OCTOBER TERM, 1996
Syllabus
METRO-NORTH COMMUTER RAILROAD CO.
v. BUCKLEY
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 96-320. Argued February 18, 1997-Decided June 23,1997
Respondent Buckley was exposed to insulation dust containing
asbestos while employed as a pipefitter by petitioner railroad.
Since attending an asbestos awareness class, he has feared, with
some cause, that he will develop cancer. Thus far, periodic medical
checkups have revealed no evidence of asbestos-related disease.
Buckley filed suit under the Federal Employers' Liability Act
(FELA)-which permits a railroad worker to recover for an "injury
... resulting from" his employer's "negligence," 45 U. S. C. §
51-seeking damages for negligently inflicted emotional distress and
to cover the cost of future checkups. The District Court dismissed
the suit after hearing Buckley's case, finding that, because there
had been no physical impact from his exposure, the FELA did not
permit recovery for his emotional injury. See
Consolidated Rail
Corporation v.
Gottshall, 512 U. S. 532. It did not
discuss his medical monitoring claim. In reversing, the Second
Circuit held that his contact with the insulation dust was what the
Gottshall Court had called a "physical impact" that, when
present, permits a FELA plaintiff to recover for accompanying
emotional distress, and that he could also recover the costs of
checkups made necessary by the exposure.
Held:
1. Buckley cannot recover emotional distress damages unless, and
until, he manifests symptoms of a disease. Pp. 428-438.
(a) The critical issue is whether Buckley's physical contact
with insulation dust amounts to a "physical impact" as that term
was used in
Gottshall, an emotional distress case. In
interpreting the word "injury" in FELA § 1, the
Gottshall
Court set forth several general legal principles applicable here:
The FELA's purpose is basically humanitarian; the FELA expressly
abolishes or modifies a host of common-law limitations on recovery;
it should be interpreted liberally, but liability rests upon
negligence and the railroad is not an insurer for all employee
injuries; and those common-law principles not rejected in the
statute's text are entitled to great weight in interpreting the
FELA and playa significant role in determining whether, or when, an
employee can recover damages for negligently inflicted emotional
distress. The Court also identified more specific legal
propositions: The common law of torts does not permit recovery for
negligently inflicted emotional distress
425
unless the distress falls within specific categories that
amount to recovery-permitting exceptions; and FELA § 1, mirroring
many States' law, allows recovery for such distress where a
plaintiff satisfies the common law's "zone of danger" test, which
permits plaintiffs to recover for emotional injury if they
sustain a physical impact from, or are placed in immediate
risk of physical harm by, a defendant's negligence. Pp.
428-430.
(b) The "physical impact" to which
Gottshall referred
does not include a 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. First, each of the many state cases that
Gottshall cited in support of the "zone of danger" test
involved a threatened physical contact that caused, or might have
caused, immediate traumatic harm. Second,
Gottshall's
language, read in light of this precedent, seems similarly limited.
Third, with only a few exceptions, common-law courts have denied
recovery for emotional distress to plaintiffs who, like Buckley,
are disease and symptom free. Fourth, general policy reasons to
which
Gottshall referred in explaining why common-law courts
have restricted recovery for certain classes of negligently caused
harms, see 512 U. S., at 557, are present in this case. Thus, there
is no legal basis for adopting the Second Circuit's emotional
distress recovery rule. Pp. 430-436.
(c) Buckley's several arguments in reply-that his evidence of
exposure and enhanced mortality risk is as strong a proof as an
accompanying physical symptom of genuine emotional distress, that a
series of common-law cases support his position, and that the
FELA's "humanitarian" nature warrants a holding in his favor-are
unpersuasive. Pp. 436-438.
2. Buckley has not shown that he is legally entitled to recover
medical monitoring costs. Insofar as the Second Circuit's opinion
suggests it intended to apply the basic damages law principle that
a plaintiff can recover medical expenses reasonably related to an
underlying injury, the holding that the emotional distress here is
not a compensable injury also requires reversal on this point.
Insofar as the court rested its holding upon the broader ground
that medical monitoring costs themselves represent a separate
negligently caused economic injury for which FELA recovery is
possible, it suggests the existence of a tort law cause of action
permitting the recovery of medical cost damages in a lump sum and
irrespective of insurance, a holding beyond the bounds of the
"evolving common law" as it currently stands.
Gottshall,
supra, at 558. The cases authorizing recovery for medical
monitoring for asymptomatic plaintiffs do not endorse such a
full-blown, traditional tort law cause of action, but have instead
suggested, or imposed, special limit a-
426
tions on that remedy. Given the mix of competing general policy
considerations identified in
Gottshall, Buckley's
policy-based arguments that the FELA contains such an
unqualified tort liability rule are unconvincing. Pp.
438-444.
79 F.3d
1337, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, and
THOMAS, JJ., joined. GINSBURG, J., filed an opinion concurring in
the judgment in part and dissenting in part, in which STEVENS, J.,
joined,
post, p. 444.
Sheila L. Birnbaum argued the cause for petitioner.
With her on the briefs were Barbara Wrubel, Douglas W Dunham,
Ellen P. Quackenbos, and Richard K. Bernard.
Charles C.
Goetsch argued the cause for
respondent.
With him on the brief were George J. Cahill, Jr., and John G.
DiPersia. *
JUSTICE BREYER delivered the opinion of the Court.
The basic question in this case is whether a railroad worker
negligently exposed to a carcinogen (here, asbestos) but without
symptoms of any disease can recover under the
*Briefs of
amici curiae urging reversal were filed for
the Port Authority of New York and New Jersey by
Milton H.
Pachter, Arthur P. Berg, and
Anne M. Tannenbaum; for the
American Insurance Association by
Kenneth W Starr and
Craig A. Berrington; for the American Tort Reform
Association by
Victor E. Schwartz, Mark A. Behrens, and
Sherman Joyce; for the Association of American Railroads by
Robert W Blanchette and
Ralph G.
Wellington;
for the Chemical Manufacturers Association et al. by
Steven R.
Kuney, Donald D. Evans, Stephen A. Bokat, and
Robin S.
Conrad; for the Defense Research Institute et al. by
James M. Doran, Jr., Jan S.
Amundson, and
Quentin
Riegel; for Owens Corning by
Anne E. Cohen; for
Owens-Illinois, Inc., by
W Donald McSweeney; for the Product
Liability Advisory Council, Inc., by
Robert N. Weiner; and
for the Washington Legal Foundation by
Daniel J.
Popeo and
Penelope Kilburn Shapiro.
Briefs of
amici curiae urging affirmance were filed for
the Association of Trial Lawyers of America et al. by
Ronald
Simon, Jeffrey R. White, and
Howard F.
Twiggs;
for the International Association of Machinists and Aerospace
Workers et al. by
Michael L. Rustad; and for the Rail Labor
Executive Association by
Richard N. Pearson.
427
Federal Employers' Liability Act (FELA or Act), 35 Stat. 65, as
amended, 45 U. S. C. § 51
et seq., for negligently inflicted
emotional distress. We conclude that the worker before us here
cannot recover unless, and until, he manifests symptoms of a
disease. We also consider a related claim for medical monitoring
costs, and we hold, for reasons set out below, that the respondent
in this case has not shown that he is legally entitled to recover
those costs.
I
Respondent, Michael Buckley, works as a pipefitter for
Metro-North, a railroad. For three years (1985-1988) his job
exposed him to asbestos for about one hour per working day. During
that time Buckley would remove insulation from pipes, often
covering himself with insulation dust that contained asbestos.
Since 1987, when he attended an "asbestos awareness" class, Buckley
has feared that he would develop cancer-and with some cause, for
his two expert witnesses testified that, even after taking account
of his nowdiscarded 15-year habit of smoking up to a pack of
cigarettes per day, the exposure created an
added risk of
death due to cancer, or to other asbestos-related diseases, of
either 1% to 5% (in the view of one of plaintiff's experts), or 1%
to 3% (in the view of another). Since 1989, Buckley has received
periodic medical checkups for cancer and asbestosis. So far, those
checkups have not revealed any evidence of cancer or any other
asbestos-related disease.
Buckley sued Metro-North under the FELA, a statute that permits
a railroad worker to recover for an "injury ... resulting ... from"
his employer's "negligence." 45 U. S. C. § 51. He sought damages
for his emotional distress and to cover the cost of future medical
checkups. His employer conceded negligence, but it did not concede
that Buckley had actually suffered emotional distress, and it
argued that the FELA did not permit a worker like Buckley, who had
suffered no physical harm, to recover for injuries of either
sort.
428
After hearing Buckley's case, the District Court dismissed the
action. The court found that Buckley did not "offer sufficient
evidence to allow a jury to find that he suffered a real emotional
injury." App. 623. And, in any event, Buckley suffered no "physical
impact"; hence any emotional injury fell outside the limited set of
circumstances in which, according to this Court, the FELA permits
recovery.
Id., at 620; see
Consolidated Rail
Corporation v.
Gottshall, 512 U. S. 532 (1994). The
District Court did not discuss Buckley's further claim for the
costs of medical monitoring.
Buckley appealed, and the Second Circuit reversed.
79 F.3d
1337 (1996). Buckley's evidence, it said, showed that his
contact with the insulation dust (containing asbestos) was
"massive, lengthy, and tangible," id., at 1345, and that the
contact "would cause fear in a reasonable person," id., at 1344.
Under these circumstances, the court held, the contact was what
this Court in
Gottshall had called a "physical impact"-a
"physical impact" that, when present, permits a FELA plaintiff to
recover for accompanying emotional distress. The Second Circuit
also found in certain of Buckley's workplace statements sufficient
expression of worry to permit sending his emotional distress claim
to a jury. Finally, the court held that Buckley could recover for
the costs of medical checkups because the FELA permits recovery of
all reasonably incurred extra medical monitoring costs whenever a
"reasonable physician would prescribe ... a monitoring regime
different than the one that would have been prescribed in the
absence of" a particular negligently caused exposure to a toxic
substance. 79 F. 3d, at 1347 (internal quotation marks
omitted).
We granted certiorari to review the Second Circuit's holdings in
light of
Gottshall.
II
The critical question before us in respect to Buckley's
"emotional distress" claim is whether the physical contact with
insulation dust that accompanied his emotional distress
429
amounts to a "physical impact" as this Court used that term in
Gottshall. In
Gottshall, an emotional distress case,
the Court interpreted the word "injury" in FELA § 1, a provision
that makes "[e]very common carrier by railroad ... liable in
damages to any person suffering injury while ... employed" by the
carrier if the "injury" results from carrier "negligence." 45 U. S.
C. § 51. In doing so, it initially set forth several general legal
principles applicable here.
Gottshall described FELA's
purposes as basically "humanitarian."
Gottshall, supra, at
542; see also,
e. g., Urie v.
Thompson, 337 U. S. 163 (1949). It
pointed out that the Act expressly abolishes or modifies a host of
common-law doctrines that previously had limited recovery. See,
e. g., 45 U. S. C. §§ 51, 53, and 54. It added that this
Court has interpreted the Act's language "liberally" in light of
its humanitarian purposes.
Gottshall, supra, at 543. But, at
the same time, the Court noted that liability under the Act rests
upon "negligence" and that the Act does not make the railroad "'the
insurer'" for all employee injuries. 512 U. S., at 543 (quoting
Ellis v.
Union Pacific R. Co., 329 U. S. 649, 653
(1947)). The Court stated that "common-law principles," where not
rejected in the text of the statute, "are entitled to great weight"
in interpreting the Act, and that those principles "play a
significant role" in determining whether, or when, an employee can
recover damages for "negligent infliction of emotional distress."
512 U. S., at 544. See also id., at 558 (SOUTER, J., concurring)
(Court's duty "in interpreting FELA ... is to develop a federal
common law of negligence ... informed by reference to the evolving
common law");
Atchison, T. & S.
F. R. Co. v.
Buell, 480 U.
S. 557 (1987).
The Court also set forth several more specific legal
propositions. It recognized that the common law of torts does not
permit recovery for negligently inflicted emotional distress
unless the distress falls within certain specific categories
that amount to recovery-permitting exceptions. The law,
430
for example, does permit recovery for emotional distress where
that distress accompanies a physical injury, see,
e. g.,
Simmons v.
Pacor, Inc., 543 Pa. 664, 678, 674 A. 2d
232, 239 (1996); Restatement (Second) of Torts § 924(a) (1977), and
it often permits recovery for distress suffered by a close relative
who witnesses the physical injury of a negligence victim,
e. g.,
Dillon v.
Legg, 68 Cal. 2d 728, 441 P. 2d 912 (1968);
Gottshall, 512 U. S., at 549, n. 10 (citing cases). The
Court then held that FELA § 1, mirroring the law of many States,
sometimes permitted recovery "for damages for negligent infliction
of emotional distress," id., at 550, and, in particular, it does so
where a plaintiff seeking such damages satisfies the common law's
"zone of danger" test. It defined that test by stating that the law
permits "recovery for emotional injury" by
"those plaintiffs who sustain a physical impact as a
result of a defendant's negligent conduct, or who are placed in
immediate risk of physical harm by that conduct." Id., at
547-548 (emphasis added).
The case before us, as we have said, focuses on the italicized
words "physical impact." The Second Circuit interpreted those words
as including a simple physical contact with a substance that might
cause a disease at a future time, so long as the contact was of a
kind that would "cause fear in a reasonable person." 79 F. 3d, at
1344. In our view, however, the "physical impact" to which
Gottshall referred does not include a simple physical
contact with a substance that might cause a disease at a
substantially later timewhere that substance, or related
circumstance, threatens no harm other than that disease-related
risk.
First,
Gottshall cited many state cases in support of its
adoption of the "zone of danger" test quoted above. And 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.
431
Keck v.
Jackson, 122 Ariz. 114, 593 P. 2d 668
(1979) (car accident);
Towns v.
Anderson, 195 Colo.
517, 579 P. 2d 1163 (1978) (gas explosion);
Robb v.
Pennsylvania R. Co., 58 Del. 454, 210 A. 2d 709 (1965)
(train struck car);
Rickey v.
Chicago Transit
Authority, 98 Ill. 2d 546, 457 N. E. 2d 1 (1983) (clothing
caught in escalator choked victim);
Shuamber v.
Henderson, 579 N. E. 2d 452 (Ind. 1991) (car accident);
Watson v.
Dilts, 116 Iowa 249, 89 N. W. 1068 (1902)
(intruder assaulted plaintiff's husband);
Stewart v.
Arkansas Southern R. Co., 112 La. 764, 36 So. 676 (1904)
(train accident);
Purcell v.
St. Paul City R. Co., 48
Minn. 134, 50 N. W. 1034 (1892) (near streetcar collision);
Bovsun v.
Sanperi, 61 N. Y. 2d 219, 461 N. E. 2d 843
(1984) (car accident);
Kimberly v.
Howland, 143 N. C.
398, 55 S. E. 778 (1906) (rock from blasting crashed through
plaintiffs' residence);
Simone v.
Rhode Island Co.,
28 R. 1. 186, 66 A. 202 (1907) (streetcar collision);
Mack
v.
South-Bound R. Co., 52 S. C. 323, 29 S. E. 905 (1898)
(train narrowly missed plaintiff);
Gulf, C. & S.
F.
R. Co. v.
Hayter, 93 Tex. 239, 54 S. W. 944 (1900)
(train collision);
Pankopf v.
Hinkley, 141 Wis. 146,
123 N. W. 625 (1909) (automobile struck carriage);
Garrett
v.
New Berlin, 122 Wis. 2d 223,362 N. W. 2d 137 (1985) (car
accident). Cf.
Deutsch v.
Shein, 597 S. W. 2d 141
(Ky. 1980) (holding that exposure to X rays was "physical contact"
supporting recovery for emotional suffering where immediate
physical harm to fetus was suspected).
Second,
Gottshall's language, read in light of this
precedent, seems similarly limited. 512 U. S., at 555 ("zone of
danger test ... is consistent with FELA's central focus on physical
perils");
id., at 556 (quoting
Lancaster v.
Norfolk &
Western R. Co., 773
F.2d 807, 813 (CA7 1985)) (FELA seeks to protect workers" 'from
physical invasions or menaces' "), cert. denied, 480 U. S. 945
(1987); 512 u. S., at 556 (employer should be liable for "emotional
injury caused by the apprehension of physical impact"); id., at
547-548 (quoting Pearson, Liability to Bystanders for Negligently
Inflicted Emotional Harm-A Comment on the Nature of Arbitrary
Rules,
432
34 U. Fla. L. Rev. 477, 488-489 (1982)) (" '[T]hose within the
zone of danger of physical impact'" should be able to "'recover for
fright'" because" 'a near miss may be as frightening as a direct
hit"').
Taken together, language and cited precedent indicate that the
words "physical impact" do not encompass every form of "physical
contact." And, in particular, they do not include a contact that
amounts to no more than an exposure-an exposure, such as that
before us, to a 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.
Third, common-law precedent does not favor the plaintiff.
Common-law courts do permit a plaintiff who suffers from a
disease to recover for related negligently caused emotional
distress, see
supra, at 429, and some courts permit a
plaintiff who exhibits a physical symptom of exposure to recover,
see,
e. g., Herber v.
Johns-Manville Corp., 785 F.2d
79, 85 (CA3
1986); Mauro v.
Owens-Corning Fiberglas
Corp., 225 N. J. Super. 196, 542 A. 2d 16 (App. Div. 1988). But
with only a few exceptions, common-law courts have denied recovery
to those who, like Buckley, are disease and symptom free.
E. g.,
Burns v.
Jacquays Mining Corp., 156 Ariz. 375, 752 P. 2d
28 (Ct. App. 1987), review dism'd, 162 Ariz. 186, 781 P. 2d 1373
(1989);
Mergenthaler v.
Asbestos Corp. of Am., 480 A.
2d 647 (Del. 1984);
Eagle-Picher Industries, Inc. v.
Cox,
481 So. 2d 517 (Fla. App. 1985), review denied, 492 So. 2d 1331
(Fla. 1986);
Capital Holding Corp. v.
Bailey, 873 S.
W. 2d 187 (Ky. 1994);
Payton v.
Abbott Labs, 386
Mass. 540, 437 N. E. 2d 171 (1982);
Simmons v.
Pacor,
Inc., 543 Pa. 664, 674 A. 2d 232 (1996);
Ball v.
Joy
Technologies, Inc., 958 F.2d
36 (CA4
1991); Deleski v.
Raymark Industries,
Inc., 819 F.2d
377 (CA3 1987) (Pennsylvania and New Jersey law);
Adams
v.
Johns-Manville Sales Corp., 783 F.2d
589 (CA5 1986) (Louisiana law);
Wisniewski v.
Johns-Manville Corp., 759 F.2d
271 (CA3 1985) (Pennsylvania law);
In re Hawaii
Federal
433
Asbestos Cases, 734 F. Supp. 1563 (Haw. 1990) (Hawaii
law);
Amendola v.
Kansas City So. R. Co., 699 F.
Supp. 1401 (WD Mo. 1988) (FELA); see also
Potter v.
Firestone Tire &
Rubber Co., 6 Cal. 4th 965, 863
P. 2d 795 (1993) (in banc) (no recovery for fear of cancer in a
negligence action unless plaintiff is "more likely than not" to
develop cancer).
Fourth, the general policy reasons to which
Gottshall
referred-in its explanation of why common-law courts have
restricted recovery for emotional harm to cases falling within
rather narrowly defined categories-militate against an expansive
definition of "physical impact" here. Those reasons include: (a)
special "difficult[y] for judges and juries" in separating valid,
important claims from those that are invalid or "trivial,"
Gottshall, 512 U. S., at 557; (b) a threat of "unlimited and
unpredictable liability,"
ibid.; and (c) the "potential for
a flood" of comparatively unimportant, or "trivial," claims,
ibid.
To separate meritorious and important claims from invalid or
trivial claims does not seem easier here than in other cases in
which a plaintiff might seek recovery for typical negligently
caused emotional distress. The facts before us illustrate the
problem. The District Court, when concluding that Buckley had
failed to present "sufficient evidence to allow a jury to find ...
a real emotional injury," pointed out that, apart from Buckley's
own testimony, there was virtually no evidence of distress. App.
623-625. Indeed, Buckley continued to work with insulating material
"even though ... he could have transferred" elsewhere, he
"continued to smoke cigarettes" despite doctors' warnings, and his
doctor did not refer him "either to a psychologist or to a social
worker."
Id., at 624. The Court of Appeals reversed because
it found certain objective corroborating evidence, namely,
"workers' complaints to supervisors and investigative bodies." 79
F. 3d, at 1346. Both kinds of "objective" evidence-the confirming
and disconfirming evidence-seem only indirectly related to the
question at issue, the existence
434
and seriousness of Buckley's claimed emotional distress. Yet,
given the difficulty of separating valid from invalid emotional
injury claims, the evidence before us may typify the kind of
evidence to which parties and the courts would have to look.
The Court in
Gottshall made a similar point:
"[T]esting for the 'genuineness' of an injury alone ... would be
bound to lead to haphazard results. Judges would be forced to make
highly subjective determinations concerning the authenticity of
claims for emotional injury, which are far less susceptible to
objective medical proof than are their physical counterparts. To
the extent the genuineness test could limit potentialliability, it
could do so only inconsistently." 512 U. S., at 552.
And JUSTICE GINSBURG, too, in her opinion concurring in the
judgment in part and dissenting in part, seems to recognize this
problem, for she would limit recovery in emotional injury cases to
those who can show more objective evidence than simply having
expressed fear and concern to supervisors. See
post, at
445.
More important, the physical contact at issue here-a simple
(though extensive) contact with a carcinogenic substance-does not
seem to offer much help in separating valid from invalid emotional
distress claims. That is because contacts, even extensive contacts,
with serious carcinogens are common. See,
e. g., Nicholson,
Perkel, & Selikoff, Occupational Exposure to Asbestos:
Population at Risk and Projected Mortality-1980-2030, 3 Am. J.
Indust. Med. 259 (1982) (estimating that 21 million Americans have
been exposed to work-related asbestos); U. S. Dept. of Health and
Human Services, 1 Seventh Annual Report on Carcinogens 71 (1994) (3
million workers exposed to benzene, a majority of Americans exposed
outside the workplace); Pirkle, et aI., Exposure of the U S
Population to Environmental Tobacco Smoke, 275 JAMA 1233, 1237
(1996) (reporting that 43% of
435
American children lived in a home with at least one smoker, and
37% of adult nonsmokers lived in a home with at least one smoker or
reported environmental tobacco smoke at work). They may occur
without causing serious emotional distress, but sometimes they do
cause distress, and reasonably so, for cancer is both an unusually
threatening and unusually frightening disease. See Statistical
Abstract of United States 94 (1996) (23.5% of Americans who died in
1994 died of cancer); American Cancer Society, Cancer Facts &
Figures-1997, p. 1 (half of all men and one-third of all women will
develop cancer). The relevant problem, however, remains one of
evaluating a claimed emotional reaction to an
increased risk
of dying. An external circumstance-exposure-makes some emotional
distress more likely. But how can one determine from the external
circumstance of exposure whether, or when, a claimed strong
emotional reaction to an
increased mortality risk (say, from
23% to 28%) is reasonable and genuine, rather than
overstated-particularly when the relevant statistics themselves are
controversial and uncertain (as is usually the case), and
particularly since neither those exposed nor judges or juries are
experts in statistics? The evaluation problem seems a serious
one.
The large number of those exposed and the uncertainties that may
surround recovery also suggest what
Gottshall called the
problem of "unlimited and unpredictable liability." Does such
liability mean, for example, that the costs associated with a rule
of liability would become so great that, given the nature of the
harm, it would seem unreasonable to require the public to pay the
higher prices that may result? Cf. Priest, The Current Insurance
Crisis and Modern Tort Law, 96 Yale L. J. 1521, 1585-1587 (1987).
The same characteristics further suggest what
Gottshall
called the problem of a "flood" of cases that, if not "trivial,"
are comparatively less important. In a world of limited resources,
would a rule permitting immediate large-scale recoveries for
widespread emotional distress caused by fear of future disease
436
diminish the likelihood of recovery by those who later suffer
from the disease? Cf. J. Weinstein, Individual Justice in Mass Tort
Litigation 10-11, 141 (1995); Schuck, The Worst Should Go First:
Deferral Registries in Asbestos Litigation, 15 Harv. J. L. &
Pub. Pol'y 541 (1992).
We do not raise these questions to answer them (for we do not
have the answers), but rather to show that general policy concerns
of a kind that have led common-law courts to deny recovery for
certain classes of negligently caused harms are present in this
case as well. That being so, we cannot find in
Gottshall's
underlying rationale any basis for departing from
Gottshall's language and precedent or from the current
common-law consensus. That is to say, we cannot find in
Gottshall's language, cited precedent, other common-law
precedent, or related concerns of policy a legal basis for adopting
the emotional distress recovery rule adopted by the Court of
Appeals.
Buckley raises several important arguments in reply. He points
out, for example, that common-law courts do permit recovery for
emotional distress where a plaintiff has physical symptoms; and he
argues that his evidence of exposure and enhanced mortality risk is
as strong a proof as an accompanying physical symptom that his
emotional distress is genuine.
This argument, however, while important, overlooks the fact that
the common law in this area does not examine the genuineness of
emotional harm case by case. Rather, it has developed
recovery-permitting categories the contours of which more distantly
reflect this, and other, abstract general policy concerns. The
point of such categorization is to deny courts the authority to
undertake a case-by-case examination. The common law permits
emotional distress recovery for that category of plaintiffs who
suffer from a disease (or exhibit a physical symptom), for example,
thereby finding a special effort to evaluate emotional symptoms
warranted in that category of cases-perhaps from a desire to make
a
437
physically injured victim whole or because the parties are
likely to be in court in any event. In other cases, however,
falling outside the special recovery-permitting categories, it has
reached a different conclusion. The relevant question here concerns
the validity of a rule that seeks to redefine such a category. It
would not be easy to redefine "physical impact" in terms of a rule
that turned on, say, the "massive, lengthy, [or] tangible" nature
of a contact that amounted to an exposure, whether to contaminated
water, or to germladen air, or to carcinogen-containing substances,
such as insulation dust containing asbestos. But, in any event, for
the reasons we have stated,
supra, at 430-436, we cannot
find that the common law has done so.
Buckley also points to a series of common-law cases that he
believes offer him support. Many of these cases, however, find that
the plaintiff at issue fell within a category where the law already
permitted recovery for emotional distress.
E. g., Marchica
v.
Long Island R. Co., 31 F.3d
1197 (CA2 1994) (traumatic injury);
Clark v.
Taylor, 710 F.2d
4 (CA1 1983) (intentional infliction of harm);
Laxton v.
Orkin Exterminating Co., 639 S. W. 2d 431, 433-434 (Tenn.
1982) (nuisance claim);
Lavelle v.
Owens-Corning
Fiberglas Corp., 30 Ohio Misc. 2d 11, 507 N. E. 2d 476 (Ct.
Common Pleas, Cayahoga Cty. 1987) (emotional distress damages
sought by asbestosis-afflicted plaintiff). We have found only three
asbestos-related cases, all involving state law, that support
Buckley directly.
Watkins v.
Fibreboard Corp.,
994 F.2d
253, 259 (CA5 1993) (Texas law) (recognizing cause of action
for emotional distress based on exposures to asbestos in the
absence of physical symptoms);
In re Moorenovich, 634 F.
Supp. 634 (Me. 1986) (Maine law) (same);
Gerardi v.
Nuclear Utility Services, Inc., 149 Misc. 2d 657, 566 N. Y.
S. 2d 1002 (Westchester Cty. 1991) (same). None of them was decided
by the highest court of the relevant State. And we do not find that
minority view a sufficient basis for reaching Buckley's proposed
conclusion.
438
Finally, Buckley argues that the "humanitarian" nature of the
FELA warrants a holding in his favor. We do not doubt that the
FELA's purpose militates in favor of recovery for a serious and
negligently caused emotional harm. Cf.
Gottshall, 512 U. S.,
at 550. But just as courts must interpret that law to take proper
account of the harms suffered by a sympathetic individual
plaintiff, so they must consider the general impact, on workers as
well as employers, of the generalliability rules they would thereby
create. Here the relevant question concerns not simply recovery in
an individual case, but the consequences and effects of
a rule
of law that would permit that recovery. And if the common law
concludes that a legal rule permitting recovery here, from a tort
law perspective, and despite benefits in
some individual
cases, 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.
III
Buckley also sought recovery for a different kind of "injury,"
namely, the economic cost of the extra medical checkups that he
expects to incur as a result of his exposure to asbestos-laden
insulation dust. The District Court, when it dismissed the action,
did not discuss this aspect of Buckley's case. But the Second
Circuit, when reversing the District Court, held that "a reasonable
jury could award" Buckley the "costs" of "medical monitoring" in
this case. 79 F. 3d, at 1347. We agreed to decide whether the court
correctly found that the FELA permitted a plaintiff without
symptoms or disease to recover this economic loss.
The parties do not dispute-and we assume-that an exposed
plaintiff can recover related reasonable medical monitoring costs
if and when he develops symptoms. As the Second Circuit pointed
out, a plaintiff injured through negligence can recover related
reasonable medical expenses as an element of damages.
Ibid.
(citing C. McCormick, Law of
439
Damages § 90 (1935)); see also Restatement (Second) of Torts §
924(c) (1977); J. Stein, Stein on Personal Injury Damages § 5.18
(2d ed. 1991). No one has argued that any different principle would
apply in the case of a plaintiff whose "injury" consists of a
disease, a symptom, or those sorts of emotional distress that fall
within the FELA's definition of "injury." See Part II,
supra. Much of the Second Circuit's opinion suggests it
intended only to apply this basic principle of the law of damages.
See,
e. g., 79 F. 3d, at 1342 ("[T]his case turns upon
whether ... emotional harm ... is an injury compensable under FE
LA"); id., at 1347 (monitoring costs are a "traditional element of
tort damages"). Insofar as that is so, Part II of our opinion,
holding that the emotional distress at issue here is not a
compensable "injury," requires reversal on this point as well.
Other portions of the Second Circuit's opinion, however,
indicate that it may have rested this portion of its decision upon
a broader ground, namely, that medical monitoring costs themselves
represent a separate negligently caused economic "injury," 45 U. S.
C. § 51, for which a negligently exposed FELA plaintiff (including
a plaintiff without disease or symptoms) may recover to the extent
that the medical monitoring costs that a reasonable physician would
prescribe for the plaintiff exceed the medical monitoring costs
that "would have been prescribed in the absence of [the] exposure."
79 F. 3d, at 1347 (citation omitted). This portion of the opinion,
when viewed in light of Buckley's straightforward claim for an
"amount of money" sufficient to "compensate" him for "future
medical monitoring expenses," Plaintiff's Proposed Charges to the
Jury 25, Record, Doc. 33, suggests the existence of an ordinary,
but separate, tort law cause of action permitting (as tort law
ordinarily permits) the recovery of medical cost damages in the
form of a lump sum, see Stein,
supra, at §§ 5.1 and 5.18,
and irrespective of insurance, Restatement (Second) of Torts,
supra, § 920A(2). As so characterized, the Second Circuit's
holding, in our
440
view, went beyond the bounds of currently "evolving common law."
Gottshall, supra, at 558 (SOUTER, J., concurring).
Guided by the parties' briefs, we have canvassed the state-law
cases that have considered whether the negligent causation of this
kind of harm (i.
e., causing a plaintiff, through negligent
exposure to a toxic substance, to incur medical monitoring costs)
by itself constitutes a sufficient basis for a tort recovery. We
have found no other FELA decisions. We have put to the side several
cases that involve special recovery-permitting circumstances, such
as the presence of a traumatic physical impact, or the presence of
a physical symptom, which for reasons explained in Part II are
important but beside the point here. See,
e. g., Friends for All
Children, Inc. v.
Lockheed Aircraft Corp., 746 F.2d
816, 824-825 (CADC 1984) (traumatic impact);
Hagerty v.
L &
L Marine Services, Inc., 788 F.2d
315, modified,
797 F.2d
256 (CA5 1986) (same);
Simmons v.
Pacor, Inc.,
543 Pa. 664, 674 A. 2d 232 (1996) (physical symptom). We have noted
that federal courts, interpreting state law, have come to different
conclusions about the matter. Compare,
e. g., In re Paoli R.
Yard PCB Litigation, 916 F.2d
829 (CA3 1990) (Pennsylvania law), with
Ball v.
Joy
Technologies, Inc., 958 F.2d
36 (CA4 1991) (West Virginia and Virginia law). And we have
ended up focusing on several important State Supreme Court cases
that have permitted recovery.
Ayers v.
Jackson, 106
N. J. 557, 525 A. 2d 287 (1987);
Hansen v.
Mountain Fuel
Supply Co., 858 P. 2d 970 (Utah 1993);
Potter v.
Firestone Tire &
Rubber Co., 6 Cal. 4th 965, 863
P. 2d 795 (1993); see also
Burns v.
Jacquays Mining
Corp., 156 Ariz. 375, 752
We find it sufficient to note, for present purposes, that the
cases authorizing recovery for medical monitoring in the absence of
physical injury do not endorse a full-blown, traditional tort law
cause of action for lump-sum damages-of the sort that the Court of
Appeals seems to have endorsed here. Rather, those courts, while
recognizing that medical monitoring costs can amount to a harm that
justifies a tort
441
remedy, have suggested, or imposed, special limitations on that
remedy. Compare
Ayers, supra, at 608, 525 A. 2d, at 314
(recommending in future cases creation of "a courtsupervised fund
to administer medical-surveillance payments");
Hansen,
supra, at 982 (suggesting insurance mechanism or
court-supervised fund as proper remedy);
Potter, supra, at
1010, n. 28, 863 P. 2d, at 825, n. 28 (suggesting that a lump-sum
damages award would be inappropriate);
Burns, supra, at 381,
752 P. 2d, at 34 (holding that lump-sum damages are not
appropriate), with,
e. g., Honeycutt v.
Walden, 294
Ark. 440, 743 S. W. 2d 809 (1988) (damages award for future medical
expenses made necessary by physical injury are awarded as lump-sum
payment);
Rice v.
Hill, 315 Pa. 166, 172 A. 289
(1934) (same); and Restatement (Second) of Torts § 920A(2) (1977)
(ordinarily fact that plaintiff is insured is irrelevant to amount
of tort recovery). Cf. Weinstein, Individual Justice in Mass Tort
Litigation, at 154. We believe that the note of caution, the
limitations, and the expressed uneasiness with a traditional
lump-sum damages remedy are important, for they suggest a judicial
recognition of some of the policy concerns that have been pointed
out to us hereconcerns of a sort that
Gottshall
identified.
Since, for example, the particular cancer-related costs at issue
are the
extra monitoring costs, over and above those
otherwise recommended, their identification will sometimes pose
special "difficult[ies] for judges and juries."
Gottshall,
512 U. S., at 557. Those difficulties in part can reflect
uncertainty among medical professionals about just which tests are
most usefully administered and when. Cf. Report of U. S. Preventive
Services Task Force, Guide to Clinical Preventive Services xxvii,
xxx-xxxi, xlvii-xcii (2d ed. 1996). And in part those difficulties
can reflect the fact that scientists will not always see a medical
need to provide systematic
scientific answers to the
relevant
legal question, namely, whether an exposure calls
for
extra monitoring. Cf. App. 182 (testimony by Buckley's
expert conceding that periodic colon cancer screening "is
recommended by the American
442
Cancer Society anyway"); id., at 164 (testimony by Buckley's
expert declining to rule out that periodic chest X rays would
likely benefit smokers such as Buckley, even in the absence of
asbestos exposure). Buckley's sole expert, then, was equivocal
about the need for
extra monitoring, and the defense had not
yet put on its case.
Moreover, tens of millions of individuals may have suffered
exposure to substances that might justify some form of
substance-expo sure-related medical monitoring. See
supra,
at 434-435. (The dissent limits its class of potential plaintiffs
to employees suing their employers, see
post, at 454, but
other exposed individuals who satisfy the
Paoli test, see
post, at 449-450, could sue-at common law.) And that fact,
along with uncertainty as to the amount of liability, could
threaten both a "flood" ofless important cases (potentially
absorbing resources better left available to those more seriously
harmed, see
supra, at 435-436) and the systemic harms that
can accompany "unlimited and unpredictable liability" (for example,
vast testing liability adversely affecting the allocation of scarce
medical resources). The dissent assumes that medical monitoring is
not a "costly" remedy, see
post, at 451 (internal quotation
marks omitted). But Buckley here sought damages worth $950 annually
for 36 years; by comparison, of all claims settled by the Center
for Claims Resolution, a group representing asbestos manufacturers,
from 1988 until 1993, the average settlement for plaintiffs
injured by asbestos was about $12,500, and the settlement
for nonmalignant plaintiffs among this group averaged $8,810. See
App. in
Amchem Products, Inc. v.
Windsor, O. T. 1996,
No. 96-270, p. 578.
Finally, a traditional, full-blown ordinary tort liability rule
would ignore the presence of existing alternative sources of
payment, thereby leaving a court uncertain about how much of the
potentially large recoveries would pay for otherwise unavailable
medical testing and how much would accrue to plaintiffs for whom
employers or other sources (say, insurance now or in the future)
might provide monitoring in any
443
event. Cf. 29 CFR § 1910.1001(1) (1996) (requiring employers to
provide medical monitoring for workers exposed to asbestos). The
Occupational Safety and Health Administration regulations (which
the dissent cites) help to demonstrate why the Second Circuit
erred: where state and federal regulations already provide the
relief that a plaintiff seeks, creating a full-blown tort remedy
could entail systemic costs without corresponding benefits. Nor
could an employer necessarily protect itself by offering
monitoring, see
post, at 453-454, for that is not part of
the rule of law that JUSTICE GINSBURG would endorse-a rule that, if
traditional, would, as we have noted, allow recovery irrespective
of the presence of a "collateral source" of payment. See
post, at 449.
We do not deny important competing considerations-of a kind that
may have led some courts to provide a form of liability. Buckley
argues, for example, that it is inequitable to place the economic
burden of such care on the negligently exposed plaintiff rather
than on the negligent defendant. See,
e. g., Ayers, 106 N.
J., at 603-606, 525 A. 2d, at 311-312;
Potter, 6 Cal. 4th,
at 1007-1009, 863 P. 2d, at 824. He points out that providing
preventive care to individuals who would otherwise go without can
help to mitigate potentially serious future health effects of
diseases by detecting them in early stages; again, whether or not
this is such a situation, we may assume that such situations occur.
And he adds that, despite scientific uncertainties, the difficulty
of separating justified from unjustified claims may be less serious
than where emotional distress is the harm at issue. See also
Ayers, supra; Potter, supra.
We do not deny that JUSTICE GINSBURG paints a sympathetic
picture of Buckley and his co-workers; this picture has force
because Buckley
is sympathetic and he
has suffered
wrong at the hands of a negligent employer. But we are more
troubled than is JUSTICE GINSBURG by the potential systemic effects
of creating a new, full-blown, tort law cause of action-for
example, the effects upon interests of other
444
potential plaintiffs who are not before the court and who depend
on a tort system that can distinguish between reliable and serious
claims on the one hand, and unreliable and relatively trivial
claims on the other. See
supra, at 438. The reality is that
competing interests are at stake-and those interests sometimes can
be reconciled in ways other than simply through the creation of a
full-blown, traditional, tort law cause of action. Cf.
post,
at 454.
We have not tried to balance these, or other, competing
considerations here. We point them out to help explain why we
consider the limitations and cautions to be importantand
integral-parts of the state-court decisions that permit
asymptomatic plaintiffs a separate tort claim for medical
monitoring costs. That being so, we do not find sufficient support
in the common law for the unqualified rule of lumpsum damages
recovery that is, at least arguably, before us here. And given the
mix of competing general policy considerations, plaintiff's
policy-based arguments do not convince us that the FELA contains a
tort liability rule of that
unqualified kind.
This limited conclusion disposes of the matter before us.
We need not, and do not, express any view here about the extent
to which the FELA might, or might not, accommodate medical cost
recovery rules more finely tailored than the rule we have
considered.
IV
For the reasons stated, we reverse the determination of the
Second Circuit, and we remand the case for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE GINSBURG, with whom JUSTICE STEVENS joins, concurring in
the judgment in part and dissenting in part.
The Federal Employers' Liability Act (FELA) was enacted to
facilitate recovery for railworkers who suffer injuries as a result
of their employers' negligence. "Congress intended
445
the creation of no static remedy, but one which would be
developed and enlarged to meet changing conditions and changing
concepts of industry's duty toward its workers."
Kernan v.
American Dredging Co., 355 U. S. 426, 432
(1958). Until recently, this Court accorded the FELA a notably
"liberal construction in order to accomplish [Congress'] objects."
Urie v.
Thompson, 337 U. S. 163, 180
(1949). Today's decision, however, continues the step-back approach
taken in
Consolidated Rail Corporation v.
Gottshall,
512 U. S. 532
(1994). Even if the
Gottshall decision supported the Court's
rejection of Michael Buckley's claim for emotional distress, the
Court's disposition of Buckley's medical monitoring claim marks a
new and enigmatic departure from a once "constant and established
course."
Urie, 337 U. S., at 181-182.
Buckley's extensive contact with asbestos particles in Grand
Central's tunnels, as I comprehend his situation, constituted
"physical impact" as that term was used in
Gottshall.
Nevertheless, I concur in the Court's judgment with respect to
Buckley's emotional distress claim. In my view, that claim fails
because Buckley did not present objective evidence of severe
emotional distress. See
Atchison, T. & S.
F. R.
Co. v.
Buell, 480 U. S. 557, 566-567,
n. 13 (1987) ("severe emotional injury ... has generally been
required to establish liability for purely emotional injury"); see
also id., at 569, n. 18. Buckley testified at trial that he was
angry at MetroNorth and fearful of developing an asbestos-related
disease. However, he sought no professional help to ease his
distress, and presented no medical testimony concerning his mental
health. See
79 F.3d
1337, 1341 (CA2 1996). Under these circumstances, Buckley's
emotional distress claim fails as a matter of law. Cf.
Gottshall, 512 U. S., at 563-564, 566-567 (GINSBURG, J.,
dissenting) (describing as "unquestionably genuine and severe"
emotional distress suffered by one respondent who had a nervous
breakdown, and another who was hospitalized, lost weight, and had,
inter alia, suicidal preoccupations, anxiety, insomnia, cold
sweats, and nausea).
446
Concerning medical monitoring, the Court of Appeals ruled that
Buckley stated a triable claim for monitoring expenses made
"necessary because of his exposure to asbestos," expenses essential
"to ensure early detection and cure of any asbestos-related disease
he develops." 79 F. 3d, at 1347. I would not disturb that
ruling.
I
As a pipefitter for Metro-North, Michael Buckley repaired and
maintained the labyrinth of pipes in the steam tunnels of Grand
Central Terminal in New York City. The pipes were surrounded by a
white insulation material that Buckley and his co-workers had to
remove to perform their jobs. Without any protective gear, the
pipefitters would hammer, slice, and pull the insulation material,
which broke apart as it was removed, scattering dust particles into
the air. Fans used to mitigate the intense heat of the steam
tunnels spread further dust from insulation pieces that had
accumulated on tunnel floors. The dust coated Buckley's skin and
clothing; he testified that he could taste the gritty insulation
material as it entered his mouth and nose. The pipefitters would
emerge from their work in the tunnels covered from head to toe with
white dust; for this appearance, they were dubbed "the snowmen of
Grand Central."
The insulation material covering Grand Central's pipes was made
of asbestos, widely recognized as a carcinogen since the
mid-1970's. Metro-North did not tell the pipefitters of, or provide
protection against, the danger to which the workers were exposed
until 1987, two years after Buckley started working in the steam
tunnels. At an asbestos awareness class on August 31, 1987, Buckley
and his coworkers learned of the asbestos in the pipe insulation
and of the diseases asbestos exposure could cause. Buckley was then
given a respirator and some instruction on the "glove bag" method
of removing asbestos. He testified that his efforts to use the
respirator and glove bag method proved frus-
447
trating: the respirator fit poorly and slid down his face as he
perspired in the intense heat of the steam tunnels; the plastic
bags used to isolate the asbestos melted on the hot pipes, spilling
out the material instead of containing it.
Buckley and as many as 140 other asbestos-exposed workers sought
legal counsel after their complaints to MetroNorth management went
unresolved. In the FELA action now before us, Buckley is serving as
test plaintiff for the claims of all the exposed employees.
Metro-North stipulated in the District Court that it had
"negligently exposed the plaintiff Michael Buckley to asbestos
while he was working in Grand Central Terminal from June 1985 to
the beginning of September 1987." App. 594 (Admitted and Stipulated
Facts). "[N]o later than 1986," Metro-North also conceded, "[it]
obtained actual notice of the presence of asbestos in Grand Central
Terminal and notice of the hazard that working with or around
asbestos posed to the health and welfare of its employees."
Ibid. Metro-North further acknowledged that "it exposed the
plaintiff to asbestos without warning him that he was being exposed
to asbestos and without training him how to safely handle and
remove asbestos."
Ibid. Prior to Metro-North's stipulation
conceding negligence, the New York Attorney General's Office and
the Office of the Inspector General of the Metropolitan
Transportation Authority conducted a joint investigation, leading
to these conclusions: Metro-North had "seriously disregarded the
health and safety of its workers"; and the railroad's failings were
"particularly egregious" because Metro-North was on notice of the
asbestos problem as a result of complaints by its workers, a report
by its own consultant, and inspections by the New York State
Department of Labor.
Id., at 614.
II
Buckley asserted two claims for relief in his FE LA-based
complaint: first, he charged Metro-North with negligent infliction
of emotional distress; second, he sought compensation
448
for the cost of future medical monitoring. The Court
definitively rejects Buckley's first claim by holding that, under
the FELA, a railworker may not recover damages for emotional
distress unless, and until, he manifests symptoms of a disease. See
ante, at 427, 430. As to Buckley's second claim, however,
the Court speaks tentatively. "[T]he respondent in this case," we
are told, "has not shown that he is legally entitled to recover
[medical monitoring] costs."
Ante, at 427. "[A]rguably," the
Court explains, Buckley demands an "unqualified rule of lump-sum
damages recovery,"
ante, at 444, a rule for which the Court
finds "[in]sufficient support in the common law,"
ibid. The
Court pointedly refrains, however, from "express[ing] any view ...
about the extent to which the FELA might, or might not, accommodate
medical cost recovery rules more finely tailored than" a "rule of
[the]
unqualified kind."
Ibid. (emphasis in
original).
It is not apparent why (or even whether) the Court reverses the
Second Circuit's determination on Buckley's second claim. The Court
of Appeals held that a medical monitoring claim is solidly
grounded, and this Court does not hold otherwise. Hypothesizing
that Buckley demands lump-sum damages and nothing else, the Court
ruminates on the appropriate remedy without answering the anterior
question:
Does the plaintiff have a claim for relief? Buckley has shown
that Metro-North negligently exposed him to "extremely high levels
of asbestos," 79 F. 3d, at 1341, and that this exposure warrants
"medical monitoring in order to detect and treat [asbestos-related]
diseases as they may arise."
Id., at 1346. Buckley's expert
medical witness estimated the annual costs of proper monitoring at
$950.
Ibid.1 We do not know from the Court's opinion what
more a plaintiff must show to qualify for relief.
1 Metro-North, of course, could contest that estimate as
excessive. But the amount Buckley may recover is a matter discrete
from the question whether he has stated a claim for relief.
449
A
In my view, the Second Circuit rightly held that a railworker
negligently exposed to asbestos states a claim for relief under the
FELA; recovery in such cases, again as the Court of Appeals held,
should reflect the difference in cost between the medical tests a
reasonable physician would prescribe for unexposed persons and the
monitoring regime a reasonable physician would advise for persons
exposed in the way Michael Buckley and his co-workers were. See
id., at 1347; see
infra, at 450-451 (defining an
asbestos-exposed worker's "injury"); see also
In re Paoli R.
Yard PCB Litigation, 916 F.2d
829, 849-852 (CA31990)
(Paoli I), cert. denied
sub
nom. General Elec. Co. v.
Knight, 499 U. S. 961 (1991);
In re Paoli R. Yard PCB Litigation, 35
F.3d 717, 785-788 (CA3 1994)
(Paoli II), cert. denied
sub nom. General Elec. Co. v.
Ingram, 513 U. S. 1190
(1995).
Recognizing such a claim would align the FELA with the "evolving
common law."
Gottshall, 512 U. S., at 558 (SouTER, J.,
concurring). "[A medical monitoring] action has been increasingly
recognized by state courts as necessary given the latent nature of
many diseases caused by exposure to hazardous materials and the
traditional common law tort doctrine requirement that an injury be
manifest."
Daigle v.
Shell Oil Co., 972 F.2d
1527, 1533 (CAlO 1992); see also Schwartz, Recovery of Damages
for Expense of Medical Monitoring to Detect or Prevent Future
Disease or Condition, 17 A. L. R. 5th 327 (1994). As the Court
understates, several state high courts have upheld medical
monitoring cost recovery. See
ante, at 440. In a pathmarking
opinion, the United States Court of Appeals for the Third Circuit,
interpreting Pennsylvania law, recognized a right to compensation
for monitoring "necessary in order to diagnose properly the warning
signs of disease." See
Paoli I, 916 F. 2d, at 851; see also
Paoli II, 35 F. 3d, at 785-788. Similarly, a number of
Federal District Courts interpreting state law, and several state
courts of first and second instance, have
450
sustained medical monitoring claims.2 This Court, responsible
for developing FELA law, finds little value in these decisions.
These courts have answered the question this Court passes by:
What are the elements of a compensable medical monitoring claim?
The Third Circuit, for example, has enumerated: A plaintiff can
recover the costs of medical monitoring if (1) he establishes that
he was significantly exposed to a proven hazardous substance
through the negligent actions of the defendant; (2) as a proximate
result of the exposure, the plaintiff suffers a significantly
increased risk of contracting a serious latent disease; (3) by
reason of the exposure a reasonable physician would prescribe a
monitoring regime different from the one that would have been
prescribed in the absence of the exposure; and (4) monitoring and
testing procedures exist that make the early detection and
treatment of the disease possible and beneficial. See
Paoli I,
916 F. 2d, at 852;
Paoli II, 35 F. 3d, at 788. Each
factor must be shown by competent expert testimony. See
Paoli I,
916
A claim so defined comports with the terms of the FELA.
Under the FELA, a railroad "shall be liable in damages to any
person suffering injury while he is employed by such carrier ...
for such injury ... resulting in whole or in part from the
negligence of any of the officers, agents, or employees of such
carrier." 45 U. S. C. § 51. The "injury" sustained by an
asbestos-exposed worker seeking to recover medical monitoring costs
is the invasion of that employee's interest in being free from the
economic burden of extraordi-
2 The state court cases include:
Elam v.
Alcolac,
Inc., 765 S. W. 2d 42, 208-209 (Mo. App. 1988);
Askey v.
Occidental Chemical Corp., 477 N. Y. S. 2d 242, 246-247
(App. Div. 1984). The Federal District Court cases include:
Day v.
National Lead of Ohio, 851 F. Supp. 869,
880-882 (SD Ohio 1994);
Bocook v.
Ashland Oil, Inc.,
819 F. Supp. 530, 536 (SD W. Va. 1993);
Stead v. F.
E.
Myers Co., Div. of McNeil Corp., 785 F. Supp. 56, 57 (Vt.
1990).
451
nary medical surveillance. See Restatement (Second) of Torts § 7
(1964) (defining injury as "the invasion of any legally protected
interest of another"); see
Friends for All Children, Inc. v.
Lockheed Aircraft Corp., 746 F.2d
816,826 (CADC 1984) ("It is difficult to dispute that an
individual has an interest in avoiding expensive diagnostic
examinations just as he or she has an interest in avoiding physical
injury.");
Ayers v.
Jackson, 106 N. J. 557, 591, 525
A. 2d 287, 304 (1987).
Traditional tort principles upon which the FELA rests warrant
recognition of medical monitoring claims of the kind Buckley has
asserted. As the Third Circuit explained, "[t]he policy reasons for
recognizing this tort are obvious[:]"
"Medical monitoring claims acknowledge that, in a toxic age,
significant harm can be done to an individual by a tortfeasor,
notwithstanding latent manifestation of that harm. Moreover, ...
recognizing this tort does not require courts to speculate about
the probability of future injury. It merely requires courts to
ascertain the probability that the far less costly remedy of
medical supervision is appropriate. Allowing plaintiffs to recover
the cost of this care deters irresponsible discharge of toxic
chemicals by defendants and encourages plaintiffs to detect and
treat their injuries as soon as possible. These are conventional
goals of the tort system .... " Paoli I, 916 F. 2d, at
852.
See also
Potter v.
Firestone Tire &
Rubber
Co., 6 Cal. 4th 965,1008,863 P. 2d 795, 824 (1993);
Hansen v.
Mountain Fuel Supply Co., 858 P. 2d 970,
976-978 (Utah 1993);
Ayers, 106 N. J., at 603-605, 525 A.
2d, at 311-312;
Burns v.
Jaquays Mining Corp., 156
Ariz. 375, 380-381, 752 P. 2d 28, 33-34 (App. 1987).
On all counts-exposure, increased risk of devastating disease,
and the necessity of monitoring-Michael Buckley's complaint
presents a textbook case. Through its stipula-
452
tions, Metro-North has acknowledged that it failed "to use [the]
reasonable care [the FELA requires] in furnishing its employees
with a safe place to work."
Buell, 480 U. S., at 558. At
trial, "[c]ompetent expert testimony ... established both that
Buckley suffered a substantial impact from asbestos that ...
significantly increased his risk of contracting an asbestos-related
disease and that Buckley should receive medical monitoring in order
to ensure early detection and cure of any asbestos-related disease
he develops." 79 F. 3d, at 1347. Thus, Metro-North, "through [its]
negligence, caused the plaintiff, in the opinion of medical
experts, to need specific medical services-a cost that is neither
inconsequential nor of a kind the community generally accepts as
part of the wear and tear of daily life. Under [the] principles of
tort law, the [tortfeasor] should pay."
Friends for All
Children, 746 F. 2d, at 825.
B
The Court, as I read its opinion, leaves open the question
whether Buckley may state a claim for relief under the FELA. The
Court does not question the medical need for monitoring. It
recognizes that cancer, one of the diseases Buckley faces an
increased risk of suffering, is "unusually threatening and
unusually frightening,"
ante, at 435, and that detection of
disease in early stages "can help to mitigate potentially serious
future health effects,"
ante, at 443. On the other hand, the
Court notes there may be "uncertainty among medical professionals
about just which tests are most usefully administered and when."
Ante, at 441.
It is not uncommon, of course, that doctors will agree that
medical attention is needed, yet disagree on what monitoring or
treatment course is best. But uncertainty as to which tests are
best or when they should be administered is not cause to deny a
claim for relief. Fact triers in tort cases routinely face
questions lacking indubitably clear answers:
Did defendant's product cause plaintiff's disease? What will
plaintiff's future disability and medical costs be? It bears
repetition, moreover, that recovery on a FELA medical mon-
453
itoring claim would be limited to the incremental cost of tests
a reasonable physician would recommend as a result of the
plaintiff's exposure. See 79 F. 3d, at 1347.
Occupational Safety and Health Administration (OSHA) regulations
governing permissible levels of asbestos exposure in the workplace
make it plain that medical monitoring is no "trivial" matter, see
ante, at 444; the regulations are instructive on appropriate
standards for necessary monitoring, see 29 CFR § 1910.1001 (1996);
see also 29 U. S. C. § 655(b)(7) (authorizing Secretary of Labor to
require employers to provide medical monitoring to employees
exposed to hazardous substances). OSHA's regulations direct
employers to provide medical monitoring for employees exposed to
certain levels of asbestos, and they describe in detail the
monitoring employers must make available. See 29 CFR §
1910.1001(l), App. D, App. E (1996). These regulations apply
to all industries covered by the Occupational Safety and Health Act
of 1970 (Act). Although the Act does not apply to state public
employers such as Metro-North, see 29 U. S. C. § 652(5), New York
State has adopted OSHA standards for its public employers, see N.
Y. Lab. Law §§ 27a(3)(c), (4)(a) (McKinney 1986 and Supp. 1997).
Had MetroNorth assiduously attended to those standards, Buckley
might have been spared the costs he now seeks to recover.3
Finally, the Court's anticipation of a "'flood' of less
important cases" and "'unlimited and unpredictable liability'" is
overblown. See
ante, at 442. The employee's "injury" in the
claim at stake is the economic burden additional medical
3 Buckley's counsel stated at oral argument that the railroad
failed to conduct the required monitoring of airborne asbestos in
the steam tunnels, and for that reason only, Metro-North escaped
compliance with the requirement that employers provide ongoing
medical monitoring of employees. Tr. of Oral Arg. 52. The record
supports Buckley's assertion that Metro-North did not properly
monitor the level of asbestos to which its workers were exposed.
See App. 606-607 (noting that in 1986 the New York Department of
Labor cited Metro-North for asbestos-related violations, including
failure to monitor accurately the airborne concentrations of
asbestos).
454
surveillance entails, see
supra, at 450-451; if an
employer provides all that a reasonable physician would recommend
for the exposed employee, the employee would incur no costs and
hence have no claim for compensation. Nor does the FELA claim
Buckley states pave the way for "tens of millions of individuals"
with similar claims. See
ante, at 442. It is doubtful that
many legions in the universe of individuals ever exposed to toxic
material could demonstrate that their employers negligently exposed
them to a known hazardous substance, and thereby substantially
increased the risk that they would suffer debilitating or deadly
disease.4 Withholding relief, moreover, is dangerous, for lives
will be lost when grave disease is diagnosed too late.
C
The Court emphasizes most heavily that several courts, while
authorizing recovery for medical monitoring, have imposed or
suggested special limitations on the tort remedy. See
ante,
at 440-441. In lieu oflump-sum damages, the Court indicates, a
court-supervised fund might be the better remedy. See
ante,
at 441; see also
Potter, 6 Cal. 4th, at 1006-1010, and n.
28, 863 P. 2d, at 821-825, and n. 28 (recognizing claim and
affirming award for medical monitoring; suggesting in footnote
creation of court-supervised fund);
Hansen, 858 P. 2d, at
979-982 (reversing grant of summary judgment and recognizing claim
for medical monitoring; suggesting creation of court-supervised
fund);
Ayers, 106 N. J., at 607-611, 525 A. 2d, at 313-315
(affirming damages award for medical monitoring; suggesting
creation of court-supervised fund in future cases);
Burns,
156 Ariz., at 380-381, 752 P. 2d, at 33-34 (recognizing claim for
medical monitoring; holding plaintiffs entitled to award from
court-supervised fund).
It is scarcely surprising that the Second Circuit did not
consider relief through a court-supervised fund. So far as the
record before us shows, no party argued in the District
4 If liability under the common law is to extend further, see
ante, at 442, that is a matter for the States to decide.
455
Court, the Second Circuit, or even this Court, that medical
monitoring expenses may be recoverable, but not through a lump sum,
only through a court fund. The question aired below was the prime
one the Court obscures: Does Buckley's medical monitoring claim
warrant any relief?
Buckley sought "an 'amount of money' sufficient to 'compensate'
him for 'future medical monitoring expenses.'" See
ante, at
439. He was not more precise about the form relief should take. The
Court infers from Buckley's proposed charges to the jury, however,
that he wanted what "tort law ordinarily permits"-damages in a lump
sum. See
ibid. I believe his claim qualifies for that
relief. If the Court deems what "tort law ordinarily permits"
inappropriate, however, the Court should at least say, for the
guidance of lower courts, "Yes, Buckley has
a claim for
relief." Federal Rule of Civil Procedure 54(c) directs a court to
grant the relief to which a prevailing party is entitled, even if
the party did not demand such relief in its pleadings. Rule 54 (c)
thus instructs district courts to "compensate the parties or remedy
the situation without regard to the constraints of the antiquated
and rigid forms of action." 10 C. Wright, A. Miller, & M. Kane,
Federal Practice and Procedure § 2662, pp. 133-134 (2d ed. 1983).
Under the Federal Rules, "a party should experience little
difficulty in securing a remedy other than that demanded in his
pleadings when he shows he is entitled to it."
Id., at 135;
see also
id., § 2664, at 163 (Rule 54 (c) "has been utilized
when the court awards a different type of relief from that demanded
in the complaint"); cf.
Holt Civic Club v.
Tuscaloosa, 439
U. S. 60, 65-66 (1978) ("a federal court should not dismiss a
meritorious constitutional claim because the complaint seeks one
remedy rather than another plainly appropriate one") (citing Rule
54(c)).
***
The Court today reverses the Second Circuit's determination that
Buckley has stated a claim for relief, but remands the case for
further proceedings. If I comprehend the Court's enigmatic decision
correctly, Buckley may replead a
456
claim for relief and recover for medical monitoring, but he must
receive that relief in a form other than a lump sum. Unaccountably,
the Court resists the straightforward statement that would
enlighten courts in this and similar cases:
A claim for medical monitoring is cognizable under the FELA; it
is a claim entirely in step with" 'evolving common law.'" See
ante, at 440 (citing
Gottshall, 512 U. S., at 558
(SOUTER, J., concurring)). I therefore dissent from the Court's
judgment to the extent it relates to medical monitoring.
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