Metro North Commuter Railroad Co. v. Buckley (96-320), 521 U.S. 424 (1997)
[ Breyer ]
[ Ginsburg ]
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No. 96-320


on writ of certiorari to the united states court of appeals for the second circuit

[June 23, 1997]

Justice Ginsburg, with whom Justice Stevens joins, concurring in the judgment in part and dissenting in part.

The Federal Employees' Liability Act (FELA) was enacted to facilitate recovery for railworkers who suffer injuries as a result of their employers' negligence. "Congress intended 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 Metro North 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).

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.

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 co workers 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 frustrating: 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 Metro North 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"; 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.

Buckley asserted two claims for relief in his FELA based complaint: first, he charged Metro North with negligent infliction of emotional distress; second, he sought compensation 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 1, 5. 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 1. "[A]rguably," the Court explains, Buckley demands an "unqualified rule of lump sum damages recovery," ante, at 19, 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]." Ante, at 19-20 (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. [n.1] We do not know from the Court's opinion what more a plaintiff must show to qualify for relief.

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 79 F. 3d, at 1347; see infra, at 7-8 (defining an asbestos exposed worker's "injury"); see also In re Paoli R. Yard PCB Litigation, 916 F. 2d 829, 849-852 (CA3 1990), cert. denied sub nom. General Elec. Co. v. Knight, 499 U.S. 961 (1991) (Paoli I); In re Paoli R. Yard PCB Litigation, 35 F. 3d 717, 785-788 (CA3 1994), cert. denied sub nom. General Elec. Co. v. Ingram, 513 U.S. 1190 (1995) (Paoli II).

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 (CA10 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 15. 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 sustained medical monitoring claims. [n.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 F. 2d, at 852.

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 extraordinary 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. 1988).

On all counts--exposure, increased risk of devastating disease, and the necessity of monitoring--Michael Buckley's complaint presents a textbook case. Through its stipulations, 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.

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 9, and that detection of disease in early stages "can help to mitigate potentially serious future health effects," ante, at 18. 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 16.

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 monitoring 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 19; 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 §§27-a(3)(c), (4)(a) (McKinney 1986 and Supp. 1997). Had Metro North assiduously attended to those standards, Buckley might have been spared the costs he now seeks to recover. [n.3]

Finally, the Court's anticipation of a " `flood' of less important cases" and " `unlimited and unpredictable liability' " is overblown. See ante, at 17. The employee's "injury" in the claim at stake is the economic burden additional medical surveillance entails, see supra, at 7-8; 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 17. 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. [n.4] Withholding relief, moreover, is dangerous, for lives will be lost when grave disease is diagnosed too late.

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 15-16. In lieu of lump sum damages, the Court indicates, a court supervised fund might be the better remedy. See ibid.; 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 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 14. 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 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 15 (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.


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.

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).

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).

4 If liability under the common law is to extend further, see ante, at 17, that is a matter for the States to decide.