Amicus Curiae Brief — Norfolk & Western R. Co. v. Ayers

No. 01-963

Se —————————————————————— ee

In the Supreme Court of the Anited States

NORFOLK & WESTERN RAILWAY COMPANY,

PETITIONER

v.

FREEMAN AYERS, ETAL.

ON WRIT OF CERTIORARI

TO THE CIRCUIT COURT OF KANAWHA COUNTY,

WEST VIRGINIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

DAVIDB. SALMONS

Assistant to the Solicitor

General

ANTHONY J. STEINMEYER

PETER R. MAIER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

UT 098

QUESTION PRESENTED

The brief of the United States will address the

following question:

Whether the court below erred in awarding damages

for emotional distress under the Federal Employers’

Liability Act (FELA) to plaintiffs based on an asserted

fear of developing asbestos-related cancer, where plain-

tiffs have not actually developed cancer or any symp-

toms related to cancer and presented no evidence of

any corroborating physical manifestation of their

emotional injury.

(I)

TABLE OF CONTENTS

IIL esennetemnsenncnnnsnssscsnsanessensvensesnasesteass

Argument:

Respondents may not recover under FELA for

their asserted fear of developing cancer in the

future

PEER E EEE E EEE EEE EEE THEE ETHER EEE HEE EEO E EE EEE EEE EE EE EEE EEEEEE EEE TEESE EERO EE EEE EEO

A. FELA does not allow recovery of damages for

emotional distress stemming from the mere “fear”

GENIN cxnecerasscnsrscscessserensscsnnenscsnscscsscscscsesesn

1.

This Court’s precedents limit the availability

of emotional distress damages under FELA .....

FELA does not permit “fear of cancer” claims

before a plaintiff has developed cancer ...............

Recognition of fear of cancer damages where no

cancer has developed is inconsistent with

important common-law policy concerns and

the purposes Of FEELA .........csscsssssssssssssesesesesesees

Fears based on controversial statistical infor-

mation about uncertain increased cancer risks

are neither “severe” nor the product of

“immediate trauma” as the zone of danger test

B. FELA requires corroborating physical manifesta-

tions of negligently inflicted emotional distress .......

Conclusion

Appendix

Cases:

SEER EEE EERE EEE EEE EEE EE EEE EE EERE EEE HEHE TEE EEES

TABLE OF AUTHORITIES

American Dredging Co. v. Miller, 510 U.S. 443

(1994)

(IIT)

11

17

s 3 8

IV

Cases—Continued: Page

Anderson v. Scheffler, 752 P.2d 667 (Kan. 1988) .............. 25

Asaro v. Cardinal Glennon Mem'l Hosp., 799 S.W.2d

SEDs GEUTIEE cenercetieessncietictartsiennintitaiantesiamstiiteasnaneitatettciies 23

Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S.

EERIE Raa ovo REPO 20, 24

Barnhill v. Davis, 300 N.W.2d 104 (lowa 1981) ............... 25

Beynon v. Montgomery Cablevision L.P., 718 A.2d

es I cicsisiccsiitineteidirdnindennedcatilensesiaienntntniniarinintaraninaiaae 25

Carroll v. Owens-Corning Fiberglas Corp., 37 S.W.3d

IRATE AIEEE RA eee 12

Champion v. Gray, 478 So. 2d 17 (Fla. 1985) 0.0... 25

Cleveland v. Johns-Manville Corp., 690 A.2d 1146

ay Oa cenerentnstrstnnsnsniinsteiecennnasienninnisntaassitiatiiiaasaintsaapiaesiages 16

Consolidated Rail Corp. v. Gottshall, 512 U.S. 532

a ea TT POE Ee passim

Czaplicki v. Gooding Jt. Sch. Dist., 775 P.2d 640

IT 25

Daley v. LaCroix, 179 N.W.2d 390 (Mich. 1970) .............. 25

Devlin v. Johns-Manville Corp., 495 A.2d 495 (NJ.

Super. Law Div. 1985) ae senesuponsnnseneceees 12

Dillon v. Legg, 441 P.2d 912 (Cal. 1968) ..........ccccccsesnesneees 23

Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517 (Fla.

Fg 11,17

Ellis v. Union Pac. R.R., 329 U.S. 649 (1947) 00.02.0000 7

Falzone v. Busch, 214 A.2d 12 (NJ. 1965) _ 21

Fulmore v. CSX Transp., Inc., 557 S.E.2d 64 (Ga.

Ct. App. 2001) 2

Fusaro v. Porter-Hayden Co., 548 N.Y.S. 2d 856 (Sup.

Ct. 1989) 12

Garcia v. Burlington N. R.R., 904 P.2d 1085 (Or. Ct.

BE TREO qnumsennmmnmnnnion 21

Gulf, Colorado & Santa Fe Ry. v. Hayter, 54 S.W. 944

GUID SIE ccncenesnasvinsnicietentenatmnninemninaniiiatanpnenseteamsaamasiin 24

Hamilton v. Asbestos Corp., 998 P.2d 403 (Cal

12

Cases—Continued: Page

Hansen v. Moutain Fuel Supply Co., 858 P.2d 970

(ee 25

Herber v. Johns-Manville Corp., 785 F.2d 79 (3d Cir.

( 17

Hinton v. Monsanto Co., 813 So. 2d 827 (Ala. 2001) ....... 2

Houston v. Texaco, Ine., 538 A.2d 502 (Pa. Super.

CR, BEI cccenencessssscessnsscsssssnscescccsssnsennsssssssnnrssassnnsmnanmanancssenenseses 25

Jackson v. Johns-Manville Sales Corp., 727 F.2d 394

(5th Cir.), cert. denied, 478 U.S. 1022 (1986) ...............000+ 17

Jansen v. Children’s Hosp. Med. Ctr., 31 Cal.

App. 3d 22 (Ct. App. 19738) ...........ccscssecsssernernssrensesenensssesees 23

Jones v. CSX Transp. Corp., 287 F.3d 1341 (11th Cir.

ee 25, 26

Kernan v. American Dredging Co., 355 U.S. 426

CBD cccccccesssansnssscescarssecessssensscsssansnnssnssncsesnsnassnsssnnsnessnqusssssesessee 1

Kilpatrick v. Department of Labor, 883 P.2d 1370

(1994), amended, 915 P.2d 519 (Wash. 1995) ................. 11, 12

Kimberly v. Howland, 55 S.E. 778 (N.C. 1906) ..........0.++- 24

Kinard v. Augusta Sash & Door Co., 336 S.E.2d

GIB GDL, BOD cccresenceesmnmmenne 25

Larson v. Johns-Manville Sales Corp., 399 N.W.2d

CO. 12

Lavelle v. Owens-Corning Fiberglas Corp., 07 N.E.

2d 476 (Ct. C.P., Cuyahoga Cty., Ohio 1987) ..............00+ 14

Leaon v. Washington County, 397 N.W.2d 867

yyy 25

Mack v. South-Bound R.R., 2958.E. 905 (S.C. 1898) ....... 24

Marinari v. Asbestos Corp., Ltd., 612 A.2d 1021

(Pa. Super. Ct. 1992) - 11,12,13

Martinez v. Bally’s Louisiana, ry 244 F.3d 474

(5th Cir. 2001) ........ ee 25

Maryott v. First Nat'l Bank of Eden, 624 N.W.2d

8 ee 25

McMeakin v. Roofing & Sheet Metal Supply Co.,

807 P.2d 288 (Ct. App. 1990), cert. denied, No. 72,580

GRR, Fea BR, BEBE) ccccecnceccscsnsscsszscsnssnssvesssnzsesssssnscescsssssssessss 25

Vi

Cases—Continued: Page

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

428 (D.C. 1994) ; 21

Mergenthaler v. Asbestos Carp. of Am., 480 A.2d

Gr Ge GRD eestor 25

Metro-North Commuter R.R. v. Buckley, 521 U.S. 424

SE sociceeatiatalcitsinsihtacettiait ead tatieitaaiieadeaineneetaadimmeiiatiie passim

Miller v. Armstrong World Indus., Inc., 817 P.2d 111

SITE, MTUITIIEE ciiechcsinctnritecntdeaieiatsiatasinesiccieidneaamtalitidaadaaatamaaaatarinataes 12

Muchow v. Lindblad, 435 N.W.2d 918 (N.D. 19839) ......... 25

Myseros v. Sissler, 387 S.E.2d 463 (Va. 1990) ...........00000 25

Nelson v. Industrial Comm'n, 656 P.2d 1230 (Ariz.

TET cocssremasnncnsneeipistensemipensennneianinnmte _ 12

Nutt v. A.C.&S., Inc., 466 A.2d 18 (Super. Ct. 1983),

ee a ae ee ccctirerrcencemnninenem 17

O’Banien v. Owens-Corning Fiberglas Corp., 968

ce eee 17

Olivero v. Lowe, 995 P.2d 1023 (Nev. 2000) 200... 25

Pankopf v. Hinkley, 123 N.W. 625 (Wis. 1909) ................ 24

Pierce v. Johns-Manville Sales Corp., 464 A.2d

SITES SII snrstsrniinttaneteeeriinenesetnnenetenenrennmeees 12

Potts v. Celotex Corp., 796 S.W.2d 678 (Tenn. 1990) ....... 12

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

(Minn. 1892) ..............0.0000 24

Pustejouvsky v. Rapid-American Corp., 35 S.W. 3d 643

(Tex. 2000) ...... ° 12

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

1996) ........ 12, 16, 17, 19

Simone v. Rhode Island Co., 66 A. 202 (R.I. 1907) ......... 24

Sinkler v. Missouri Pac. R.R., 356 U.S. 326 (1958) ........ 7

Sopha v. Owens-Corning Fiberglas Corp., 601 N.W. 2d

627 (Wis. 1999) ........ - 12

St. Louis S.W. Ry. v. Dickerson, 470 US. 409 (1985) . _ 7

Stewart v. Arkansas S. R.R., 36 So. 676 (La. 1904) ......... 24

Stillson v. Peterson & Hede Co., 454 N.W.2d 430

(Minn. 1990) 12

Swerdlick v. Koch, 721 A.2d 849 (R.I. 1998) 25

VII

Cases—Continued: Page

Temple-Inland Forest Prods. Corp. v. Carter, 993

ee , CI cccnrrescestsceserseeiecennmmnenn 2

Tiller v. Atlantic Coast Line R.R., 318 US. 54

TEED cccnerssenserenpatasmanentinpnpaiariinaimanaiainiatiapmenimneneemmeen 6

Thorpe v. State, 575 A.2d 351 (N.H. 1990) .vcccsccssssesseeese 25

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

EET A RT OES HEE Eee ee A 25

United States v. Kubrick, 444 US. 111 (1979) ................. 2

Urie v. Thompson, 337 U.S. 163 (1949) .......cccccecerererereneees 2, 6-7

Villareal v. State, 774 P.2d 213 (Ariz. 1989) .................. 25

Watson v. Dilts, 89 N.W. 1068 (Lowa 1902) ..............c0008 24

White v. Mercury Marine, Div. of Brunswick, Inc.,

129 F.3d 1428 (Lith Cir. 1907) .......cccccrecccscsessccssecsscseseseesesees 1-2

Wilber v. Owens-Corning Fiberglas Corp., 476 N.W. 2d

a aren cade ae erat icaremeaeeies 12

Wilson v. Johns-Manville Sales Corp., 684 F.2d 111

EE 12

Statutes:

Federal Employers’ Liability Act, 45 U.S.C. 51 et seq.:

eS Tn 6, 7,15

OT 7

Federal Tort Claims Act, 28 U.S.C. 2671 et 8g. ........00:000+ 2

Jones Act, 46 U.S.C. App. G88 ...........cccccscscsssesssscsssssessesenesesess l

Miscellaneous:

A. Churg & F. Green, Pathology of Occupational

Leung Disease (2d ed. 1998) .ecceccceccsesssssssesssvsssseseeseeeeeeeeseees 11

D. Dobbs, The Law of Torts (2000) ...........ceseseeesererererenesenees 20

R. Doll & J. Peto, Effects on Health of Exposure to

ED iccsttintaininninenipnemanmeniieimmnmtenees 11

Prosser on Torts (Sth ed. 1984) ..........cc.cccceseesenseeeeereeeeneeees 20, 24

Restatement (Second) of Torts (1965) 2.0.0... 20, 21, 24

2 Stein on Personal Injury Damages (3d ed. 1997) ........... 13

In the Supreme Court of the Gunited States

No. 01-963

NORFOLK & WESTERN RAILWAY COMPANY,

PETITIONER

Vv.

FREEMAN AYERS, ET AL.

ON WRIT OF CERTIORARI

TO THE CIRCUIT COURT OF KANAWHA COUNTY,

WEST VIRGINIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents important questions arising under

the Federal Employers’ Liability Act (FELA) that

involve the interpretation of evolving principles of

federal common law concerning limitations on emotional

distress damages. The United States has a substantial

interest in the resolution of those questions because the

Court’s disposition of this case may impact the govern-

ment’s liability under federal statutes, most notably the

Jones Act, 46 U.S.C. App. 688, which “adopts ‘the entire

judicially developed doctrine of liability’ under

[FELA],” American Dredging Co. v. Miller, 510 U.S.

443, 456 (1994) (quoting Kernan v. American Dredging

Co., 355 U.S. 426, 439 (1958), and general maritime law,

see, e.g., White v. Mercury Marine, Div. of Brunswick,

(1)

2

Inc., 129 F.3d 1428, 1432 (11th Cir. 1997) (noting the

relevance of federal-law precedents in determining

scope of liability in federal admiralty law). The Court’s

decision in this case may also substantially affect the

government’s liability in cases under the Federal Tort

Claims Act, 28 U.S.C. 2671 et seq., particularly in toxic-

tort claims against the government. Although FTCA

claims are based on state rather than federal law,

courts have looked to FELA cases in determining when

injuries accrue under the FTCA, see, e.g., United States

v. Kubrick, 444 U.S. 111, 121 n.7 (1979) (noting several

courts of appeals had applied the accrual approach

adopted under FELA in Urie v. Thompson, 337 U.S.

163 (1949), to FTCA cases), and, more broadly, have

looked to this Court’s FELA decisions in assessing

liability under state law. See, e.g., Fulmore v. CSX

Transp., Inc., 557 S.E.2d 64, 75 (Ga. Ct. App. 2001)

(rejecting “fear of cancer” claim under FELA and state

law where evidence only established asbestosis, be-

cause “(uJnder Georgia law, and the United States

Supreme Court’s ruling in [Metro-North Commuter

R.R. v. Buckley, 521 U.S. 424 (1997)], a plaintiff may

not recover for emotional distress arising from a fear of

contracting a disease until he begins to manifest

symptoms of the disease”) Temple-Inland Forest

Prods. Corp. v. Carter, 993 S.W.2d 88, 92-93 (Tex. 1999)

(relying in part on Buckley to deny recovery under

state law for emotional distress damages from mere

exposure to asbestos); Hinton v. Monsanto Co., 813 So.

2d 827, 830-831 (Ala. 2001) (relying on Buckley in

rejecting medical monitoring ciaim under state law in

the absence of injury or illness). In addition, the gov-

ernment has a general concern for the proper appli-

cation of tort law principles under federal common law

and for the proper application of FELA.

3

STATEMENT

1. Respondents, six retired employees of petitioner

Norfolk & Western Railway Company, brought this

action under FELA in West Virginia state court. They

alleged that the railroad negligently failed to provide

them with a reasonably safe workplace and thereby

caused their exposure to asbestos and other dusts. As

part of their damages, respondents sought recovery for

emotional distress based upon their concern that their

exposure to asbestos might cause them to contract

cancer in the future.

At trial, the parties contested whether the railroad

had been negligent and whether respondents had sus-

tained an asbestos-related health condition. See J.A.

430-31, 449. There was also evidence that several of the

respondents had been exposed to asbestos over ex-

tended time periods while working for other employers.

See, e.g., J.A. 257-259 (respondent Butler), 236-237 (re-

spondent Ayers).

Petitioner also contested whether the respondents

had suffered any compensable emotional distress based

upon a fear of developing cancer in the future. In sup-

port of their claim for such damages, some of respon-

dents testified that they were concerned about develop-

ing cancer based on their exposure to asbestos. No

respondent testified that he sustained severe emotional

distress or fear or that he had experienced any physical

harm resulting from cancer-related concerns. See,

e.g., J.A. 277 (respondent Ayers), 298-299 (respondent

Shirley), 255 (respondent Butler), 116-117 (respondent

Vance), 332 (respondent Johnson).

The trial court instructed the jury that it could not

“award damages * * * for cancer or for any increased

risk of cancer” because no respondent presented evi-

4

dence that he “has cancer or that he will, with rea-

sonable certainty develop cancer in the future.” J.A.

573. Nevertheless, the court instructed the jury that it

was free to award damages for fear of cancer:

You have heard a great deal of testimony regarding

cancer and increased risk of cancer. This testimony

is relevant only to judge the genuineness of plain-

tiffs’ claims of fear of developing cancer. As an inte-

gral part of damages for mental! pain and suffering,

any plaintiff who has demonstrated that he has de-

veloped a reasonable fear of cancer that is related to

proven physical injury from asbestos is entitled to

be compensated for that fear as a part of the dam-

ages you may award for pain and suffering.

Ibid. The jury returned a verdict in favor of respon-

dents and awarded them a collective sum of $5,810,606

against the railroad. Jd. at 486-508.

2. The trial court upheld the jury’s verdict and

entered an order for respondents on February 14, 2001.

Petitioner sought discretionary review by the West

Virginia Supreme Court, but its petition for review was

denied without comment on October 4, 2001.

SUMMARY OF ARGUMENT

Respondents in this case, former railroad workers

who were exposed to asbestos dust while employed by

petitioner, were awarded substantial emotional distress

damages based on an asserted (and unsubstantiated)

concern that they might develop cancer at some point in

the future. Although there was evidence that respon-

dents had developed “asbestosis (or, in any event, some

‘occupational pneumoconios[is]’),” Br. in Opp. 21, a dis-

tinct and less threatening disease caused by exposure

to asbestos than cancer, it is undisputed that none of

5

the respondents has cancer or has developed any symp-

toms related to cancer. See J.A. 573.

Under both established common-law principles and

this Court’s decisions in Consolidated Rail Corp. v.

Gottshall, 512 U.S. 532 (1994), and Metro-North Com-

muter Railroad v. Buckley, 521 U.S. 424 (1997), respon-

dents cannot recover emotional distress damages under

FELA for the mere fear of developing cancer in the

future. FELA permits recovery for emotional injuries

associated with physical injuries actually suffered, but

not for the anxiety associated with future injuries that

the plaintiff may or may not suffer. Asbestosis, the

only disease respondents claim to have at this time, is a

distinct and entirely separate disease from cancer, and

although both may stem from the same exposure to

asbestos, asbestosis is not causally linked to cancer and

does not evolve into cancer. Accordingly, any increased

risk of cancer or associated fear is not related to the

physical injury that permits respondents to sue. This

does not mean that respondents cannot recover their

damages, including emotional distress damages, in the

event they develop cancer. Under established common

law principles, a party can recover for any emotional

injuries related to cancer in a separate action brought

after the cancer actually develops. In other words, as in

Buckley, the question is not whether damages for fear

of cancer may be recovered, but when. And recovery

for such damages in this suit, as in Buckley, is prema-

ture.

In addition, “fear” experienced long after the ex-

posure based on what this Court has characterized as

“controversial and uncertain” statistical information

fails to satisfy the common law’s requirements that

emotional harm, to be recoverable, must be both “se-

vere” and the result of “immediate trauma.” Moreover,

6

at a minimum, any such fear would have to satisfy the

common law’s requirement that only severe emotional

injuries with some corroborating physical manifestation

(which respondents did not prove at trial) may be

recoverable. Accordingly, the state court judgment

awarding damages for respondents’ asserted cancer-

related fears should be reversed.’

ARGUMENT

RESPONDENTS MAY NOT RECOVER UNDER FELA

FOR THEIR ASSERTED FEAR OF DEVELOPING

CANCER IN THE FUTURE

Section 1 of FELA provides that every common

carrier by railroad that engages in interstate commerce

“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 em-

ployees of such carrier.” 45 U.S.C. 51. Congress en-

acted FELA in 1908 to “shift{] part of the ‘human over-

head’ of doing business from employees to their em-

ployers,” Gottshall, 512 U.S. at 542 (quoting Tiller

v. Atlantic Coast Line R.R., 318 U.S. 54, 58 (1943)),

and thus in enacting the statute Congress was “focused

primarily upon injuries and death resulting from acci-

dents on interstate railroads,” ibid. (quoting Urie v.

' The United States will not address the second question on

which the Court granted certiorari concerning whether apportion-

ment or joint and several liability is proper under FELA. It notes,

however, that the Court’s resolution of that question in the

FELA context need not apply to other federal statutes, such as

CERCLA, where both the structure and purposes of the underly-

ing statutory scheme may differ substantially from those of FELA

in ways that may be directly relevant to the propriety of joint and

several liability.

7

Thompson, 337 U.S. 163, 181 (1949)). In furtherance of

those “humanitarian” purposes, “Congress did away

with several common-law tort defenses that had effec-

tively barred recovery by injured workers.” bid. Most

notably, FELA “abolished the fellow servant rule”;

“rejected the doctrine of contributory negligence in

favor of * * * comparative negligence”; “prohibited

employers from exempting themselves from FELA

through contract”; and, after a 1939 amendment, “abol-

ished the assumption of risk defense.” Jd. at 542-543;

see 45 U.S.C. 51, 53- 55.

“Only to the extent of these explicit statutory altera-

tions,” however, “is FELA ‘an avowed departure from

the rules of the common law.” Gottshall, 512 U.S. at

544 (quoting Sinkler v. Missouri Pac. R.R., 356 U.S.

326, 329 (1958)). Thus, “unless [common-law principles]

are expressly rejected in the text of the statute, they

are entitled to great weight in [the Court’s] analysis.”

Ibid.; see also ibid. (“Because FELA is silent on the

issue of negligent infliction of emotional distress,

common-law principles must play a significant role in

our decision.”); id. at 551 (“(BJecause negligent infliction

of emotional distress is not explicitly addressed in the

statute, the common-law background of this right of

recovery must play a vital role in giving content to the

scope of an employer’s duty under FELA to avoid

inflicting emotional injury.”). Accordingly, notwith-

standing FELA’s general humanitarian purposes, Con-

gress did not intend FELA to be “a workers’ com-

pensation statute,” id. at 543, and FELA “does not

make the employer the insurer of the safety of his

employees while they are on duty,” ibid. (quoting Ellis

v. Union Pac. R.R., 329 U.S. 649, 653 (1947)); see St.

Louis S.W. Ry. v. Dickerson, 470 U.S. 409, 411 (1985).

8

A. FELA Does Not Allow Recovery Of Damages For

Emotional Distress Stemming From The Mere

“Fear” of Developing Cancer

1. This Court’s Precedents Limit The Availability Of

Emotional Distress Damages Under FELA

In Gottshall, this Court addressed whether (and if so,

under what standard) recovery for negligent infliction

of emotional distress is available under FELA. After

finding the text of the statute silent on the question, the

Court reviewed the common law rules governing re-

covery for negligently inflicted emotional distress, with

particular emphasis on the common-law rules that

existed in 1908, when FELA was enacted. See 512 U.S.

at 546-548, 554-556. The Court emphasized that, be-

cause “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,” courts have placed “substantial limita-

tions” both on “the class of plaintiffs that may recover

for emotional injuries and on the injuries that may be

compensable.” Jd. at 546 (citing authorities).

The Court in Gottshall concluded that emotional dis-

tress damages were available under FELA. But it held

that the common law “zone of danger” test, which limits

emotional injury to those plaintiffs who either sustain a

contemporaneous physical impact as a consequence of a

defendant’s negligence or “are placed in immediate risk

of physical harm by that conduct,” 512 U.S. at 547-548,

“best reconciles the concerns of the common law with

the principles underlying [the Court’s] FELA juris-

prudence,” id. at 554. The Court reasoned that the zone

of danger test “is consistent with FELA’s central focus

on physical perils,” because it permits railroad em-

ployees “to recover for injuries—physical and emotional

9

—caused by the negligent conduct of their employers

that threatens them imminently with physical impact.”

Id. at 555, 556 (emphases added). Thus, the Court

concluded, the rule “will further Congress’ goal in

enacting the statute of alleviating the physical dangers

of railroading.” Jd. at 556. The Court identified three

“policy grounds” that led common-law courts to adopt

the zone of interest test—namely, “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.” /d. at

557. The Court found these policy grounds “well

founded” and sufficient to limit the scope of emotional

distress damages under FELA. [bid.

This Court further clarified the limitations on emo-

tional distress claims under FELA in Metro-North

Commuter Railroad v. Buckley, where it held that a

railroad employee negligently exposed to asbestos but

without symptoms of any disease could not recover

under FELA for negligently inflicted emotional dis-

tress, including damages for fear of cancer. 521 U.S. at

427; 430. In evaluating facts substantially similar to

those here, the Court concluded that the zone of danger

test’s “physical impact” requirement is not satisfied by

“simple physical contact with a substance that might

cause a disease at a substantially later time—where

that substance, or related circumstance, threatens no

harm other than that disease-related risk.” Jd. at 430;

id. at 432 (Gottshall’s language and cited precedent “in-

dicate that the words ‘physical impact’ * * * do not

include a contact that amounts to no more than an expo-

sure * * * toa substance that poses some future risk

of disease and which contact causes emotional distress

only because the worker learns that he may become ill

after a substantial period of time.”).

10

The Court emphasized that Gottshali had “cited

many state cases in support of its adoption of the ‘zone

of danger’ test,” each of which “involved a threatened

physical contact that caused, or might have caused,

immediate traumatic harm.” 521 U.S. at 430 (emphasis

added). Moreover, the Gottshall Court repeatedly ex-

plained that its adoption of the zone of interest test was

based in part on the appropriateness of limiting

recovery to damages closely tied to immediate physical

harms. /d. at 431-433 (quoting, inter alia, Gottshall, 512

U.S. at 555 (“zone of danger test * * * is consistent

with FELA’s central focus on physical perils”); id. at

556 (employer should be liable for “emotional injury

caused by the apprehension of physical impact”)). And

while Buckley recognized that many courts “permit a

plaintiff who suffers from a disease to recover for re-

lated negligently caused emotional distress,” the Court

also noted that those courts generally reject recovery

for plaintiffs who “are disease and symptom free.” /d.

at 432 (emphasis added; citing cases).

In addition, the Buckley Court held that the three

“general policy reasons to which Gottshall referred” all

counseled against allowing recovery for the fear of

cancer associated with mere exposure to asbestos. 521

U.S. at 433. In particular, the Court pointed to the

“special ‘difficult([y] for judges and juries’ in separating

valid, important claims from those that are invalid or

‘trivial’”; “a threat of ‘unlimited and unpredictable li-

ability”; and “the ‘potential for a flood’ of comparatively

unimportant, or ‘trivial,’ claims.” Jbid. (quoting Gott-

shall, 512 U.S. at 557).

The Court’s reasoning in Gottshall and Buckley pre-

cludes recovery of emotional distress damages under

FELA for the mere fear of contracting cancer, absent

any evidence that the plaintiff has developed cancer or

11

a symptom related to cancer. Buckley, in particular,

makes clear that fear of developing cancer in the future

does not justify the recovery of emotional injury dam-

ages for that present fear. This case differs from

Buckley only in that respondents here put forward

some medical evidence, which the jury apparently

credited, that in addition to being exposed to asbestos

they had developed asbestosis. For several reasons,

however, that distinction does not permit the current

recovery of emotional distress damages under FELA

for the fear of contracting cancer in the future.

2. FELA Does Not Permit “Fear Of Cancer” Claims

Before A Plaintiff Has Developed Cancer

Asbestosis is a distinct disease from cancer, and the

generally-accepted medical view is that asbestosis is

not causally related to cancer and does not itself de-

velop into cancer. See, eg., A. Churg & F. Green,

Pathology of Occupational Lung Disease 312 (2d ed.

1998) (describing asbestos-related diseases as a “dispa-

rate set of diseases with different epidemiological,

pathogenic, pathologic, and prognostic features”); R.

Doll & J. Peto, Effects on Health of Exposure to

Asbestos 2 (1985); see also Kilpatrick v. Department of

Labor, 883 P.2d 1370, 1375 (1994), amended 915 P.2d

519 (Wash. 1995) (“Each asbestos-related disease in-

volves a unique pathology * * * and is not, in fact, an

aggravation or continuation of a different asbestos-

related condition.”); Eagle-Picher Indus., Inc. v. Cox,

481 So.2d 517, 522 n.7 (Fla. Dist. Ct. App. 1985) (“asbes-

tosis and cancer can be * * * considered distinct sib-

ling diseases parented by the same cause”); Marinari v.

Asbestos Corp., Ltd., 612 A.2d 1021, 1025 (Pa. Super. Ct.

1992) (“Each of the diseases, i.e., pulmonary asbestosis,

asbestos-related pleural disease, lung cancer, and

12

mesothelioma, is recognized as a separate, and distinct

disease.”) (citing authorities). Indeed, the majority of

jurisdictions have adopted a “separate disease” rule in

asbestos cases, which treats asbestosis and other non-

malignant, asbestos-related diseases as separate and

unrelated to later-developed malignant diseases such as

lung cancer and mesothelioma for statute of limitations

purposes. See, e.g., Simmons v. Pacor, Inc., 674 A.2d

232, 237 (Pa. 1996) (Pennsylvania follows “the majority

of jurisdictions which ha[ve] adopted this ‘two disease

rule’ or ‘separate disease rule’ in asbestos exposure

cases”) (citing Marinari, 612 A.2d at 1023) (collecting

cases)); Wilson v. Johns-Manville Sales Corp., 684 F.2d

111, 117 (D.C. Cir. 1982) (opinion by Ginsburg, J.)

(rejecting notion that a plaintiff could sue “not only for

asbestosis, but for consequences that might develop

later, including separate and distinct illnesses such as

mesothelioma or another form of cancer”).* Under this

separate disease rule, “recovery can be had in a first

action only for a disease which has already manifested

itself from the exposure to asbestos and the natural,

predictable progression, if any, of that disease. If addi-

2 See also, e.g., Nelson v. Industrial Comm'n, 656 P.2d 1230

(Ariz. 1982); Hamilton v. Asbestos Corp., 998 P.2d 403 (Cal. 2000);

Miller v. Armstrong World Indus., Inc., 817 P.2d 111 (Colo. 1991);

Wilber v. Owens-Corning Fiberglas Corp., 476 N.W.2d 74 (lowa

1991); Carroll v. Owens-Corning Fiberglas Corp., 37 S.W.3d 699

(Ky. 2000); Pierce v. Johns-Manville Sales Corp., 464 A.2d 1020

(Md. 1983); Larson v. Johns-Manville Sales Corp., 399 N.W.2d 1

(Mich. 1986); Stillson v. Peterson & Hede Co., 454 N.W.2d 430

(Minn. 1990); Devlin v. Johns-Manville Corp., 495 A.2d 495 (NJ.

Super. Law Div. 1985); Fusaro v. Porter-Hayden Co., 548 N.Y.S.2d

856 (Sup. Ct. 1989); Potts v. Celotex Corp., 796 S.W.2d 678 (Tenn.

1990); Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643 (Tex.

2000); Kilpatrick, 883 P.2d 1370 (Wash. 1994); Sopha v. Owens-

Corning Fiberglas Corp., 601 N.W.2d 627 (Wis. 1999).

13

tional injuries from a separate disease manifest them-

selves in the future, such injuries will support a second

action.” Marinari, 612 A.2d at 1023 (emphasis added);

see 2 Stein on Personal Injury Damages § 9:16 (3d ed.

1997) (“With respect to non-malignant asbestos dis-

eases and cancer caused by exposure to asbestos, a

number of courts have adopted the ‘two disease’ rule,”

wherein “recovery is first available only for a disease

that has already manifested itself from exposure to

asbestos, plus the natural, predictable progression of

that disease, and then if cancer develops in the future, a

second action may be brought.”).

Because there is no established causal relationship

between asbestosis and cancer—i.e., because they are

distinct diseases—the fact that respondents may have

developed asbestosis from their exposure to asbestos

dust does not entitle them to emotional damages for

their fear of developing the separate and distinct

disease of cancer. As this Court explained in Buckley,

courts have permitted recovery for emotional injuries

to a plaintiff who suffers from a disease, but such

recovery must be limited to emotional injuries that are

related to that disease. 521 U.S. at 432 (common-law

courts “do permit a plaintiff who suffers from a disease

to recover for related negligently caused emotional dis-

tress”) (emphasis added). The only relationship be-

tween the asbestosis respondents claim they have now

and the cancer they fear they may develop in the future

is that both may stem from the same exposure to asbes-

tos dust. But, that is not a clear enough relationship for

a plaintiff to recover as part of his damages for the first

disease his anxiety about the possibility of developing

the second distinct disease in the future. Buckley

makes clear that mere exposure is not a sufficient basis

14

to permit the recovery for emotional injuries related to

diseases not yet suffered. Jd. at 430, 432.

To be sure, the Court in Buckley confronted a case in

which the plaintiffs had suffered only exposure to

asbestos, and no disease resulting from that exposure

had developed. In ruling that exposure alone did not

entitle a plaintiff to recovery, the Court distinguished

cases in which the plaintiffs had suffered some injury

and even noted one state lower-court case that allowed

recovery of emotional injuries related to asbestosis.

See 521 U.S. at 437 (citing Lavelle v. Owens-Corning

Fiberglas Corp., 507 N.E.2d 476 (Ct. C.P., Cuyahoga

Cty., Ohio 1987)).* But the language and logic of

Buckley clearly preclude a rule allowing recovery for

the fear of contracting a distinct disease in the future

based only on the actual contraction of a different dis-

ease at present. In stating the commen-law rule, the

Court noted that courts permit “a plaintiff who suffers

from a disease to recover for related negligently caused

emotional distress.” 521 U.S. at 582 (emphasis added).

The relatedness requirement is critical because other-

wise any physical injury, no matter how slight, would

’ Respondents’ reliance on the Buckley Court’s citation to

Lavelle (Br. in Opp. 21) is misplaced. The Buckley Court referred

to Lavelle only to demonstrate that courts generally had not ex-

tended emotional distress damages to plaintiffs, like those in

Buckley, who had suffered no disease or other injury at all. That

reference should not be read as an endorsement of Lavelle’s

reasoning, which in fact is flatly contrary to the Court’s holdings in

Buckley and Gottshall. See 507 N.E.2d at 479-481 (permitting fear

of cancer evidence on alternative grounds that (1) “[mJodern tort

law” permits recovery for emotional damages without any proof of

physical injury (a proposition rejected in Gottshall), and (2) that

any requirement of a “physical impact” was satisfied by the expo-

sure to asbestos fibers (a proposition rejected in Buckley)).

—_ -— — _ — —_

15

serve as a gateway for the recovery of fear stemming

from any increased risks associated with the exposure.

However, the whole thrust of Buckley is that exposure

is an insufficient basis for allowing recovery for fears

stemming from exposure and that compensation should

be directed to the few who actually contract the

disease, rather than the many who fear they will

contract it. Moreover, all the policy concerns that led

the Court in Buckley to reject fear of cancer claims

based on mere exposure also support rejecting fear of

cancer claims based on the present suffering of a

distinct injury. See Part A.3., infra.

The distinction between damages for the fear of con-

tracting cancer in the future and the emotional injuries

from a present case of asbestosis draws support from

FELA’s text. FELA authorizes suit by “any person

suffering injury.” 45 U.S.C. 51 (emphasis added). The

text clearly focuses on present injuries, rather than on

risks of future injuries. It does not permit suits by “any

person at risk of suffering injury” or “any person who

fears they will suffer an injury.” Indeed, Congress

targeted the railroad industry in FELA, in part, based

on a recognition of the risks inherent in the industry.

Nonetheless, Congress developed a scheme to com-

pensate only those for whom the risks became a reality

in the form of actual injuries.

FELA’s preference for compensating injuries that

have been suffered underscores that this case, like

Buckley, involves when, not whether, individuals who

actually contract cancer should recover for their cancer-

related emotional injuries. Plaintiffs who currently

suffer asbestosis can recover their damages from that

disease, including their emotional injuries. If they later

- contract asbestos-related cancer, they can then recover

16

for their damages from that distinct disease, once again

including their emotional injuries.‘

Moreover, the well-established “separate disease

rule” strongly supports limiting recovery for fear of

developing cancer to cases where cancer actually devel-

ops. As the Pennsylvania Supreme Court explained in

Simmons v. Pacor, Inc., a case this Court relied upon in

Buckley: “It is in [a later action for cancer] that

[plaintiffs] can assert their emotional distress or mental

anguish claims [related to cancer]. To allow the asbes-

tos plaintiff in a non-cancer claim to recover for any

part of the damages relating to cancer, including the

fear of contracting cancer, erodes the integrity of and

purpose behind the two disease rule.” 674 A.2d at 239;

see Cleveland v. Johns-Manville Corp., 690 A.2d 1146,

1150 n.10 (Pa. 1997) (“If cancer later develops, a plain-

tiff can bring a second action to recover for the cancer

and all of the past, present and future emotional

distress or mental anguish associated with the cancer,

including fear of contracting cancer.”).°

* Whatever difficulties there may be in determining the precise

scope of the emotional injuries stemming from the disease of asbes-

tosis, one thing that clearly does not flow from the injury of the

disease of asbestosis is the fear of suffering a distinct disease at a

future date.

° Notably, although the Court in Buckley held that a disease (or

symptoms of a disease) is a prerequisite for any recovery for

emotional injuries stemming from an alleged exposure to a disease-

causing substance, it did not address application of tort rules

governing how such injuries might be recovered when a disease in

fact manifests. Thus, the Court did not address whether fear of

cancer is only recoverable as an element of pain and suffering from

the cancer itself, or whether it may also be recoverable through a

separate action for negligent infliction of emotional distress based

on diseases or symptoms unrelated to cancer. That question has

caused considerable confusion in the lower federal and state courts.

17

3. Recognition Of Fear Of Cancer Damages Where

No Cancer Has Developed Is Inconsistent With

Important Common-Law Policy Concerns And The

Purposes Of FELA

The three principal policy considerations identified

by this Court in Gottshall and Buckley—‘special

‘difficult{y] for judges and juries’ in separating valid,

important claims from those that are invalid or ‘trivial’;

“a threat of ‘unlimited and unpredictable liability’”; and

“the ‘potential for a flood’ of comparatively unimpor-

tant, or ‘trivial,’ claims,” Buckley, 521 U.S. at 433 (quot-

ing Gottshall, 512 U.S. at 557)—militate strongly in

favor of permitting recovery under FELA for the

“fear” of developing cancer only in connection with an

action based on the actual development of cancer.

First, permitting recovery for such emotional injuries

in the absence of an actual instance of cancer (or even a

While some courts have permitted recovery based on the existence

of a distinct injury other than cancer, see, e.g., Cox, 481 So. 2d at

526 (permitting recovery for fear of cancer for plaintiff diagnosed

with asbestosis); Jackson v. Johns-Manville Sales Corp., 781 F.2d

394, 413-415 (5th Cir.) (en banc) (same), cert. denied, 478 U.S. 1022

(1986); Herber v. Johns-Manville Corp., 785 F.2d 79, 83-85 (3d Cir.

1986) (same for plaintiff with pleural thickening), others have

rejected such claims as speculative and inconsistent with the zone

of danger test, see, e.g., Simmons v. Pacor, Inc., 674 A.2d 232, 237

(Pa. 1996) (limiting fear of cancer claims, regardless of existence of

other distinct asbestos-related diseases, to cases in which cancer

actually manifests); Nutt v. A.C. & S., Inc., 466 A.2d 18, 24 (Super.

Ct. 1983), aff'd, 480 A.2d 647 (Del. 1984) (holding “nature of asbes-

tos related injury * * * is clearly incompatible with the traumatic

event requirement for recovery of mental anguish”); O’Banion v.

Owens-Corning Fiberglas Corp., 968 F.2d 1011, 1013 (10th Cir.

1992) (rejecting fear of cancer claim as “speculative” under Okla-

homa law). For the reasons set forth herein, fear of cancer claims

should only be recoverable under FELA as an element of pain and

suffering for the cancer itself.

18

symptom of cancer) presents the same “special [eviden-

tiary] ‘difficult{ies] for judges and juries’” that led the

Court in Buckley to reject fear of cancer claims in the

absence of any asbestos-related disease. 521 U.S. at

433. Such claims “are far less susceptible to objective

medical proof” and are based on subjective emotional

reactions to questionable statistical information con-

cerning the increased likelihood of developing cancer,

which itself is further complicated by the fact that “con-

tacts, even extensive contacts, with serious carcinogens

are common” in our society. Jd. at 434-435 (citations

omitted). Moreover, it is virtually impossible to “de-

termine from the external circumstance of exposure

whether, or when, a claimed strong emotional reaction

to an increased mortality risk * * * is reasonable and

genuine, rather than overstated—particularly when the

relevant statistics themselves are controversial and

uncertain * * *, and particularly since neither those

exposed nor judges or juries are experts in statistics.”

Id. at 435. The external circumstance of suffering a

distinct disease (which simply corroborates the expo-

sure), in addition to exposure, does not solve these

difficulties.

Second, “fear of cancer” liability unfettered from

actual instances of cancer would present the problem of

“unlimited and unpredictable liability” that concerned

the Court in Buckley. 521 U.S. at 435-436; see

Gottshall, 512 U.S. at 557. Judges and juries have

substantial experience ascertaining damages for actual

injuries already suffered. Although damages for

emotional injuries are more difficult to estimate, the

extent of such damages is a historical fact that can be

assessed and given some measure of predictability.

But, as this Court noted in Buckley, juries would be

almost wholly unguided in assessing the damages

19

caused by a slight increase in the risk of contracting

cancer in the future associated with contracting a

distinct disease.

Third, fear of cancer liability could likewise produce a

flood of relatively trivial cases. Although not every

exposure to asbestos results in asbestosis, it is a much

more common disease than asbestos-related cancer.

Moreover, the logic of allowing recovery for a fear of a

distinct disease any time there is some injury would

suggest that any time a plaintiff could show an injury

beyond mere exposure, that injury would serve as a

gateway for fear of cancer claims. Consequently, such

liability could impose unreasonable costs on the public

and divert increasingly scarce resources away from

more deserving plaintiffs, thereby “diminish[ing] the

likelihood of recovery by those who later suffer from

the disease.” Buckley, 521 U.S. at 435-436; see Sim-

mons v. Pacor, 674 A.2d at 238 (“[DJamages for fear of

cancer * * * would lead to inequitable results since

those who never contract cancer would obtain damages

even though the disease never came into fruition. The

actual compensation due to the plaintiff can be more

accurately assessed when the disease has manifested.”).

Nothing in either the text or purposes of FELA war-

rants adoption of such a novel and potentially harmful

liability rule. See Buckley, 521 U.S. at 438 (“(I}f the

common law concludes that a legal rule permitting

recovery * * * would on balance cause more harm

than good, and if we find that judgment reasonable, we

cannot find that conclusion inconsistent with the

FELA’s humanitarian purpose.”).

20

4. Fears Based On Controversial Statistical Infor-

mation About Uncertain Increased Cancer Risks

Are Neither “Severe” Nor The Product Of “Imme-

diate Trauma” As The Zone Of Danger Test

Requires

Both Buckley and Gottshall recognized that common-

law courts permitted recovery of emotional distress

damages only where a plaintiff established a severe

emotional injury stemming from an immediate trauma.

Those requirements are not satisfied by an increased

fear of developing cancer in the future, even when

accompanied by a distinct injury at present.

This Court has recognized the common-law require-

ment that emotional injury must be “severe” in order to

be recoverable. “[SJevere emotional injury’ * * * has

generally been required to establish liability for purely

emotional injury.” Atchison, Topeka & Santa Fe Ry. v.

Buell, 480 U.S. 557, 566-567 n.13 (1987); see id. at 568-69

& nn.18 & 19; see also D. Dobbs, The Law of Torts § 308,

at 836-37 (2000) (“most courts hold that the plaintiff can

recover only if a normally constituted person would

suffer, and the plaintiff in fact suffered severe distress”)

(emphasis added); Prosser on Torts § 12, at 57 (5th ed.

1984) (same); cf. Restatement (Second) of Torts § 46(2)

& cmt. d (1965) (requiring that emotional injury for in-

tentional infliction claims must be “extreme” and “se-

vere”); Prosser on Torts, supra, § 54, at 360 (common

law’s skepticism of emotional distress claims “has of

course been more pronounced where the defendant’s

conduct is merely negligent”). Thus, in Gottshall, the

Court held that negligent infliction of emotional

distress claims were cognizable under FELA in part

because “severe emotional injuries can be just as

debilitating as physical injuries.” 512 U.S. at 550

21

(emphasis added; citation omitted); see also id. at 538

(noting court of appeals had determined that plaintiff's

emotional injuries were “genuine and severe”); id. at

562-564 (Ginsburg, J., dissenting) (describing plaintiffs’

emotional distress as “unquestionably genuine and

severe”). Similarly, in Buckley, the Court noted that

FELA’s purposes militate in favor of recovery for “a

serious ‘and negligently caused emotional harm.” 521

U.S. at 438 (emphasis added); see id. at 435 (mere con-

tacts with carcinogens should not lead to recovery

because “they may occur without causing serious emo-

tional distress”) (emphasis added).

It is equally clear that the common law only per-

mitted recovery of emotional injuries that were the

result of immediate traumatic harm. See Restatement

(Second) of Torts § 436 cmt. c. (1965) (“the emotional

disturbance must be the immediate result of the actor’s

negligent conduct”) (emphasis added); ibid. (“Subse-

quent brooding over the actor’s misconduct or the dan-

ger in which it had put the [plaintiff] is not enough.”);

see also id. § 436(2). Thus, after surveying the cases

relied upon in Gottshall for the adoption of the zone of

danger test, the Court in Buckley explained that “in

each case where recovery for emotional distress was

permitted, the case involved a threatened physical

contact that caused, or might have caused, immediate

traumatic harm.” 521 U.S. at 430-431 (emphasis added;

citing cases).° Indeed, the Court in Gottshall adopted

6 See, e.g., Garcia v. Burlington N. R.R., 904 P.2d 1085 (Or. Ct.

App. 1995) (“The zone of danger is a location in which the plaintiff

is at ‘immediate risk of physical harm.’”) (quoting Gottshall),

McMillan v. National R.R. Passenger Corp., 648 A.2d 428, 434

(D.C. 1994) (zone of danger rule requires plaintiff to show that his

physical safety was “imminently endangered”); Falzone v. Busch,

214 A.2d 12, 17 (N.J. 1965) (zone of danger test limits recovery to

22

the zone of danger test in large part because it limited

recovery to “injuries—physical and emotional—caused

by the negligent conduct of their employers that

threatens them imminently with physical impact.” 512

U.S. at 556 (emphasis added).

Emotional concern over developing cancer, even

where the plaintiff has developed some lesser asbestos-

related condition, fails to satisfy either the severity or

immediacy requirements. As the Court explained in

Buckley, the common law did not recognize emotional

distress damages stemming from “an exposure * * *

to a substance that poses some future risk of disease

and which contact causes emotional distress only be-

cause the worker learns that he may become ill after a

substantial period of time.” 521 U.S. at 432. Such

claims generally do not rise to the level of “severe”

emotional harm. Among other things, as the Court

noted in Buckley, “the relevant statistics [regarding

increased cancer risks] are controversial and uncer-

tain,” “extensive contacts” with “serious carcinogens

are common,” and “those exposed * * * are [not]

experts in statistics.” Jd. at 435.

Moreover, because the asserted emotional injury is

dependent upon after-acquired (and “controversial and

uncertain”) statistical information concerning the

nature and degree of the purported increased risk of

mortality, rather than a natural reaction to an immedi-

ate traumatic event, fear of cancer claims have no

antecedent at common law. Thus, courts—even those

applying the more liberal “relative bystander” test

rejected for FELA purposes by this Court in Gottshall

—have universally distinguished between plaintiffs

situations in which “negligence causes fright from a reasonable

fear of immediate personal injury”).

23

experiencing serious emotional injury from immediate

traumatic harm and those that experience similar emo-

tional injury based only on later-acquired knowledge.

See, e.g., Dillon v. Legg, 441 P.2d 912, 920 (Cal. 1968)

(requiring “direct emotional impact upon the plaintiff

from the sensory and contemporaneous observance” of

death or serious injury of close relative, in contrast to

learning “from others after its occurrence”); Asaro v.

Cardinal Glennon Mem’l Hosp., 799 S.W.2d 595, 599-

600 (Mo. 1990) (requiring that plaintiff be “at the scene

of an injury producing sudden|] event”); cf. Jansen v.

Children’s Hosp. Med. Ctr., 31 Cal. App. 3d 22, 24 (Ct.

App. 1973) (rejecting emotional distress claim based on

witnessing daughter’s slow, painful death because there

was no trauma from a “sudden and brief event”).

The Court in Buckley clearly recognized that fear of

cancer from exposure does not satisfy the common law’s

severity and immediacy requirements. The develop-

ment of a distinct disease from the exposure does not

alter that conclusion. The diagnosis of asbestosis may

confirm the exposure, but it does not create an immi-

nent risk of cancer. Asbestosis does not itself cause

cancer; rather, the exposure remains the potential

cause of any future cancer. Accordingly, the develop-

ment of asbestosis does not make the fear of cancer any

more immediate, nor does it convert a probabilistic risk

of future cancer into a current, severe physical trauma.

B. FELA Requires Corroborating Physical Mani-

festations Of Negligently Inflicted Emotional

Distress

At a minimum, the Court should hold that, consistent

with settled common-law principles, FELA requires a

plaintiff to show corroborating physical manifestations

of a negligently inflicted emotional injury. This Court

24

has already recognized that many courts apply a physi-

cal manifestation requirement for emotional injuries.

In Gottshall, for example, the Court observed that

“[mJany jurisdictions that follow the zone of danger or

relative bystander tests also require that a plaintiff

demonstrate a ‘physical manifestation’ of an alleged

emotional injury, that is, a physical injury or effect that

is the direct result of the emotional injury, in order to

recover.” 512 U.S. at 549 n.11; see also id. at 564

(Ginsburg, J., dissenting); cf. Buell, 480 U.S. at 567-570

n.22 (recognizing substantial difference between FELA

claims for “pure emotional injury” and those involving

“physical symptoms in addition to * * * severe psy-

chological illness”).

In fact, at the time of FELA’s enactment in 1908, the

requirement of corroborating physical manifestations

for emotional injuries was firmly established.’ And the

majority of zone-of-danger and relative-bystander

States, as well as the Second Restatement, still adhere

to that requirement. See Restatement (Second) of

Torts, supra, § 436A (requiring “bodily harm or other

compensable damage” to corroborate emotional injury);

id., cmt. ¢c (emotional injury must result in “substantial

bodily harm,” such as “long continued nausea” or “re-

peated hysterical attacks”); Prosser on Torts, supra,

§ 54, at 364 & n.55 (citing cases and noting “the great

majority of courts” require “that the mental distress be

* See Gulf, Colorado & Santa Fe Ry. v. Hayter, 54 S.W. 944,

945 (Tex. 1900); Mack v. South-Bound R.R., 29 S.E. 905, 908, 911

(S.C. 1898); Kimberly v. Howland, 55 S.E. 778, 780-781 (N.C. 1906);

Pankopf v. Hinkley, 123 N.W. 625, 627 (Wis. 1909); Purcell v. St.

Paul City Ry., 50 N.W. 1034, 1035 (Minn. 1892); Simone v. Rhode

Island Co., 66 A. 202, 203-04 (R.I. 1907); Stewart v. Arkansas S.

R.R., 36 So. 676, 677 (La. 1904); Watson v. Dilts, 89 N.W. 1068,

1069 (lowa 1902).

25

certified by some physical injury, illness or other objec-

tive physical manifestation”); Jones v. CSX Transp.

Corp., 287 F.3d 1341, 1347-1349 (11th Cir. 2002) (citing

cases).” In addition, as the Eleventh Circuit recently

noted, the physical manifestation requirement is also

supported by “the weight of authority” among federal

courts in FELA, Jones Act (which incorporates and

makes applicable to seamen the substantive recovery

provisions of FELA), and general maritime cases.

Jones, 287 F.3d at 1349-1350 (citing cases); accord Mar-

tinez v. Bally’s Louisiana, Inc., 244 F.3d 474, 477-478

(5th Cir. 2001) (Jones Act).

Thus, although the physical manifestation require-

ment, like the zone of danger standard adopted in

Buckley, has not been followed in all jurisdictions, it is

well-grounded in the common law and is consistent with

8 See Hancock v. Northcutt, 808 P.2d 251, 257-258 (Alaska

1991); Villareal v. State, 774 P.2d 213, 220 (Ariz. 1989); Towns v.

Anderson, 579 P.2d 1163, 1164-1165 (Colo. 1978) (en banc); Mergen-

thaler v. Asbestos Corp. of Am., 480 A.2d 647, 651 (Del. 1984);

Champion v. Gray, 478 So. 2d 17, 20 (Fla. 1985); Czaplicki v.

Gooding Jt. Sch. Dist., 775 P.2d 640 (Idaho 1989); Barnhill v.

Davis, 300 N.W.2d 104, 108 (lowa 1981); Anderson v. Scheffler, 752

P.2d 667, 669 (Kan. 1988); Beynon v. Montgomery Cablevision

L.P., 718 A.2d 1161, 1163 (Md. 1998); Daley v. LaCroix, 179 N.W.2d

390, 395 (Mich. 1970); Leaon v. Washington County, 397 N.W.2d

867, 875 (Minn. 1986); Olivero v. Lowe, 995 P.2d 1023, 1026 (Nev.

2000); Thorpe v. State, 575 A.2d 351, 353 (N.H. 1990); Muchow v.

Lindblad, 435 N.W.2d 918, 922 (N.D. 1989); McMeakin v. Roofing

& Sheet Metal Supply Co., 807 P.2d 288, 290 (Ct. App. 1990), cert.

denied, No. 72,580 (Okla. Mar. 19, 1991); Houston v. Texaco, Inc.,

538 A.2d 502, 505 (Pa. Super. Ct. 1988); Swerdlick v. Koch, 721

A.2d 849, 864 (R.I. 1998); Kinard v. Augusta Sash & Door Co., 336

S.E.2d 465 (S.C. 1985); Maryott v. First Nat'l Bank of Eden, 624

N.W.2d 96 (S.D. 2001); Hansen v. Mountain Fuel Supply Co., 858

P.2d 970, 975 (Utah 1993); Myseros v. Sissler, 387 S.E.2d 463 (Va.

1990).

26

the goals of FELA and the common-law policy concerns

that underlay this Court’s decisions in Gottshall and

Buckley. See Jones, 287 F.3d at 1348-1350. Most nota-

bly, the physical manifestation requirement will help

minimize the danger posed by the “unlimited and un-

predictable liability” associated with emotional distress

claims and will assist judges and juries in making the

“highly subjective determinations” necessary to “separ-

at(e] valid, important claims from those that are invalid

or trivial,” and thereby ensure that the limited avail-

able resources are directed first to the most deserving

claims. Buckley, 521 U.S. at 433-434 (citations omitted).

Here, the application of this test would require judg-

ment for petitioner as a matter of law. Respondents

offered no evidence of physical impairment to sub-

stantiate that they sustained any emotional harm based

on fear that they would get cancer in the future.

Indeed, in their own testimony, which appears to com-

prise the only evidence they presented on this point,

respondents never even stated that they experienced

fear or even anxiety about developing cancer but only a

generalized concern. See J.A. 277, 298-299, 255, 116-

117, 332; Pet. 8-9. Such a sparse showing does not begin

to satisfy the physical manifestation requirement (or

the other well-established common-law limitations on

- such damages discussed above).

27

CONCLUSION

The judgment of the circuit court of Kanawha

County, West Virginia should be reversed and re-

manded. .

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

DAVID B. SALMONS

Assistant to the Solicitor

General

ANTHONY J. STEINMEYER

PETER R. MAIER

Attorneys

JUNE 2002

APPENDIX

STATUTORY PROVISIONS INVOLVED

45 U.8.C.51. Liability of common carriers by rail-

road, in interstate or foreign com-

merce, for injuries to employees from

negligence; employee defined

Every common carrier by railroad while engaging in

commerce between any of the several States or Territo-

ries, or between any of the States and Territories, or

between the District of Columbia and any of the States

or Territories, or between 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 employed by such carrier in

such commerce, or, in case of the death of such em-

ployee, to his or her personal representative, for the

benefit of the surviving widow or husband and children

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 negli-

gence, in its cars, engines, appliances, machinery, track,

roadbed, works, boats, wharves, or other equipment.

Any employee of a carrier, any part of whose duties

as such employee shall be the furtherance of interstate

or foreign commerce; or shall, in any way directly or

closely and substantially, affect such commerce as

above set forth shall, for 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.

(la)

2a

45 U.S.C. 53. Contributory negligence; diminution of

damages

In all actions on and after April 22, 1908 brought

against any such common carrier by railroad under or

by virtue of any of the provisions of this chapter to

recover damages for personal injuries to an employee,

or where such injuries have resulted in his death, the

fact that the employee may have been guilty of contri-

butory negligence shall not bar a recovery, but the

damages shall be diminished by the jury in proportion -

to the amount of negligence attributable to such em-

ployee: Provided, That no such employee who may be

injured or killed shall be held to have been guilty of

contributory negligence in any case where the violation

by such common carrier of any statute enacted for the

safety of employees contributed to the injury or death

of such employee.

45 U.S.C. 56. Actions; limitation; concurrent juris-

diction of courts

No action shall be maintained under this chapter un-

less commenced within three years from the day the

cause of action accrued.

Under this chapter an action may be brought in a

district court of the United States, in the district of the

residence of the defendant, or in which the cause of

action arose, or in which the defendant shall be doing

business at the time of commencing such action. The

jurisdiction of the courts of the United States under

this chapter shall be concurrent with that of the courts

of the several States.