Mayer Brown's



2001 Term, Number 12 / April 1, 2002

Today the Supreme Court granted certiorari in one case of potential interest to the business community. Amicus briefs in support of the petitioners are due on Wednesday, May 15, 2002, and amicus briefs in support of the respondent are due on Friday, June 14, 2002. Any questions about these cases should be directed to Eileen Penner (202-263-3242) or Miriam Nemetz (202-263-3253) in our Washington office.

Federal Employers' Liability Act — Railroads — Emotional Distress Damages — Apportionment of Damages. The Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60, provides a federal cause of action to railroad employees who are injured on the job as a result of their employer's negligence. Although FELA abrogates certain common-law barriers to recovery, it does not make railroads "insurers of the safety of [their] employees." Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994). Instead, absent express statutory guidance, FELA incorporates common law negligence principles. See id. at 543-544. The Supreme Court has granted certiorari in Norfolk & Western Railway Co. v. Ayers, No. 01-963, to determine: (1) whether FELA plaintiffs may recover damages for emotional distress without any physical manifestation of emotional injury or other corroboration; and (2) whether FELA requires the apportionment of damages between railroad and non-railroad tortfeasors.

Plaintiffs are six retired employees of the former Norfolk & Western Railway Company ("N&W") who allege that they were injured by exposure to asbestos on the job. Plaintiffs sued N&W under FELA in the West Virginia Circuit Court, contending that N&W failed to provide them with a reasonably safe workplace and that, as a result, they had contracted asbestosis and suffered emotional distress arising from their fear of developing cancer. N&W sought exclusion of all evidence relating to plaintiffs' alleged fear of developing cancer on the ground that they had produced no evidence of any physical manifestation of this alleged emotional injury. Rejecting that request, the court instead instructed the jury that any plaintiff who had a reasonable fear of cancer that was related to a physical injury from asbestos was entitled to damages. Although there was evidence that some plaintiffs had been exposed to asbestos at other, non-railroad jobs, the court also instructed the jury to hold N&W liable for all of plaintiffs' damages if its negligence contributed in any measure to their injuries. 

The jury awarded $5.8 million to the plaintiffs. The trial court upheld the award without issuing an opinion. Having no right to appellate review, N&W petitioned for review in the West Virginia Supreme Court of Appeals. That Court denied review without comment. 

The West Virginia trial court's decision is in tension with decisions of the First and Fifth Circuits and the highest courts of Alabama and Ohio, each of which requires a manifestation of emotional injury as a prerequisite to recovery for emotional distress. See Moody v. Maine Cent. R.R., 823 F.2d 693, 696 (1st Cir. 1987); Martinez v. Bally's Louisiana, Inc., 244 F.3d 474 [link 2], 477-478 (5th Cir. 2001); Alabama Great S. R.R. v. Jackson, 587 So. 2d 959, 965 (Ala. 1991); Vance v. Consolidated Rail Corp., 652 N.E.2d 776, 784 (Ohio 1995). The court's decision also conflicts with Dale v. Baltimore & Ohio Railroad, 552 A.2d 1037 (Pa. 1989), in which the Pennsylvania Supreme Court held that a "FELA employer whose employee has been injured partially by the employer's negligence and partially by other causes * * * must pay damages only for those injuries attributable to its negligence." Id. at 1041.

Because the Court's decision will address two issues that arise regularly in FELA litigation, this case is important to all railroads. Because the Jones Act incorporates FELA doctrine, the case is also significant to maritime shipping industries.

This Mayer, Brown, Rowe & Maw Supreme Court Docket Report provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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