation insurance.

Insurance requires that risk be statistically predictable over

the long term. See Peter W. Huber, Liability: The Legal

Revolution and Its Consequences 136-37 (1988); Kenneth S.

Abraham, Making Sense of the Liability Insurance Crisis, 48

Ohio St. LJ. 399, 404-09 (1987). Insurers do not have the

means to make the predictions about the incidence and

severity of emotional distress claims that are necessary to

25

price an insurance product efficiently. Employers will

therefore find liability insurance more difficult to find and

more costly to purchase.'? These increased costs will be

passed on, in whole or in part, to workers, in the form of

lower wages, and/or consumers, in the form of higher prices.

IV. THE APPLICATION OF THE STATUTE OF

LIMITATIONS TO CLAIMS FOR FEAR OF

FUTURE ILLNESS IS UNWORKABLE

Finally, allowing Mr. Buckley's speculative claim to

proceed would not only represent bad policy, it will also lead

to practical problems in the prosecution of such claims.

Specifically, the relevant statute of limitations issues would

be exceedingly difficult to adjudicate.

The application of a statute of limitations depends on a

determination as to when the claim being asserted arose.

Virtually every court that has considered asbestos claims in

this context has determined that no claim arises “until an

objectively verifiable functional impairment develops." /n re

Hawaii Federal Asbestos Cases, 734 F. Supp. 1563, 1570 (D.

‘3 As stated by the dissenting judge in Vallery v. Southern

Baptist Hospital, 630 So.2d 861, 870 (La. App. 1993):

Where insurance companies cannot quantify a certain risk, the

cost of insurance can be out of all proportion to the risk.

[Allowing individual to recover for fear of AIDS without an

physical injury) would add another costly layer of inordinate

expense to the treatment of AIDS without doing anything to

advance the treatment of AIDS. From a public policy

perspective, this would represent a very poor allocation of

health care dollars at a time when money for AIDS is

insufficient in particular, and the cost of health care in

general is in crisis.

26

Hawaii 1990); accord Simmons v. Pacor, Inc. et. al., 674

A.2d 232 (Pa. 1996); Locke v. Johns-Manville Corp., 275

S.E.2d 900 (Va. 1981). This is consistent with the precedent

of this Court. See Urie v. Thompson, 337 U.S. 163, 170

(1949) (worker exposed to silica dust sustains injury and

cause of action accrues only as of time that adverse effects

first manifest themselves). Thus, the development of a

physical injury is the triggering event, and the applicable

statute of limitations begins to run from that time.'*

With a claim solely for emotional distress, entirely

unconnected to any physical event, injury, or even symptom,

there is no objectively verifiable triggering event to begin the

running of the statute of limitations. A plaintiff could

arbitrarily set the date on which his emotional distress

developed. This date could be manipulated to achieve the

largest recovery from an employer and/or its insurance

companies. (For example, the date could be set just prior to

or after a sale of the employing company, whichever was

perceived to be most advantageous, or at a time when the

employer's insurance coverage was greatest.) Because of the

long incubation period of asbestos-related disease, there could

be a twenty or thirty-year period over which a plaintiff could

at any time decide that he could no longer cope with the fear

of cancer and elect to pursue a claim for negligent infliction

of emotional distress. Obviously, this significantly

undermines the policy underlying statutes of limitations; Le.,

that at some point in time the law should no longer recognize

a claim.

- Similarly, under the narrow “zone of danger” exception, the

triggering event for the statute of limitations is a known physical accident

of incident.

27

On the other hand, employers would likely argue that the

statute of limitations for an emotional distress claim should

begin to run at the time that the plaintiff "knew" all the facts

about his exposure and the health risks of asbestos. Again,

this is an unknown, virtually unverifiable date. Employers

would gather evidence seeking to establish this event on the

most convenient date for the employer. Insurance companies

that may have provided coverage to the employer over

different time periods would certainly weigh in to argue for a

A ya advantageous start of the statute of limitations

In short, simply establishing the date on which the

"claim" arose would be a highly fact-specific threshold

inquiry that could require its own mini-trial to resolve. See Jn

re Hawaii, 734 F. Supp. at 1570 (refusing to recognize a

claim for fear of cancer in part because "[a] regime of

recovery for emotional distress not anchored to an underlying

compensable harm presents boundless headaches in

adjudicating statute of limitations problems."). Such serious

practical obstacles to adjudicating claims properly argue

strongly against expanding tort liability in this manner.

In sum, there are considerable "costs" -- whether in the

form of increased crowding of the courts, the potential for the

exhaustion of available resources to compensate asbestos

plaintiffs, or the direct costs associated with buying insurance

coverage and paying claims -- that will result from the

expansion of FELA liability in the manner directed by the

Second Circuit. These costs will be borne by society as a

whole to benefit a class of plaintiffs, the majority of whom

will never contract any form of asbestos-related disease. This

is too great a price to pay and one which the law does not

support.

CONCLUSION

For the foregoing reasons, WLF respectfully requests that

this Court reverse the decision of the Second Circuit.