Opposition Brief — Spence v. Norfolk Southern Railway Co.

/ Boprens Court, U.S.

RILUED

JU% G 94

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NO. 93-1781 vi We CLERK

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IN THE

United States Supreme Court

OCTOBER TERM, 1993

MICHAEL SPENCE,

Plaintiff-Petitioner,

vs.

NORFOLK SOUTHERN RAILWAY

COMPANY AND NORFOLK SOUTHERN

CORPORATION,

Defendants-Respondents.

APPEAL FROM THE GEORGIA SUPREME COURT

RESPONDENTS’ OPPOSITION TO PETITION

FOR WRIT OF CERTIORAI

EDGAR A. NEELY, JR

WILLIAM C. THOMPSON

Attorneys for Respondent

WILLIAM C. THOMPSON

NEELY & PLAYER

Suite 900

191 Peachtree Street, N.E.

Atlanta, Georgia 30303

(404) 681-2600

Counsel of Record

QUESTIONS PRESENTED

1. Whether a management-level employee of a

railroad, who has not suffered a physical work-related

injury, may pursue a claim under the Federal

Employers’ Liability Act for what he contends is a

nervous breakdown allegedly caused by the stressful

nature of his job?

2. Whether a claim for a mental injury may be

prosecuted under the Federal Employers’ Liability Act

when its symptoms and job-related cause were known

to the Petitioner more than three years prior to the filing

of his FELA lawsuit? L.e., is Petitioner’s claim barred by

the FELA limitations statute?

iia i

LIST OF AFFILIATED CORPORATIONS

Norfolk Southern Corporation

Norfolk Southern Railway Company

Norfolk & Western Railway Company

Alabama Great Southern Railroad Company, The

Atlanta and East Carolina Railway Company

Camp Lejeune Railroad Company

Central of Georgia Railroad Company

Chesapeake Western Railway

Cincinnati, New Orleans and Texas Pacific Railway

Company

Georgia Northern Railway Company, The

Georgia Southern and Florida Railway Company

Live Oak, Perry and South Georgia Railway Company

New Orleans Terminal Company

State University Railroad Company

Tennessee, Alabama and Georgia Railway Company

Tennessee Railway Company

North American Van Lines

Triple Crown Services, Inc.

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TABLE OF CONTENTS

Page

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List of Affiliated Corporations. ............:s:scseeeeeeeee: ii

EE iii

ennoncoonece iV,V,Vi

EEE vi

a. cs ccssunepecnvecs 1

Reasons Why the Writ Should Be Denied............. 3

I. Plaintiff has failed to present a claim

for either negligent or intentional

infliction of emotional distress ..................-..00+. 3

II. Petitioner’s claim is barred by the

EST 8

a .. nsnanensnconsnosones 10

I... ssnennbunscusooneneccsecs 12

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TABLE OF AUTHORITIES

CASES: PAGE

Armstrong v. Trico Marine, Inc.,

923 F.2d 55, SE-S9 ibs Cie, 1991) ....-ceccecccorcsveeceverevscvovevves 10

Atchison, Topeka & Santa Fe Ry. Co. v. Buell,

480 U.S. 557, 566 n. 13, 107 S.Ct. 1410.

1416 n. 13, 94 L.Ed. 2d S63 (1967) ....c.c.cecccrsceorcsersrseseeeees 3,5

Carlisle v. Consolidated Rail Corp.,

SE ae Fa ee Fe aikcicirnntettasescprasnmnereniiennetiontcationn 6

Crisman v. Odeco, Inc.,

932 F.2d 413, 416 (5th Cir.),

CONG, I, Te ee ee ED wivcerniiccirenticsseremnennenienianies 8

Dubose v. Kansas City Southern Ry. Co.,

729 F.2d 1026, 1029-30 (5th Cir.),

cart. Gamthad, GBB US. GEA CIGGD ssncnncccccnsereeveveveccsovecscsenones 8

Fries v. Chicago & Co. Transp. Co.,

909 F.2d 1092, 1096 (7th Cir. 1990) ...........c.scsecscsererseeeeees 10

Gottshall v. Consolidated Rail Corp.,

SS Fe Se Ge Fe iaitieentescccentcesnrecnsvnesesenvsccnrensenee 5,6

Gough v. Natural Gas Pipeline Company of America,

SG FAG FER, FO CU Ge, TOI rinrsciicescenstvencsenscsonvecneis 45

Handy v. Union Pacific R. Co.,

841 P.2d 1210 (Utah Appeals 1992)...........csssesecseseeeeeeees 7

iv

‘=

Holliday v. Consolidated Rail Corp.,

914 F.2d 421, 423-24 (3d Cir. 1990),

cert. denied 498 U.S. 1090 (1991).............ccsccrcccsrsscesecvseseee 7

Jones v. Maine Cent. R. Co.,

690 FSupp. 73 (D. Me. 1988)........ccscscscscrescsesererersoseseceseees 9

Kraus v. Consolidated Rail Corp.,

723 F.Supp. 1073, 1090 (E.D.Pa. 1989),

appeal dismissed 899 F.2d 1360 (3d Cir. 1990)...........:0ee00+ 6

Lewis v. Union Pacific R. Co.,

ar Fe Is FOE cries citerccesnsssntceninicncncaevereseneeta 7

McCoy v. Union Pacific R. Co.,

796 PA GAG GX. ADD. TIF) qccncccccecscccrereerecscsnesorevececeseoveses 9

Moody v. Boston & Maine Corp.,

EE Fe ig Oe te IE iertcesccnenerncseniegeensantnvereemenenncomneat 7

Norfolk Southern Railway Company v. Spence,

210 Ga. App. 284, 435 S.E.2d 680 (1993).......cecseerereneeees 3

OB-GYN Assoc. of Albany v. Littleton,

259 Ga. 663, 665, 386 S.E.2d 146 (1989) .........cscsceceseereneees 5

Puthe v. Exxon Shipping Co.,

802 F.Supp. 819, 829-30 (E.D.N.Y. 1992)

aff'd. other grounds 2 F.3d 480 (2d Cir. 1993)... 10

Ray v. Consolidated Rail Corp.,

938 F.2d 704, 705 (7th Cir. 1991),

ee MS ee TE . T 4

Robb v. CSX Transp., Inc.,

204 Ga. App. 690, 693, 420 S.E.2d 370 (1992) ........0000+ 8,9

United States v. Kubrick,

444 US. 111, 100 S.Ct. 352, 62 L.Ed. 2d 259 (1979) ......... 8

Urie v. Thompson,

337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) ............ 8

Yehia v. Rouge Steel Corp.,

898 F.2d 1178, 1184 (6th Cir. 1990) .................cccccssecesseeeeees 4

STATUTES:

45 USAC. GI .cccccersstvceiinensiidiamaaniia 3

£3 U SC.. BG ovscossseccicitenimmicma a 8,10

46 USC. GRID. .cccssessiasntiniaasniamaana ead 4

STATUTES INVOLVED

The only statute involved in this case is the Federal

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

STATEMENT OF THE CASE

Respondents do not agree with nor accept the recita-

tion of facts contained in the petition for certiorari. The

depositions, interrogatory answers and affidavits filed

below will speak for themselves should the Court grant

this petition. In so doing, the record will reflect that ‘

Petitioner’s job was no different from, nor more stressful

than, those of other employees within the railroad.

Among other things, it is inaccurate for Petitioner to

contend that the number of communications coordinators

was halved. While two individuals did accept early retire-

ment in September 1987, they were replaced by others

within a few weeks. Petitioner also implies in his brief that

he regularly worked seventy day periods without time off.

The record reveals that if such a period of work transpired,

it did so only on one occasion.

nated “long before” computers were in place. Petitioner’s

Brief, p. 4. It also is inaccurate and misleading to charac-

terize an analyst's job as similar to that of an air traffic

controller. Id. The positions are not comparable at all.

Respondents dispute that analyst jobs were elimi-

For purposes of evaluating the present petition,

Respondents show that the following narrative reflects the

evidence in the record of this case. The Petitioner was

employed by the Norfolk Southern Railway Company

(f/k/a/ Southern Railway Company) from the mid-1970s

until January 1989. At all times relevant to this litigation,

he was employed by the railroad as a communications

coordinator. In that position, Petitioner’s job was to receive

telephone calls relative to any problems with the commu-

nication network of the Norfolk Southern Railway

Company. He would then take steps to ensure that such

problems were corrected. Within Norfolk Southern

Railway Company, a communications coordinator is a

management-level position.

According to the Petitioner’s allegations, the railroad

began reducing its work force in September 1987. This

reduction reportedly increased the amount of work he was

required to perform. Petitioner also argues that in addition

to his normal responsibilities, he was required to perform

the duties of a detector analyst on numerous occasions.

Prior to September 1987, Petitioner reportedly suf-

fered no stress-related problems; however, beginning in

late 1987 and continuing through 1988, the Petitioner

claims to have experienced difficulty sleeping and a loss of

weight. He blames these developments upon the increase

in his work load. Mr. Spence testified that beginning in

1987 he complained regularly to his superiors about his

heavy work load and the adverse effect it was having

upon his life and health.

The Petitioner claims that his problems became par-

ticularly severe during the last month or so of 1988, and, as

a result of his work, he experienced crying attacks on the

job during the first week of January 1989. Petitioner never

suffered a physical injury while an employee of the rail-

road, but he does allege that he developed physical

problems as a result of his stress-related condition. The

physical injuries identified are excessive hair loss, psoria-

sis, stomach tightening and loss of weight. Petitioner

alleges that on January 19, 1989, he could no longer func-

tion because of what he characterizes as a “total

breakdown”. That “breakdown” forms the basis for the

underlying litigation. Mr. Spence was the only coordinator

to suffer a claimed nervous breakdown or to suggest that

the job was beyond his emotional capacity.

REASONS WHY THE WRIT SHOULD BE DENIED

I. PLAINTIFF HAS FAILED TO PRESENT

A CLAIM FOR EITHER NEGLIGENT

OR INTENTIONAL INFLICTION OF

EMOTIONAL DISTRESS.

The Georgia Court of Appeals ruled correctly when

it rejected Petitioner’s claim in Norfolk Southern Railway

Company v. Spence, 210 Ga. App. 284, 435 S.E.2d 680

(1993), by applying the same reasoning articulated by

this Court in Atchison, Topeka & Santa Fe Ry. Co. v. Buell,

480 U.S. 557, 566 n. 13, 107 S.Ct. 1410, 1416 n. 13, 94 L.Ed

2d 563 (1987). Buell determined that in order to present a

claim for emotional injuries under the Federal

Employers’ Liability Act, 45 U.S.C. §51 et seq., a plaintiff

must establish that he suffered a severe emotional injury

as a result of “unconscionable abuse” on the part of his

employer.

The Buell decision recognized that if an employee

were not required to demonstrate unreasonable conduct

on the part of his employer, virtually every intra-office

dispute and personnel matter could be transformed into

FELA litigation. Id. It is a reality of our times that we live

in a society full of daily stresses at home and in the

workplace. If job stress, without more, can support

FELA litigation, the courts will be swamped, and it will

be increasingly difficult, if not impossible, to manage a

railroad on a day-to-day basis.

The Georgia Court of Appeals resolved Petitioner’s

claim against him even though it assumed that Mr.

Spence had actually stated a claim under the FELA;

however, relief such as he seeks simply is unavailable

under the FELA. Petitioner did not suffer any on-the-job

injury connected with an identifiable or traumatic inci-

dent. Instead, Petitioner claims only that because his job

was stressful, he developed emotional problems and is

thereby entitled to relief under the FELA. The FELA was

not created to provide judicial relief for such stress

claims, as the majority of courts have already found.

The Fifth and Seventh Circuit Courts of Appeal

have squarely held that the FELA does not create a cause

of action for tortious harms caused by acts which lack

any physical contact or threat of physical contact with

the victim. See Gough v. Natural Gas Pipeline Company of

America, 996 F.2d 763, 765 (5th Cir. 1993)'; Ray v.

Consolidated Rail Corp., 938 F.2d 704, 705 (7th Cir. 1991),

cert. denied, 112 S.Ct. 914 (1992). As explained by the Fifth

Circuit, the injury rule has two important functions for

courts evaluating mental injuries:

One purpose is to ‘provide courts with an

objective means of canaing that the alleged

mental injury is not feigned.’ (cit. omitted).

A more importan dpm ony of the rule is to

provide a principled basis for limiting liabil-

ity. Traumatic events may cause foreseeable

emotional distress through a broad range of

time and space. Jurisdictions that apply

expansive recovery rules such as the

‘Gough is a Jones Act case, see 46 U.S.C. §688. Rules that gov-

ern liability under the Jones Act are the same as those which

apply under the FELA. See Yehia v. Rouge Steel Corp., 898 F.2d

1178, 1184 (6th Cir. 1990).

bystander theory must d u x-

hinate cause to define heamdary of

liability. We are wary of such ad hoc adju-

dications and prefer predictable rules for

a ee of vane a The

right line impact or injury rule performs

a similar henatien. sa

Gough, at p. 765-66. In the instant case, Petitioner’s

claim plainly fails under the injury rule; thus, no reason

exists for this Court's further review of his case.’

Petitioner argues that his case merits review

because of a combined case presently pending before the

Court, Consolidated Rail Corp. v. Gottshall and Consolidated

Rail Corp. v. Carlisle, Supreme Court Case No. 92-1956.

Respondents submit otherwise. Should a decision in

favor of the Consolidated Rail Corporation be issued,

there clearly would be no reason to prolong further this

litigation. Even if that case is resolved against Conrail,

however, such a disposition will not suggest that addi-

tional review of this case is warranted.

The case at bar presents fundamentally different

facts from those in Gottshall v. Consolidated Rail Corp., 988

.2d 355 (3d Cir. 1993). In Gottshall, the plaintiff and his

best friend were performing rigorous physical work in

the broiling sun for long hours. As a direct result of the

harsh working conditions, plaintiff's best friend suffered

* The injury rule is the test pursuant to which Petitioner’s

claim would be evaluated were the Court to examine Georgia

law (as per Buell at 480 U.S. 568-70) for assistance in analyz-

ing this case. See OB-GYN Assoc. of Albany v. Littleton, 259 Ga.

663, 665, 386 S.E.2d 146 (1989).

a heart attack which ultimately proved fatal. The friend

lingered as the plaintiff attempted to revive him while

their supervisor acted inappropriately and in a manner

which the appellate panel clearly disapproved. Whether

this Court determines that the plaintiff in Gottshall has

stated a claim under the FELA has no bearing upon

whether the Petitioner in this case is entitled to proceed.

Mr. Gottshall directly participated in a traumatic event

involving the death of a close personal friend. His case

bears no resemblance to that of the Petitioner here.

Carlisle v. Consolidated Rail Corp., 990 F.2d 90 (3d Cir.

1993), is factually distinct as well. The plaintiff there

established that co-workers in similar positions had suf-

fered cardiac arrests, nervous breakdowns and clinical

depression. The Federal Railway Administration had

issued a report criticizing the defendant for its “haz-

ardous working conditions”. More importantly, the

plaintiff was abused by an alcoholic supervisor. Id., pp.

92-93. Petitioner Spence was not subjected to abusive

behavior, he alone among his peers developed emo-

tional problems, and his job is not at all comparable to

that of a train dispatcher in the northeast corridor.

Therefore, additional consideration of this case is

unwarranted regardless of the resolution in Carlisle.

Every job is stressful to some degree. Allowance of

FELA claims for psychological problems which are

unconnected to a physical injury or unconscionable

conduct by the employer is beyond the FELA’s scope,

exceeds the intent of Congress, and will result in a mul-

titude of cases being filed by disgruntled employees.

The issue of stress-related FELA claims was correctly

resolved by the district court in Kraus v. Consolidated Rail

Corp., 723 FSupp. 1073, 1090 (E.D.Pa. 1989), appeal dis-

missed 899 F.2d 1360 (3d Cir. 1990), which dismissed

them and found that,

...[P]laintiffs, who allegedly suffer from

stress-related physical or ey emotional

injuries or illnesses caused by their general

working conditions, fail to state a claim

under the FELA. Lawyers, doctors, bus

drivers, police officers, laborers, and, yes,

even judges, face stressful conditions

every mf To suggest that Congress

intended to single out railroad workers...

as worthy of special protection from such

stress would be pure folly. Job-related

stress is simply not the type of problem

intended to be dealt with by the FELA.

Accord Moody v. Boston & Marine Corp., 921 F.2d 1,5

(1st Cir. 1990); Holliday v. Consolidated Rail Corp., 914 F.2d

421, 423-24 (3d Cir. 1990), cert. denied 498 U.S. 1090

(1991). See also Lewis v. Union Pacific R. Co., 497 N.W.2d

33 (Neb. 1993); Handy v. Union Pacific R. Co., 841 P.2d

1210 (Utah Appeals 1992).

The Georgia Court of Appeals assumed arguendo

that Petitioner could in theory state a claim for relief

under the FELA. Having examined the substantive evi-

dence supporting Petitioner’s allegations, however, the

state court properly found that Petitioner’s case lacked

substantive merit. Consequently, summary judgment in

the railroad’s favor was granted. There is no reason for

this Court to review further the allegations advanced by

the Petitioner in this litigation. Whatever the result in the

FELA litigation presently before the Court, its adjudica-

tion will not materially alter the result in this case. For

that reason, this petition should be denied.

II. PETITIONER’S CLAIM IS BARRED

BY THE STATUTE OF LIMITATIONS.

Petitioner’s claim is barred by 45 U.S.C. §56, which

requires that all FELA lawsuits must be filed within

three years of the time when an injury occurs. A plain-

tiff bears the burden of establishing that he has filed an

action under the FELA in a timely manner. Crisman v.

Odeco, Inc., 932 F.2d 413, 416 (5th Cir.), cert. denied, 112

S.Ct. 337 (1991). As Mr. Spence’s claim was not filed in

a timely manner, it should be dismissed for that reason.’

Under Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018,

93 L.Ed. 1282 (1949), and United States v. Kubrick, 444

U.S. 111, 100 S.Ct. 352, 62 L.Ed. 2d 259 (1979), the dis-

covery rule applies in FELA cases. Dubose v. Kansas City

Southern Ry. Co., 729 F.2d 1026, 1029-30 (5th Cir.), cert.

denied, 469 U.S. 854 (1984). Under that rule, ”...[A] claim

accrues under FELA when the plaintiff possess suffi-

cient critical facts from which the injury and its cause,

including its work-relatedness, should be plainly

know.” Robb v. CSX Transp., Inc., 204 Ga. App. 690, 693,

420 S.E. 2d 370 (1992). The evidence of record in this

case is replete with testimony which demonstrates that

Petitioner was aware of the problems he claims to have

suffered and their alleged work-related causation well

over three years before this lawsuit was filed on January

17, 1992.

* Respondents raised this issue below; however, the Georgia

Court of Appeals did not address it since it ruled against

Petitioner on other grounds.

According to Mr. Spence’s interrogatory answers,

he began to experience problems with his health stem-

ming from his job as early as September 1987, and he

claims to have complained continuously about that fact

to his supervisors. His answer to interrogatory 6 of the

railroad’s first interrogatories states that Petitioner went

to his supervisor’s office “a number of times” in 1987 to

discuss his work, the stress he was under and the “severe

impact this working condition was having on [his] health...” .

(Emphasis supplied). In the affidavit which Petitioner

filed in opposition to the railroad’s motion for summary

judgment, he testified as follows:

The stress from my work took an ever

increasing toll upon me in late 1988 and

early 1989. My insomnia became progres-

sively worse, my weight loss increased

dramatically [beginning in December

1988], my attentiveness to tasks grew

extremely diminished and I began to suffer

from episodes of acute sobbing.

Petitioner’s deposition makes clear that the “episodes of

acute sobbing”, which he connected to the stress of his

job, occurred during the first week of January 1989.

Petitioner did not file his lawsuit in this case until

January 17, 1992. As shown above, Petitioner possessed

“sufficient critical facts from which [his] injury and its

cause, including its work-relatedness, [could have been]

plainly known” well before January 16, 1989 (the statu-

tory limit). See Robb v. CSX Transp., Inc., supra at 693. See

also Jones v. Maine Cent. R. Co., 690 FSupp. 73 (D.

Me.1988); McCoy v. Union Pacific R. Co., 796 P.2d 646 (Or.

App. 1990).

Petitioner argued below that because in his opinion

he had not experienced a complete breakdown until

January 19, 1989, the statutory bar did not apply; how-

ever, “that [petitioner’s”] injury had not reached its

maximum severity [in 1988 and early 1989] but contin-

ued to progress does not affect [the fact that 45 U.S.C.

§56 bars the lawsuit].” See Fries v. Chicago & Co. Transp.

Co., 909 F.2d 1092, 1096 (7th Cir. 1990).*

Because Petitioner did not file his lawsuit within the

time allowed by 45 U.S.C. §56, this case should be dis-

missed for reasons independent of those provided by

the Georgia Court of Appeals below. Accordingly, noth-

ing will be gained by further review of this litigation by

this Court.

iil. CONCLUSION.

Petitioner’s case has been adequately considered by

the courts below. The circumstances of his case do not lend

themselves to relief under the Federal Employers’ Liability

Act. Equally important, he has failed to comply with the

limitations requirement of 45 U.S.C. §56. Nothing further

is to be gained from prolonging this litigation.

A number of conditions in life combine to create

stress, both at home and on the job. If every instance of

work-related stress may give rise to litigation under the

FELA, an intolerable situation will be created. The time

‘ The fact that Petitioner’s claimed injury is mental in nature

does not change this result. The same rules of limitation apply

to such injuries. See Armstrong v. Trico Marine, Inc., 923 F.2d 55,

58-59 (5th cir. 1991); Puthe v. Exxon Shipping Co., 802 F.Supp.

819, 829-30 (E.D.N.Y. 1992), aff'd. other grounds 2 F.3d 480 (2d

Cir. 1993).

10

and expense of defending these cases will unduly bur-

den both employers and the courts. The FELA was never

intended to provide relief of this nature.

WHEREFORE, Respondents pray that the petition

be dismissed.

Respectfully submitted,

NEELY & PLAYER

By:

Edgar A. Neely, Jr.

By:

William C. Thompson

11

CERTIFICATE OF SERVICE

I hereby certify that I have sent a copy of

RESPONDENTS’ OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI upon counsel of record for

Plaintiff-Petitioner, Michael Spence:

Paul R. Bennett

Agnew, Schlam & Bennett

P.O. Box 11

812 Broadway

Columbus, GA 31901

(706) 327-7571

By depositing a copy of this response in a United

States post office or mail box, with first-class postage

pre-paid, addressed to the counsel listed above.

William C. Thompson

12