AMICUS NEWS

No. 13. February 21, 1997

SUPREME COURT HEARS ARGUMENTS FOR EMOTIONAL DISTRESS AND MONITORING IN FELA ASBESTOS CASE

Does FELA allow workers who were exposed to asbestos in the workplace, but who have no current symptoms of disease, to recover for emotional distress and the cost of medical monitoring?

Metro-North Commuter Railroad Co. v. Buckley, No. 96-320 (cert. granted Nov. 1, 1996) is the test case for one of about 140 workers who were employed to remove insulation from pipes under the Grand Central Terminal in New York in the mid-1980s. After a day underground, the workers would emerge covered with asbestos dust, earning for them the nickname "Snowmen of Grand Central." Buckley brought suit under the Federal Employers Liability Act. Although he exhibits no present symptoms of asbestos disease, his chances of dying of such a disease have been increased. Buckley sought damages for negligent infliction of emotional distress along with the costs of medical monitoring for early detection of asbestos disease. The railroad admitted negligence. However, the district court ruled that Buckleys damage claims were not cognizable under the FELA. The Second Circuit reversed, and the Supreme Court granted review. AAJ submitted an amicus curiae brief in support of Buckley

The Court heard oral arguments on Feb. 18.

Sheila Birnbaum, arguing on behalf of Metro-North, opened with the railroads primary reason for reversal: Affirmance would lead to "an asbestos litigation crisis" due to a flood of claims for emotional distress. She returned to this point several times during her argument, contending that allowing Buckleys cause of action would open the floodgates to 21 million potential claimants. She also asserted that Buckley suffered no physical injury, was not withing the "zone of danger," and exhibited no real signs of emotional distress. Rather, he was merely "angry" at his employer. This last statement drew a stern response from Justice OConnor. Buckley had every reason to be angry, she stated, since he was exposed for three years to a known carcinogen. Justice Ginsberg pointed out that 12 states recognize that ingesting a toxic substance is a physical impact sufficient to support a claim for emotional distress. Justice Stevens inquired whether the costs of medical testing and monitoring made necessary by the exposure constitute injury. Birnbaum replied that such costs are "damages" but not "injury."

Arguing on behalf of Buckley, Charles Goetch suggested that courts could distinguish well-founded claims for emotional distress from frivolous ones. Justice Breyer expressed the view that, given the number of known carcinogens Americans are commonly exposed to, the proposed test would not screen out many claims. Goetch emphasized that the question presented to the Court involved claims by FELA workers, a relatively small group, not the claims of the millions of others who have been exposed to asbestos. However, Justice Breyer remarked that it would be difficult to confine the principle to FELA cases. Justice OConnor suggested that it would be easy to find a reputable expert to support the seriousness of virtually any type of exposure. "Or a disreputable one," added Justice Scalia.

In the past, when state courts have diverged regarding common law tort rules, the Court has adopted the more liberal position for FELA, citing the remedial purpose of the statute. However, Chief Justice Rehnquist stated during argument that the Court has backed away from this view, favoring a more "neutral" position that would simply adhere to the majority rule. It remains to be seen whether this "neutrality" rejects not only the policy of favoring worker recovery but also the railroads policy of avoiding a flood of litigation.