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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 135

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0533%3A11. Public record. Not legal advice.