Opposition Brief — Norfolk & Western Railway Co. v. Dye

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No. 00-1637

IN THE

Supreme Court of the United States —

NORFOLK & WESTERN RAILWAY COMPANY,

Petitioner,

HOMER DYE, et al.,

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO THE

Circuit Court oF MinGo County, WEST VIRGINIA

BRIEF IN OPPOSITION

James A. MCKOWEN

James F. HumpuHrReysS & AssociaTEs, L.C.

Attorneys for Respondents

707 Virginia Street, East

Suite 1113

Charleston, West Virginia 25301

(304) 347-5050

167278 cr

COUNSEL PRESS

(SOO) 274-3321] © (800) 359-6859

QUESTIONS PRESENTED

Whether the lower court properly instructed the jury that

it could award damages for fear of cancer in a FELA case if

it found that the plaintiffs had sustained asbestos related

injuries and that the plaintiffs’ fear of developing cancer as

a result of their asbestos exposure was reasonable?

Whether joint and several liability applies in FELA cases

when the trial court determines that the alleged negligence

of multiple tortfeasors resulted in a single, indivisible injury

such as occupational pneumoconiosis?

TABLE.OF CONTENTS

(Juestions PIORONMNE i. ius cd kkwaeseeeneas

Tee CE CRIS oo ok kno ee ee

Tate of Cred Amer ok oink kes kiko wee

pietaenent GF Ge Cee . ko ick wen dst eS

NN ks oak we ee ee

Occupational Exposure .................

MieGicel BVA 4) kas nes bee cer k

Lay Testimony Concerning Physical And

Eeactnnl DONE 635s ccc eas

pe ee eee ene

Reasons for Denying the Writ .................

Il.

These Cases Provide A Poor Vehicle For

Deciding The Issues Raised By Petitioner.

The Alleged Conflict Of Authority

Concerning Damages For Emotional Distress

Is Based On Factually Distinguishable

Cases, Most Of Which Predate This Court’s

Gottshall and Metro-North Decisions ..... ;

Page

ie Bethe nd See lt Sly SO Se eli be cinesons asim ea cttliaillapaibiaita

Anais wht

Ill.

IV.

ill

Contents

The Alleged Conflict Of Authority

Concerning Joint And Several Liability Is

Not Based On Cases, Such As This One,

Involving Multiple Tortfeasors Whose

Combined Negligence Resulted In Indivisible

Ne eee Ree ease ase aw aw a woes

Petitioner Exaggerates The Impact Of The

Lower Court’s Ruling And The Importance

Of West Virginia As A Forum ...........

V. The Rulings Of The Lower Court Were

; CO AE errr rer ee ry ee

A. EOCIOURE EPUOETORS . ww a cae cscs

B. Joint And Several Liability ..........

ea cease tw kia yh 5 ah kaw eek ks 6 4 wee

Appendix — Additional Relevant Documents ....

Page

20 .

TABLE OF CITED AUTHORITIES

Page

Cases:

Abbott v. Owens-Corning Fiberglas Corp.,

444 S.E.2d 285 (W. Va. 1994) ............... 15

Akers v. Norfolk and Western Railway Co., 417 F.2d

ee ee Nr rr err re Par 12

Alabama Great Southern RR Co v. Jackson, 587

i ee a CEE oe cc oh obs ceo wee 1]

B.F. Goodrich vy. Betkoski, 99 F.3d 505 (2d Cir.

SOD Wann a5 5cynbedbes su esaeu ieee 22

Borel yv. Fibreboard Paper Products Corp., 493 F.2d

Se TE 6 hes Reeve aaiew ele 20

Bullard v. Central Vermont Railway, Inc., 565 F.2d

pik fe eg) Bere ern a Se re er rae 10

Centerior Serv. Co. v. Acme Scrap Iron & Metal

Corp., 153 F.3d 344 (6th Cir. 1998) .......... 22

Coats v. Penrod Drilling Corp., 61 F.3d 1113 (Sth

ry ee Pere re re 22, 23

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

go. | GARR pares pee prargg nares yr err par 2, 10, 11, 18, 23

Dale v. B&O, 552 A.2d 1037 (Pa. 1989) ........ 13

ee |

Cited Authorities

Page

Davis v. Celotex Corp., 420 S.E.2d 557 (W. Va.

>) ae ry Ere ere rn hee Se 15

Denton v. Southern Railway Co., 845 S.W.2d 885

er Coe Sf Pe rreer Teer ne rere 20, 21

Dicola v. American Steamship Owners Mut.

Protection & Indemn. Assn. (In Re Prudential

Lines, Inc.), 170 B.R. 222 (S.D.N.Y. 1995) .... = 22

Dunn v. HOVIC, 1 F.3d 1362 (3d Cir. 1993) ..... 19

Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517

to Me: Bee | erg erry eo 19, 20

Edmonds v. Compagnie Generale Transatlantique,

BES UD BOC Pie) 6 6500 eee rs pe

Finley v. Norfolk and Western Railway Co., 540

Sea 188 CN. Va TO) ois kes aaa cca a to

Gardner v. CSX Transp., Inc., 498 S.E.2d 473

eS es Sere an ere Pema cr nie pts 15

Gaulden v. Burlington Northern, Inc., 654 P.2d 383

CR: SOD 5S Scar cdaeee eevee 21

Griffin v. Keene Corp., No. 85 C 10748, 1990 WL

93292 (ND. I. June 19, 1990)... 02. ceca es 19

Cited Authorities

Gustafson v. Burlington Northern Railroad Co., 561

am bie Bo: ere pre re

Haggerty v. L&L Marine Serv., Inc., 788 F.2d 315

(Sth Cir.), reh’ g en banc denied, 797 F.2d 256

4th | ee ere eee ae

Herber v. Johns-Manville Corp., 785 F:2d 79

Ee A Be re ery rr er ee

In Re Hawaii Federal Asbestos Cases, 960 F.3d 806

>. D&A). | Re mnpERre Rr: oe 5 The G!

In Re Ocean Foods Boat Co., 692 F. Supp. 1253

Cis Ke: Se 6+ 0.00 cee akeen knee

In Re State Public Bldg. Asbestos Litigation, 454

ee A | were oe ee

Jackson v. Johns-Manville Sales Corp., 781 F.2d 394

bE | ere ee i

Johnson v. National Steel & Shipbuilding Co.,

742 F. Supp. 1062 (S.D. Cal. 1990) ..........

Joia v. Jo-Ja Serv. Corp., 817 F.2d 908 (1st Cir.

POON: 0 0%.cs0sibu ced ekemnee eee

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

CUSSED 6. skck de wviees hbk eee

Page

—_.

vil

Cited Authorities

Page

Lavelle v. Owens-Corning Fiberglas Corp.,

30 Ohio Misc.2d 11, 507 N.E.2d 476 (C.P. 1987)

ERT ee OR ee Pe ee ey Meee Ss 19

Lewis v. National Railroad Passenger Corp.,

176 Misc.2d 947, 675 N.Y.S.2d 504 (1998) .... = 21

Lockhard v. Missouri Pacific RR, 894 F.2d 299

(8th Cir. 1990) ........ ys gee TT Te TPES 21

Marlin v. Bill Rich Const., Inc., 482 S.2d 620

7 CW s SO ROD 6 54.5.d bie Sekcous eee eases 15

Martinez v. Bailey's Louisiana, Inc., 244 F.3d 477

| CPU Kale BOOED 6 «kwh sentnvcdcrassh donee 10, 11

‘ Mauro v. Owens Corning Fiberglas Corp., 542 A.3d

De Cie. OE, SHED aéo eee ddaeds daesane es 19

Mazyck v. Long Island Railroad Co., 896 F. Supp.

Sad CN +, Ss oc deakonsepssnneeees 21

McDermott v. Consolidated Rail Corp., 768 A.2d

pee tre. Bee: CR BED obo ddd a netesaddlaks 13

McMillan v. National Railroad Passenger Corp.,

ee Le ee | ren ree 11

McNair v. Owens-Corning Fiberglas Corp., 890

ae Tae Gee Gk BE bc iectbpiecsviawcens 23

vill

Cited Authorities

Page

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

CEE Mss dae bout eacaerebas baaaee 2, 10, 11, 18, 19

Moody v. Maine Central RR Co., 823 F.2d 693

Se, SE ia beck ses ah nk wena 10

Narcise v. Illinois Central Gulf Railroad Co., 427

es ee A a BE Se Vb bs a kw eas kann es 21

Norfolk and Western Railway Co. v. Tsapis, 400

ee Cees Se SUED baba dvse dees eaeen 15

Ohm Remediation Servs. v. Evans Cooperage Co.,

REG Foe 857 OCS CS, 1997) occ cc Peccecas’s 22

O'Neill v. Picillo, 883 F.2d 176 (1st Cir. 1989) ... 22

Padgeit v. A&M Insulation Co., 640 N.E.2d 21

es Wake Se ED sc ak oe cane bn Mew een ts 23

Price v. U.S. Navy, 39 F.3d 1011 (9th Cir. 1994)... = 22

Rice v. Cincinnati, New Orleans & Pacific Railway

Co., 920 F. Supp. 732 (E.D. Ky. 1996) ........ 21

Rumpke of Indiana v. Cummins Engine Co., 107 F.3d

es fy oo OR. o | Serr Gere rares Sayer 22

Sauer v. Burlington Northern Railroad Co., 106 F.3d

OE a PS occ lawkdNiesbedcuunes 12

Cited Authorities

Shupe v. New York Central System, 339 F.2d 998

CP PEE Fas cake eed eRee ete ree

Simeon v. T. Smith & Son, Inc., 852 F.2d 1421

Se: BONE f 2 tes Rabe aver ees sores

Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash.

oo, US EP Oa er ee ee Pn Dare he err

State ex rel. Appalachian Power Co. v. MacQueen,

479 $.B.26 S00 CW. Va. FO9G) ooo cc ccccsees

State ex rel. CCR Ltd. ¥ MacQueen, 441 S.E.2d 658

Sees Ses EE a Ree eas Bhi ese

State ex rel. H.K. Porter Co. v. White, 386 S.E.2d

ee ak ok ea

Stephens v. Southern Pacific Transportation Co.,

991 F. Supp. 618 (S.D. Tex. 1998) ...........

Stevenson v. Keene Corp., 603 A.2d 521 (N.J. Super.

Ct. 1992), aff'd, 620 A.2d 1047 (N.J. 1993) ....

Texaco v. Addison, 613 So. 2d 1193 (Miss. 1993)

ASD CBE BEAD OSE ABDSD APA AE *SA ADEA OC CAMO He E.6 8 D2 BE OC

Torrence v. Kusminsky, 408 S.E.2d 684 (W. Va.

SNES Gua tinea catue eaad eas haa ee eee

Page

Cited Authorities

Page

United States v. Monsanto Co., 858 F.2d 160

SG i RIE on oh eas Kaa eee ee ees ys a

United States v. M/V Big Sam, 681 F.2d 432

Se EE Cc eae a oe he eee eee Fa

United States v. Rohm & Haas Co., 2 F.3d 1265

Cee SR a ook race eee baa ewe. oes 22

Varhol v. National Railroad Passenger Corp., 909

pe Bog y, 1™ Ae, enema rier 12

Statutes:

ee oe eae ho ean ae ae nee 20

RP Oe Fh Lee ea aC 20

Haw. Rev. Stat. § 663-10.9(2Wc) ...........64. 23

ee Se Us er ae nr ee eee 23

N.J. Stat. Ann. § 2A: 115-5.3(d)(1) & (f) ........ 23

Tex. Civ. Prac. & Rem. Code Ann. § 33.013(c)(2) .. 23

Wash. Rev. Code § 4.22.070(3)(a) .............. 23

Rule:

a Ue, ee a ca ae ee 8

Cited Authorities

Other Authorities:

Dan B. Dobbs, The Law Of Torts § 390 (2000) ...

Restatement (Second) of Torts § 433A, comment 1

Ce co kA cea ark ee he ee TR

Restatement (Second) of Torts § 433 B (2) (1965) oe

Restatement (Second) of Torts § 434 (1965) .....

Restatement (Second) of Torts §§ 875, 879 (1977)

$@eeeaeeonmweneae~egece @C eee oabgaoeeeonwsensec Peeve aeeneeceea eens ee 6 6

Restatement of Torts §§ 875, 879 (1939) ........

Restatement (Third) of Torts: Apportionment of

nee 2 1 e CE oo pee rcs aes

Richard W. Wright, Allocating Liability Among

Multiple Responsible Causes: A Principled

Defense of Joint and Several Liability for Actual

Harm and Risk Exposure, 21 U. Cal. Davis L. Rev.

PR AOE 50a ok ba a es

Page

STATEMENT OF THE CASE

A. Introduction

This litigation involves five retired railway workers who

brought FELA (Federal Employers Liability Act) lawsuits

for occupational pneumoconiosis against their former

employer, the Norfolk and Western Railway Company. These

cases do not present a good vehicle for deciding the fear of

cancer and apportionment of damages issues raised by the

petitioner. Because of the general verdict forms used with

the railroad’s acquiescence, there is no way of determining

how much, if any, of the damages were awarded for fear of

cancer. The emotional distress claims presented by the

plaintiffs were also much stronger than the railroad alleges.

Only two of the five plaintiffs had non-railroad exposure

to asbestos. Even in those cases, the railroad exposure was

far from “marginal.” One of the plaintiffs with non-railroad

exposure, Mellington Wheeler, settled with his non-railroad

employer, Novamont, and the verdict against the petitioner

was reduced by the amount of that settlement. To have

employed both a settlement offset and some other means of

apportioning damages would have resulted in “double

dipping.” The injuries suffered, mixed dust pneumoconioses,

were properly found by the trial judge to be indivisible, and

incapable of rational apportionment on the basis of causation.

Even if the lower court had abandoned the doctrine of joint

and several liability for multiple tortfeasors whose negligence

combine to cause an indivisible injury, there was no evidence

presented to establish any fault on the part of the non-railroad

employers for purposes of apportioning damages. Thus, these

Cases present a poor vehicle for deciding apportionment

issues.

The conflicts of authority alleged by the railroad are

more apparent than real. The cases it cites in support of a

“physical manifestation” requirement in emotional distress

cases are factually distinguishable and almost all of them

predate this Court’s opinions in Consolidated Rail Corp. v.

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

Commuter RR vy. Buckley, 521 U.S. 424 (1997) [Metro-

North]. The cases it cites for apportionment of damages do

not involve multiple tortfeasors whose negligence was found

by the trial court to cause an indivisible injury, which is the

type of injury alleged here.

The holdings of the lower court were correct and

consistent with similar rulings in many other jurisdictions.

Furthermore, the petition exaggerates the impact of the trial

court’s rulings, and-the importance of West Virginia as a

forum for FELA cases, while incorrectly asserting that the

Supreme Court of Appeals of West Virginia does not review

cases such as these.

B. Occupational Exposure

At trial, all of the plaintiffs testified about their exposure

to asbestos and other toxic airborne contaminants, as well

as their employer’s failure to provide them with breathing

protection or warn them about the hazards of exposure to

airborne dust. Although the railroad asserts at page 7 of the

petition that Mr. “Wheeler testified at trial that he was not

aware of having been exposed to asbestos at N&W,” that

simply is not true. According to Mr. Wheeler’s trial

testimony, as a fireman and engineer on steam locomotives,

he continually rode in cabs where the boiler head was covered

with asbestos, and the steam lines were also insulated.

Trial Transcript (7/29/98) at 74-84, 113, 149-50. When the

asbestos was bumped, chunks would fall to the floor, creating

dust when they hit. /d. at 75, 80. If the ride was bumpy,

asbestos would fly all over. /d at 76. Wind from the open

windows would also stir up the dust. /d at 78.

Two of the plaintiffs, Mellington Wheeler and Leo

Thacker, were exposed to asbestos at non-railroad, as well

as railroad jobs. After leaving his railroad employment,

Mr. Wheeler worked at a chemical plant from 1961 to 1992.

Even the railroad’s industrial hygienist did not think that

this non-railroad exposure was significant, testifying that he

did not see any “meaningful opportunity for [Mr. Wheeler]

to have high exposure there sufficient to have caused

disease. ... from asbestos or silica ...” Trial Transcript

(7/31/98) at 125. Subsequent to his railroad employment,

Mr. Thacker worked on various new construction projects

where he may have had some limited exposure to asbestos,

but he testified that his asbestos exposure would have

been much greater on the railroad than on his other jobs.

Trial Transcript (7/24/98) at 234, 274-75. The railroad did.

not identify the negligence of any third parties as a defense

in its Answers or Amended Answers to the Complaints, nor

did it seek to add any third party defendants to these lawsuits,

or make any effort to obtain contribution from any third

parties. Nor did it put on any evidence to show that the non-

railroad employers were negligent.'

1. If petitioner’s counsel believed that some ruling by the trial

court prevented them from presenting such evidence, they needed

to vouch the record to preserve the issue for appellate review. Finley

v. Norfolk and Western Railway Co., 540 S.E.2d 144 (W. Va. 1999)

(per curiam); Torrence v. Kusminsky, 408 S.E.2d 684 (W. Va. 1991).

C. Medical Evidence

At trial, none of the parties called any treating doctors

to testify, although both sides relied on medical records from

treating physicians and called various expert witnesses to

the stand. Dominic Gaziano, M.D., a Board Certified

Pulmonologist and NIOSH Certified B-Reader, testified

that each of the plaintiffs suffered from a mixed dust

pneumoconiosis (including asbestosis and silicosis), that

their pneumoconioses had been caused, at least in part, by

their occupational exposure to asbestos, silica and other toxic _

dusts on the railroad and that pneumoconiosis can progress

to the point where it renders one a respiratory invalid.

Trial Transcript (7/24/98) at 32, 42-43, 46, 50, 56, 57, 63,

187-88. Furthermore, because of their occupational exposure

to toxic dusts, the plaintiffs were at greater risk of developing

lung cancer (which has a mortality rate of 85-90%) and

mesothelioma, a painful, almost invariably fatal cancer of

the pleural lining. /d. at 53-5. In his opinion, people with

occupational exposure to asbestos, silica and coal dust should

have real concern about developing cancer. /d. at 54.

Arnold Brody, a prominent scientist who studies lung

pathology, testified about his research concerning the effects

of asbestos fibers on the lung. He opined, among other things,

that for non-smokers exposed to asbestos, there is a five-

fold increase in the risk of developing lung cancer. Trial

Transcript (7/23/98) at 188. Smokers exposed to asbestos

have a synergistic risk of developing lung cancer, which

means that the risk of developing cancer is multiplicative,

rather than additive. Thus, one pack per day smokers exposed

to asbestcs have a risk of developing lung cancer that is fifty

times greater than nonsmokers with no occupational exposure

to asbestos. /d. at 163, 188.

On cross-examination, Dr. Renn, the defendant’s chief

medical expert, agreed that asbestos was a mutagen,

Trial Transcript (8/18/98) at 25, that all of the plaintiffs were at

risk of developing mesothelioma because of their occupational

exposure to asbestos, id. at 51, that asbestos can cause lung

cancer in people with asbestosis, id. at 25, Trial Transcript

(8/17/98) at 172, and that 30-39% of all people with asbestosis

will develop lung cancer. Trial Transcript (8/18/98) at 51.

Ray A. Harron, M.D., a board certified radiologist and

NIOSH - certified B-reader, testified that all of the plaintiffs -

had x-ray changes consistent with asbestosis. Trial Transcript

(8/18/98) at 133, 134, 137, 159, 160, 161-64. He also testified

that asbestosis was an insidious, progressive, incurable disease,

and that exposure to asbestos increased the risk of developing

mesothelioma, lung cancer and various gastrointestinal cancers,

Id. at 163, 164, with a five-fold increase in the incidence of

lung cancer. /d. at 164.

None of the plaintiffs were current smokers. Two of the

plaintiffs, Homer Dye and Jethro Walker, never smoked.

Mr. Walker had crackles, a mildly reduced diffusing capacity

and mildly reduced lung volumes which are classic signs of

asbestosis. Even the defendant’s chief medical expert,

Dr. Renn, considered Mr. Thacker who smoked for 10 years

but quit prior to 1946 to be a “non-smoker”. Trial Transcript

(8/18/98) at 44. Jack Lambert stopped smoking in 1978, long

enough ago that his risk of developing lung cancer as a result

of smoking had almost declined to that of a person who had

never smoked. /d at 44, 49, 50. Mr. Wheeler quit smoking

in 1992.

D. Lay Testimony Concerning Physical And Emotional

Injuries

The late Mellington Wheeler testified that he

suffered from shortness of breath that was getting worse.

Trial transcript (7/29/98) at 97. As a result, he gave up

hunting, fishing, golfing and officiating high school football

games. /d. at 98. He was advised to walk for the sake of his

heart, but could not because of his breathing problems.

Id. at 75. He sat in the car while his wife shopped. /d. at 99.

He was concerned about his future health because of his dust

exposure and afraid he would die. /d. at 99. He was aware of

his increased risks of lung cancer and mesothelioma, and

thought about it all the time, including the middle of the

night when he could not breathe properly. /d. at 100-01.

Jack Lambert’s testimony disclosed that he suffers from

shortness of breath, considers difficulty breathing to be his

most serious health problem, no longer hunts, fishes or mows

his lawn, hums in church instead of singing, rests when his

wife is in the mall, is not as active as other people his age, is

worried and afraid about getting cancer, worries about his

shortness of breath, and is concerned about what would

happen to his wife, who can’t drive, if something happened

to him. Trial transcript (7/29/98) at 195-202, 241. He is aware

of his increased risk of developing cancer and often talks to

his wife about his concerns.

Leo Thacker testified that he is aware of his risk of

developing mesothelioma, that his lungs keep him up at night,

that he has trouble breathing and going up and down stairs,

that he cannot hunt with his grandchildren or walk up hills

anymore, that he uses Ventolin and a fog machine, that his

family doctor said he had asbestosis, that he is concerned

about his future health and about his wife, children and

grandchildren, and that he gave up gardening and mowing

the grass. Trial transcript (7/29/98) at 237-241, 270, 273.

Because of his religious beliefs, Mr. Thacker is not “afraid”

of getting lung cancer, but he is “concerned” about the

possibility of developing that disease, not just for his own

sake, but for that of his wife, children and grandchildren.

Id. at 240, 241. The railroad’s argument that Mr. Thacker

should not be allowed to recover for his emotional distress

because he described it as “concern” rather than “fear” has

no merit.

Jethro Walker testified that he has shortness of breath,

cannot work anymore, has trouble climbing stairs and

sleeping, does not have much of a garden, worries about his

health because of asbestos and his dust related lung disease,

has discussed the risk of lung cancer with his family doctor,

is bothered by the fact that a good friend who was exposed

to asbestos as a welder died from lung cancer, does not fish

any more and thinks about asbestosis and getting lung cancer

because of his asbestos exposure. Trial transcript (7/29/98)

at 286-88, 307, 317.

Homer Dye testified that he suffers from shortness of

breath, that his lungs are getting worse, that he cannot do

what he used to, that he cannot work around his house

anymore (he used to clean gutters and paint), that he used to

mow his yard in 30 minutes, but now it takes an hour or

more, that he cannot climb hills anymore and has given up

hunting and fishing, that he worries about getting cancer,

and that he worries about how his elderly sister, who lives

with him and suffers from cancer, will get along if he also

develops cancer and is no longer able to care for her.

Trial transcript (7/22/98) at 228-30, 235, 247.

E. Judgment

On March 8, 1999, after deducting offsets for settlements

with Novamont and various manufacturers of asbestos

products, the Circuit Court of Mingo County, West Virginia,

entered judgment in favor of all plaintiffs. On or about March

22, 1999, the defendant, Norfolk Southern Railway

Company, successor in interest to the Norfolk & Western

Railway Company, filed a motion for judgment as a matter

of law or in the alternative, for new trial or remittur. The

lower court entered an order denying this motion on

September 23, 1999. Unfortunately, Mellington Wheeler,

who died of respiratory failure on September 10, 1999, did

not live to see this order entered.

REASONS FOR DENYING THE WRIT

I. These Cases Provide A Poor Vehicle For Deciding

The Issues Raised By Petitioner.

On each verdict form, the jury indicated that the

negligence of the Norfolk and Western Railway Company

had caused or contributed to a “work related dust disease,”

a finding amply supported by the evidence. The verdict forms

used in these cases do not indicate the amount of damages,

if any, awarded for fear of cancer or other emotional distress.

The only question pertaining to damages on these forms

asked the jury: “What amount do you find will reasonably

compensate the plaintiff [NAME], for the loss he has suffered

and will suffer in the future because of his work related lung

injury?” See Respondents’ Lodging at L-96. Under W. Va.

R. Civ. P. 49, the jury could have been asked to award sums

for each element of damages. The railroad, however, did not

request a more detailed verdict form, or object to the form

used. In fact, the parties agreed to the verdict form. Trial

Transcript (8/18/98) at 134, 72. Given these general verdicts,

it is impossible to tell what amount of damages, if any, was

awarded for emotional distress in general, or fear of cancez

in particular. Consequently, these cases do not provide a good

vehicle for deciding the fear of cancer issue raised by

petitioner. In this regard, it should also be noted that the

emotional distress claims presented by the plaintiff are much

stronger than the petitioner makes them out to be.

The mixed dust pneumoconioses suffered by the

plaintiffs are classic examples of “indivisible” injuries which

cannot be rationally apportioned on the basis of causation.

Moreover, even if the lower court had abandoned the doctrine

of joint and several liability, there would have been little

or no evidence to apportion damages on the basis of fault.

Only two of the five plaintiffs had asbestos exposure at non-

railroad jobs, and even in those cases, the railroad exposure

was not “marginal” as alleged by the railroad. One of the

plaintiffs with non-railroad asbestos exposure, Mellington

Wheeler, settled with his non-railroad employer, Novamont,

and the petitioaer was given the benefit of an offset for that

settlement. T» have employed both a settlemer:t offset and

apportionment would have unduly reduced the petitioner’s

liability. Once again, these cases present a poor vehicle for

deciding the issue presented.

Il. The Alleged Conflict Of Authority Concerning

Damages For Emotional Distress Is Based On

Factually Distinguishable Cases, Most Of Which

Predate This Court’s Gottshall and Metro-North

Decisions

The railroad asserts that there is a split of authority in

the lower courts as to whether or not damages for emotional

distress can be awarded in FELA cases absent some form of

manifestation, presumably either physical symptoms or a

medical diagnosis. On the “manifestation” side, it cites four

FELA cases, two Jones Act cases and a state law tort action.

On the other side it cites the Second Circuit’s decision

reversed by this Court in Metro-North.

In one of the “manifestation” cases referred to by the

railroad, Haggerty v. L@L Marine Serv., Inc., 788 F.2d 315,

317-18 (Sth Cir.), reh’ g en banc denied, 797 F.2d 256

(Sth Cir. 1986), the Court actually rejected “physical

manifestation” of emotional distress as a prerequisite to

recovery. In another case cited by the railroad, Bullard v.

Central Vermont Railway, Inc., 565 F.2d 193 (ist Cir. 1977),

the plaintiff hurt his foot in a train collision, but the emotional

distress he sought to recover for did not involve any fear of

future illness or injury resulting from the accident.

None of the other FELA or Jones Act “manifestation”

cases cited by the railroad involve a plaintiff who had

suffered a significant physical injury such as asbestosis.

See Martinez v. Bailey's Louisiana, Inc., 244 F.3d 477 (Sth

Cir. 2001) (sexual harassment case where plaintiff's counsel

waived any claim of physical injury); Moody v. Maine

Central RR Co., 823 F.2d 693 (1st Cir. 1987) (railway

employee failed to establish that employer’s harassment

ets

eee AG Sn DSBS ite A DIGI wc lie I tyht ct ast Nec Bit a Rt 0 fon ine hi ait doonih Ae mc eed

caused his angina attacks and general fatigue); Alabama

Great Southern RR Co. v. Jackson, 587 So. 2d 959 (Ala.

1991) (supervisors hiding in locomotive bathroom at 2 a.m.

frightened train crewman); McMillan v. National Railroad

Passenger Corp., 648 A.2d 428 (D.C. 1994) (decided under

D.C. rather than federal law) (uninjured plaintiff failed to

show more than a minimal or negligible threat of harm, so

he was never in the zone of danger) (court states in dicta

that emotional distress must be “serious and verifiable” but

does not explain what proof is required). Consequently, these

cases tell us nothing about whether the issuing courts would

require some “manifestation” of emotional distress in FELA

cases where, as here, the plaintiffs have been physically

injured.

Moreover, the cases cited by the petitioner tell us

virtually nothing about how the lower courts are interpreting

this Court’s holdings in Gottshall and Metro-North because

most of them predate one or both of those decisions. Three

of the FELA cases and one of the Jones Act cases cited by

the railroad in favor of a manifestation requirement predate

both Gottshall and Metro-North, while the fourth FELA case

predates only Metro-North. The only FELA or Jones Act

case cited by the railroad which was decided after both

Gottshall and Metro-North is Martinez v. Bailey's Louisiana,

Inc., 244 F.3d 474 (Sth Cir. 2001) in which the plaintiff “did

not [even] plead negligent infliction of emotional distress”

as a cause of action. /d. at 477 n.2. Moreover, Martinez’s

counsel waived any claim of physical injury, either as an

event precipitating emotional distress or as a result of

emotional distress. Consequently, the court acknowledged

it did not have an opportunity to address the zone of danger

rule adopted in Gottshall. Id.

ssnncaianaiestatiaineat , ‘

Ill. The Alleged Conflict Of Authority Concerning Joint

And Several Liability Is Not Based On Cases, Such

As This One, Involving Multiple Tortfeasors Whose

Combined Negligence Resulted In Indivisible

Injuries

The railroad asserts that there is a split of authority

concerning whether damages in FELA cases should be

apportioned, with six cases from five courts approving

apportionment and four cases rejecting it. This alleged

conflict is more apparent than real. None of the purportedly

“pro-apportionment” cases cited by the railroad involve the

joint and several liability of multiple tortfeasors whose

negligence was held to result in a single, “indivisible” injury.

Instead, they involve pre-existing conditions and/or separate

and discrete injuries, apparently none of which were found

to result in “indivisible” injuries. See Sauer v. Burlington

Northern Railroad Co., 106 F.3d 1490 (10th Cir. 1997) (two

separate railroad injuries to back and pre-existing conditions

of degenerative changes of lumbar vertebrae and abnormal

curvature of spine); Varhol v. National Railroad Passenger

Corp., 909 F.2d 1557 (7th Cir. 1990) (per curiam) (alleged

aggravation of pre-existing MS by train derailment);

Akers v. Norfolk and Western Railway Co., 417 F.2d 632

(4th Cir. 1969) (upholding against railroad challenge a jury

instruction stating that the railroad was not responsible for

pre-existing conditions it neither caused nor aggravated);

Shupe v. New York Central System, 339 F.2d 998 (7th Cir.

1965) (shoulder injury and back injury resulting from

separate injuries on railroad); Gustafson v. Burlington

Northern Railroad Co., 561 N.W.2d 212 (Neb. 1997) (given

general verdict for plaintiff, trial court did not commit

reversible error in giving instruction on aggravation of pre-

existing injury that failed to say that if the jury could not

determine how much of the plaintiff's current condition

was due to aggravation, it should award damages for

the entire condition); Dale v. B&O, 552 A.2d 1037 (Pa. 1989)

(disability resulting from lifelong asthma and occupational

asbestosis) (court did not determine “whether the evidence

permits apportioning damages, or whether apportionment would

be mere speculation, and whether plaintiff or defendant has the

burden of proving the proportion of damages allegedly caused

by B&O ...”)? None of the “pro-apportionment” cases cited

by the railroad even discuss the joint and several liability of

multiple tortfeasors for indivisible injuries, let alone say they

are abandoning this rule. The failure of the petitioner to cite a

single case rejecting joint and several liability in multiple

tortfeasor situations is striking.

IV. Petitioner Exaggerates The Impact Of The Lower

Court’s Ruling And The Importance Of West Virginia

As A Forum

Contrary to the railroad’s assertions, West Virginia is not

“the venue in which virtually all” asbestos-related litigation

against Norfolk Southern and CSX is brought.’ Nor is it likely

2. The current status of the Dale v. B&O holding is unclear because

of a recent decision by an intermediate appellate court in Pennsylvania

holding that Conrail was responsible for the entire amount of damages

for the plaintiff's carpal tunnel syndrome, although the railroad

presented evidence that other activities, such as push-ups, could have

been a contributing factor. McDermott v. Consolidated Rail Corp., 768

A.2d 348, 352-53 (Pa. Super. Ct. 2001).

3. The railroad relies on certain materials contained in its lodging

that were not part of the record below. Respondents believe this lodging

should be stricken. Should the Court find it appropriate to review

petitioners’ lodging, however, they ask the court to review respondents’

lodging as well.

that the lower court’s ruling on fear of cancer claims and

joint and several liability “will contro] the asbestos-related

liability of the two major eastern railroads, Norfolk Southern

and CSX....” This is far too much influence to attribute to

a single order penned by a single judge sitting in a single

trial court in one of the many states in which the petitioner

operates. In fact, there is no way that the ruling of the lower

court, standing by itself, could possibly control the outcome

in all of the petitioner’s other asbestos cases, unless one

believes that all of the existing litigation in other courts, and

all those cases that might be brought in the future, could

somehow be transferred to, or filed in, the Circuit Court of

Mingo County, West Virginia, and that Judge Thornsbury,

the only judge sitting in that circuit, inundated by a flood of

non-resident claims, would deny any forum non conveniens

motion presented by the railroad. Of course, that is not going

to happen. |

In an effort to magnify the importance of the lower

court’s ruling, the railroad asserts that “[t]he West Virginia

Supreme Court has made it clear that it will not grant a

petition for appeal in these types of cases.” Its petition does

not explain what constitutes “these types of cases” or how

the Court “makes it clear” that it would ne’ review such cases

on appeal.‘ If the railroad is talking « ut FELA cases in

4. Although there is no appeal of right in civil cases, the

Supreme Court of Appeals of West Virginia accepts a high

percentage of petitions for appeal. Under its original jurisdiction,

the Court also rules on many issues raised by extraordinary writs

such as mandamus and prohibition. In 1999, the most recent year

for which statistics are available, the Court granted 40.5% of the

3,090 petitions for appeal and extraordinary writ it considered. 1999

Statistical Report, Supreme Court of Appeals of West Virginia. More

(Cont'd)

general, then its assertion is certainly incorrect, because that

court has frequently resolved appeals and writs arising from

FELA litigation and in many cases has ruled in favor of the

railroad.° If the railroad is talking about “asbestos” cases,

the assertion is also incorrect, because that court has reviewed

asbestos litigation on many occasions.°®

As noted below, the lower court’s rulings on fear of

cancer claims and joint and several liability are consistent

with the position taken on those issues by numerous courts

in other jurisdictions. Moreover, in choosing a venue in

which to file suit, plaintiffs’ counsel have many factors to

(Cont'd) ;

specifically, it granted 30% of the 456 petitions for appeal it

considered in civil cases. Jd. To put these figures in perspective,

“[o]n average, all state courts of last resort granted only 10 percent

of discretionary petitions considered in 1997.” Jd.

5. See, e.g., Finley v. Norfolk and Western Railway Co., 540

S.E.2d 144 (W. Va. 1999) (per curiam) (uphviding on appeal a lower

court ruling that denied the plaintiff's motion for new trial); Gardner

v. CSX Transp., Inc., 498 S.E.2d 473 (W. Va. 1997) (upholding on

appeal a summary judgment and directed verdict in favor of the

railroad); Norfolk and Western Railway Co. v. Tsapis, 400 S.E.2d

239 (W. Va. 1990) (writ of prohibition) (holding that doctrine of

forum non conveniens applies in FELA cases).

6. See, e.g., Marlin v. Bill Rich Const., Inc., 482 S.2d 620

(W. Va. 1996); State ex rel. Appalachian Power Co. v. MacQueen,

479 S.E.2d 300 (W. Va. 1996); In Re State Public Bldg. Asbestos

Litigation, 454 S.E.2d 413 (W. Va. 1994); Abbott v. Owens-Corning

Fiberglas Corp., 444 S.E.2d 285 (W. Va. 1994); State ex rel. CCR

Ltd. v. MacQueen, 441 S.E.2d 658 (W. Va. 1994); Davis v. Celotex

Corp., 420 S.E.2d 557 (W. Va. 1992); State ex rel. H.K. Porter Co.

v. White, 386 S.E.2d 25 (W. Va. 1989).

consider in addition to how the forum court has ruled, or

may rule, on those two particular issues. For example,

counsel must consider how congested the court system is,

what kind of jury may be empaneled, how convenient the

forum will be to an often elderly or infirm client who finds

it difficult to travel, how accessible witnesses will be, the

procedural and evidentiary rules of the forum, and the

possibility that the chosen forum may dismiss a non-

resident’s claim on forum non conveniens grounds. Indeed,

West Virginia’s courts have frequently dismissed FELA

cases pursuant to such motions, as evidenced by respondents’

lodging, which includes 15 dismissal orders. In addition,

many law firms based in West Virginia, including

respondent’s counsel, have frequently filed FELA cases in

other states such as Virginia, Kentucky and Ohio, and many

firms based in surrounding states have never filed a single

FELA case in West Virginia.

The cases at bar certainly do not illustrate the problem

alleged by Petitioner, because they do not involve a mass

filing by non-resident plaintiffs seeking a more friendly

forum than their home states. These five consolidated cases

were tried in Williamson, West Virginia, and all of the

plaintiffs had strong connections with the forum state.

The lead plaintiff, Homer Dye, was born in Williamson, West

Virginia and has lived there all his life. He worked for the

Norfolk and Western for forty-three years and seven months,

all but three months of which he worked out of the

Williamson, West Virginia yard (the remaining three months

were at Matewan, West Virginia). Mellington Wheeler was

born in Milton, West Virginia and lived in Ceredo,

West Virginia at the time of trial. He worked for the Norfolk

and Western from 1955 to 1961 as a fireman and engineer at

the Kenova, West Virginia yard. Jack Lambert had lived for

nineteen years at Delbarton, West Virginia when these cases

went to trial. Before that, he lived at Thacker, West Virginia.

He worked for the railroad at various locations in West

Virginia, including Thacker, McCarr, Matewan, Panther and

Williamson. Jethro Walker was a lifetime resident of Ode,

West Virginia, who hired in with the railroad at Besoco, West

Virginia, and worked on the New River Division, which

included much of Southern West Virginia. Leo Thacker was

living in Rome, Ohio, at the time of trial, but he was born in

Huntington, West Virginia and srew up in Wayne County,

West Virginia. As a maintenance of way laborer, he worked

on a number of sections, including one that extended from

Portsmouth, Ohio to Norfolk, Virginia. At least part of his

work for the railroad and resulting asbestos exposure was in

Williamson, West Virginia, where he worked on track near

the roundhouse.

In its petition, the railroad notes that there were

approximately 2,500 asbestos-related railroad cases filed in

West Virginia according to an administrative order filed

by the Supreme Court of Appeals on December 28, 2000.

-The petition does not indicate, however, how many of those

2,500 plaintiffs were West Virginia residents, nor how many

of the non-resident plaintiffs had worked for the railroad in

West Virginia. Nor does it give the reader any basis for

comparing this figure to the asbestos-related caseload in other

states. Because railroads have historically been a major

employer in many West Virginia counties, it should come

as no surprise that this state has a significant FELA caseload.

In fact, the C&O, a predecessor to CSX, maintained what

was widely acclaimed as the largest steam locomotive

repair facility in the world at Huntington, West Virginia.

The Norfolk and Western Railway Company and the

Virginian Railway, predecessors in interest to today’s

| on

18 —

Norfolk Southern Railway Company, also maintained track

and facilities in a host of West Virginia communities,

including Bluefield, Logan and Williamson.

The railroad cites four mass filtigs of FELA claims in

the Northern Panhandle of West Virginia by a law firm from

Pittsburgh, Pennsylvania. Although the railroad notes that

many of these plaintiffs were non-residents, it does not

indicate how many of the non-residents worked for the

railroad in West Virginia at some point in time, or whether

any forum non conveniens motions were filed. Without this

information, the significance, if any, of the mass filings is at

best unclear.

V. The Rulings Of The Lower Court Were Correct

A. Emotional Distress

Because all respondents suffered significant injuries

from their occupational exposur: to asbestos and silica, two

widely recognized human lung carcinogens, the trial court

properly instructed the jury that it could award damages for

emotional distress, including fear of cancer. Its ruling was

consistent with this Court’s Metro-North decision, which

held that a person exposed to a toxic substance such as

asbestos cannot recover damages for fear of cancer unless

and until he “manifests symptoms of a disease.” 521 U.S. at

427. In this case, all respondents have been diagnosed with

a mixed dust pneumoconiosis, including asbestosis and

silicosis, thus meeting that requirement. This Court has never

required a plaintiff who currently suffers from a compensable

injury or illness to also establish a physical manifestation of

his emotional distress, nor should it, although invited to do

so in both Gottshail and Metro-North. In fact, in Metro-

North, this Court recognized that “[c]ommon law courts do

permit a plaintiff who suffers from a disease to recover for

related negligently caused emotional distress . . .”, 521 U.S.

at 432, and that “[t]he law, ... does permit recovery for

emotional distress where that distress accompanies a physical

injury,...” /d. at 429-30. It also distinguished Lavelle v.

Owens-Corning Fiberglas Corp., 30 Ohio Misc.2d 11,

507 N.E.2d 476, 480-81 (1987), which allowed the recovery

of damages for fear of cancer, as a case involving an

“asbestosis-afflicted plaintiff’ who “fell within a category

where the law already permitted recovery for emotional

distress.” 521 U.S. at 437.

In its decisions concerning emotional distress damages

in FELA cases, this Court has looked for guidance to the

common law. Historically, plaintiffs who suffered a physical

injury or illness have been allowed to recover damages for

emotional distress related to their injuries or the conduct

which caused them. See Restatement (Second) of Torts

§ 456 (1965) (“Emotional Disturbance Resulting From An

Actionable Injury Or The Conduct Which Caused It”).

Many state and local courts have allowed fear of cancer

claims in cases involving asbestosis or asbestos related

pleural disease without requiring any physical manifestation

of emotional distress. See, e.g., Dunn v. HOVIC, | F.3d 1362,

1367 (3d Cir. 1993); Herber v. Johns-Manville Corp., 785

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

Sales Corp., 781 F.2d 394, 413-14 (Sth Cir. 1986) (en banc);

Griffin v. Keene Corp., No. 85 C 10748, 1990 WL 93292

(N.D. Ill. June 19, 1990); Mauro v. Owens Corning Fiberglas

Corp., 542 A.3d 16 (N.J. Super. 1988); Lavelle v. Owens-

Corning Fiberglas Corp., 30 Ohio Misc.2d 11, 507 N.E.2d

476 (C.P. 1987); Eagle-Picher Industries, Inc. v. Cox, 481

So. 2d 517, 526-29 (Fla. Dist. Ct. App. 1985); Denton v.

Southern Railway Co., 845 S.W.2d 885, 888-89 (Tenn. Ct.

App. 1993) (FELA).

Allowing railway employees who suffer from asbestosis

or related diseases to recover damages for a reasonable fear

of developing cancer does not “open the floodgates,” a

concern expressed in this Court’s earlier emotional distress

cases. Accordingly, such claims are permitted under FELA

in keeping with its remedial and humanitarian purposes.

B. Joint And Several Liability

Given the indivisible nature of the lung diseases of

Respondents Wheeler and Thacker (the only cases arguably

involving non-railroad exposure), the lower court did not

err in applying joint and several liability, even though there

may have been asbestos exposure at other job sites. See Borel

v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1094-

96 (Sth Cir. 1973) (asbestosis is an indivisible injury);

Restatement (Second) of Torts § 433A, comment 1 (1965)

(damages for most personal injuries cannot be apportioned),

Trial transcript (7/24/98) at 49 (testimony by Dr. Gaziano

that one has to consider the cumulative effect with dust

diseases because all exposures contribute to the disease).

FELA provides that a carrier is responsible for any injury

caused, in whole or in part, by its negligence. 45 U.S.C.

§ 51. FELA provides no grounds for diminishing that

responsibility other than the contributory negligence, if any,

of the employee. See 45 U.S.C. § 53. This statutory language

is reinforced by the common law.

At common law, multiple tortfeasors whose negligence

combined to cause a single, indivisible injury were jointly

and severally liable for the plaintiff's loss. Edmonds v.

Compagnie Generale Transatlantique, 443 U.S. 256, 260 &

n.8 (1979); Restatement (Second) of Torts §§ 875, 879

(1977); Restatement of Torts §§ 875, 879 (1939); Dan B.

Dobbs, The Law Of Torts § 390 at 1091 (2000). It was the

function of the judge, rather than the jury, to determine

whether an injury was divisible or indivisible. Restatement

(Second) of Torts § 434 (1965). If a party believed that

apportionment of damages was appropriate, it had the burden

of proving what portion of the damages it should be

responsible for. Restatement (Second) of Torts § 433 B (2)

(1965). When Congress enacted FELA, it did not abolish

the common law doctrine of joint and several liability. Over

the many years since FELA was passed, state and federal

courts have frequently recognized that multiple tortfeasors

who cause an indivisible injury are jointly and severally liable

to the plaintiff.’ Congress, which must have been aware of

these decisions, has never seen fit to amend FELA to provide

for some form of proportionate liability of joint tortfeasors.

Given the delicate balance of statutory compensation

schemes such as FELA, and the ‘variety of apportionment

7. See, e.g., Lockhard v. Missouri Pacific RR, 894 F.2d 299,

305 (8th Cir. 1990); Stephens v. Southern Pacific Transportation

Co., 991 F. Supp. 618, 620 (S.D. Tex. 1998); Rice v. Cincinnati,

New Orleans & Pacific Railway Co., 920 F. Supp. 732, 735 (E.D.

Ky. 1996); Mazyck v. Long Island Railroad Co., 896 F. Supp. 1330,

1332-333 (E.D.N.Y. 1995); Syllabus Point 1, Gaulden v. Burlington

Northern, Inc., 654 P.2d 383 (Kan. 1982); Narcise v. Illinois Central

Gulf Railroad Co., 427 So. 2d 1192, 1195 (La. 1983); Lewis v.

National Railroad Passenger Corp., 176 Misc.2d 947, 675 N.Y.S.2d

504 (1998); Denton v. Southern Railway Co., 854 S.W.2d 885, 888

(Tenn. Ct. App. 1993).

mechanisms that might be substituted for traditional joint and

several liability, any change to the apportionment rules under

FELA should come from Congress, rather than the courts.

Contrary to the railroad’s assertions, joint and several

liability is not an anachronism, but a widely applied doctrine of

continuing vitality, not just here but abroad. It is applied not

only in FELA cases but in Jones Act cases," general maritime

personal injury cases, Coats v. Penrod Drilling Corp., 61 F.3d

1113 (Sth Cir. 1995), Longshoremen’s and Harbor Workers’

Compensation (LHWC) cases, Edmonds v. Compagnie

Generale Transatlantique, 443 U.S. 256 (1979), Death on the

High Seas Act (DOHSA) cases, /n Re Ocean Foods Boat Co.,

692 F. Supp. 1253, 1264 (D. Ore. 1988), Comprehensive

Environmental Response, Compensation and Liability Act

(CERCLA) cases’ and Federal Water Pollution Control Act

(FWPCA) cases. United States v. M/V Big Sam, 681 F.2d 432,

439 (Sth Cir. 1982). In addition, “joint and several liability with

8. Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1430-32

(Sth Cir. 1988); Joia v. Jo-Ja Serv. Corp., 817 F.2d 908, 917 (ist

Cir. 1987), Dicola v. American Steamship Owners Mut. Protection

& Indemn. Assn. (In Re Prudential Lines, Inc.), 170 B.R. 222, 235

(S.D.N.Y. 1995); Johnson v. National Steel & Shipbuilding Co.,

742 F. Supp. 1062, 1065 (S.D. Cal. 1990); Texaco v. Addison, 613

So. 2d 1193, 1202 (Miss. 1993).

9. Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153

F.3d 344, 348 (6th Cir. 1998); Ohm Remediation Servs. v. Evans

Cooperage Co., 116 F.3d 1574, 1579 (Sth Cir. 1997); Rumpke of

Indiana v. Cummins Engine Co., 107 F.3d 1235, 1240 (7th Cir.

1997); B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir. 1996);

Price v. U.S. Navy, 39 F.3d 1011 (9th Cir. 1994); United States v.

Rohm & Haas Co., 2 F.3d 1265, 1280 (3d Cir. 1993); O'Neill v.

Picillo, 883 F.2d 176, 178-79 (1st Cir. 1989); United States v.

Monsanto Co., 858 F.2d 160, 171-73 (4th Cir. 1988).

contribution has long been the rule in England and almost all

other countries, most of which have comparative responsibility

liability regimes.” Richard W. Wright, Allocating Liability

Among Multiple Responsible Causes: A Principled Defense of

Joint and Several Liability for Actual Harm and Risk Exposure,

21 U. Cal. Davis L. Rev. 1141, 1185 (1988).

As recently as twenty-five years ago, joint and several

liability was the rule in every state in the country. Coats v.

Penrod Drilling Corp., 61 F.3d at 1130-31. In the name of “tort

reform,” a number of states have since abandoned or modified

traditional joint and several liability, but fifteen states (one more

than the number of states using the zone of danger test when

Gottshall was decided) still retain pure joint and several

liability, while twerfty other states retain it in a modified or

limited farm. Restatement (Third) of Torts: Apportionment

of Liability § 17, reporter’s note at 149 (2000). For example,

some states apply joint and several liability when the plaintiff

is free of negligence (under which approach respondents

would be able to recover), or apply joint and several liability

only in certain kinds of cases.'°

10. Significantly, somestates have enacted legislation

expressly retaining joint and several liability in cases involving toxic

substances such as asbestos. See Haw. Rev. Stat. § 663-10.9(2)(c);

In Re Hawaii Federal Asbestos Cases, 960 F.2d 806, 818-19 (9th

Cir. 1992); Ill. Comp. Stat. § 5/2-1118; Padgett v. A&M Insulation

Co., 640 N.E.2d 21, 23-4 (Ill. Ct. App. 1994); N.J. Stat. Ann. § 2A:

115-5.3(d)(1) & (f); Stevenson v. Keene Corp., 603 A.2d 521

(N.J. Super. Ct. 1992), aff'd, per curiam, 620 A.2d 1047 (N.J. 1993);

Tex. Civ. Prac. & Rem. Code Ann. § 33.013(c)(2); McNair v. Owens-

Corning Fiberglas Corp., 890 F.2d 753 (Sth Cir. 1989); Wash. Rev.

Code § 4.22.070(3)(a); Sofie v. Fibreboard Corp., 771 P.2d 711,

728 (Wash. 1989).

Regardless of what rules the state legislatures may

choose to apply in tort cases, however, this court must be

guided by the intent of Congress when it enacted FELA to

shift the cost of industrial injuries and deaths to employers.

See Kernan v. American Dredging Co., 355 U.S. 426, 431-

32 (1958). Abandoning the rule of joint and several liability

in cases where the negligence of multiple tortfeasors results

in an indivisible injury would be inconsistent with that goal.

Under joint and several liability, the defendant bears the

burden of locating and suing other potentially responsible

tortfeasors and the risk that some or all of them may be

dissolved, insolvent, immune from suit or simply not worth

pursuing. Under the rule of several liability advocated by

the petitioner, the injured party, even if wholly free of any

contributory negligence, would bear those risks and burdens.

CONCLUSION

The Norfolk Southern’s petition for certiorari should be

denied.

Respectfully Submitted,

JAMES A. MCKOWEN

JAMES F. HUMPHREYS

& AssociaTEs, L.C.

Attorneys for Respondents

707 Virginia Street, East

Suite 1113

Charleston, West Virginia 25301

(304) 347-5050

APPENDIX

| oe ee

APPENDIX — ADDITIONAL RELEVANT

DOCUMENTS

[Omitted here but submitted separately as Lodging]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.