[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 11, 2002
No. 01-14786
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 90-00228 CV-AAA-5
BENJAMIN D. JONES,
Plaintiff-Appellant,
versus
CSX TRANSPORTATION,
Defendant-Appellee.
________________________
No. 01-14787
________________________
D. C. Docket No. 91-00226 CV-AAA-5
JAMES EMERY O’STEEN,
Plaintiff-Appellant,
versus
CSX TRANSPORTATION,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Southern District of Georgia
_________________________
(April 11, 2002)
Before TJOFLAT and COX, Circuit Judges, and HANCOCK*, District Judge.
COX, Circuit Judge:
Benjamin D. Jones and James Emery O’Steen (“the plaintiffs”) sued CSX
Transportation, Inc. under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C.
§ 51 et seq., for personal injuries allegedly sustained as a result of their exposure to
asbestos. The district court entered partial summary judgment in favor of CSX on the
plaintiffs’ claims for emotional distress damages based on their fear of contracting
cancer. The district court also denied the plaintiffs’ motion for a new trial
challenging the jury’s comparative negligence finding. Because the plaintiffs made
no showing of any objective manifestations of their emotional distress, and because
we find no abuse of discretion in the district court’s denial of their motions for a new
trial, we affirm.
*
Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama,
sitting by designation.
2
I. Background
The plaintiffs were employed by CSX in various capacities for many years,
during which they worked with and around products containing asbestos. The
plaintiffs sued CSX and several other defendants, alleging among other things
negligence on the part of CSX, and seeking damages under the FELA as a result of
that negligence for physical injuries to their respiratory systems and emotional
distress from their fear of contracting cancer.1 Over the lengthy course of the
proceedings, all of the other defendants either settled or were dismissed, leaving CSX
as the sole remaining defendant. Prior to trial, CSX filed a motion seeking partial
summary judgment on the plaintiffs’ claims for emotional distress damages. The sole
ground advanced by CSX for partial summary judgment was the plaintiffs’ failure to
show an objective manifestation of their emotional distress.2 Agreeing with CSX that
the plaintiffs were required to demonstrate some objective manifestation of their fear
1
The plaintiffs seek recovery for emotional distress as an element of damages resulting
from CSX’s negligence in exposing the plaintiffs to asbestos. The complaints contain no
independent tort claims under the FELA for negligently inflicted emotional distress, nor do they
contain any state law tort claims against CSX.
2
CSX’s motions argued that “[b]ecause . . . none of the instant Plaintiffs has shown an
‘objective manifestation’ of their alleged fear of cancer, [CSX] respectfully submits that it is
entitled to summary judgment on this issue. . . .” (Appeal No. 01-14786, R.1-44 at 1; Appeal No.
01-14787, R.2-43 at 1.)
3
of contracting cancer, and finding that they failed to do so, the district court granted
CSX’s motion.
The cases proceeded to trial on the plaintiffs’ remaining claims against CSX,
at which several medical experts testified about the plaintiffs’ respiratory problems.
Two medical experts opined that Jones suffered from asbestosis, an asbestos-related
disease, and one medical expert gave a similar opinion with regard to O’Steen. Three
other medical experts, however, opined that Jones did not suffer from an asbestos-
related disease, and four medical experts opined that O’Steen did not suffer from an
asbestos-related disease. Additionally, several of the physicians, including all of
those called by the plaintiffs, testified that both of the plaintiffs had a significant
smoking history that could have caused or contributed to their respiratory problems.
Jones smoked between half a pack and a pack and a half a day for a total of thirty-
three years, and O’Steen smoked up to a pack a day for approximately twenty-five
years.
The jury returned verdicts finding that CSX had been negligent and that such
negligence caused injury to both Jones and O’Steen. The jury additionally found,
however, that each of the plaintiffs had been negligent and that their own negligence
also caused their respective injuries. The jury attributed 5% of each of the plaintiffs’
injuries to CSX, the remaining 95% in each case being attributed to the plaintiff
4
himself. The jury found Jones’s total damages, without adjustment for comparative
negligence, to be $46,215, and it found O’Steen’s total damages, without adjustment
for comparative negligence, to be $37,595.3
The district court subsequently entered judgment on the jury’s verdicts. After
reducing by 95% the amounts found by the jury for each of the plaintiffs, the district
court awarded $2,310.75 to Jones and $1,879.75 to O’Steen. The plaintiffs moved
for a new trial, asserting among other things that the jury’s findings that Jones and
O’Steen were 95% negligent were contrary to the evidence, were against the weight
of the evidence, and resulted from mistake or prejudice. On the same day that the
plaintiffs filed these motions, CSX filed a motion to amend the judgments by
offsetting the amounts awarded to the plaintiffs by their combined settlements with
the other defendants, who allegedly were CSX’s joint tortfeasors. The district court
denied the plaintiffs’ motions for a new trial and granted CSX’s request to offset the
judgments. The court then entered an amended judgment awarding Jones $2,319.82
in costs and $0 in damages, and an amended judgment awarding O’Steen $3,727.46
in costs and $0 in damages.
3
The special interrogatories answered by the jury asked: “ . . . [W]hat sum of money do
you find from a preponderance of the evidence to be the total amount of the Plaintiff’s damages
without adjustment by application of any percentages you may have given in the answer to
Question No. 3 [concerning comparative negligence]?” (Appeal No. 01-14786, R.16-97 at 2;
Appeal No. 01-14787, R.13-103 at 2.)
5
On appeal, the plaintiffs challenge the district court’s grant of partial summary
judgment in favor of CSX on their claims for damages based on their fear of cancer,
as well as the district court’s denial of their motions for a new trial.
II. Standard of Review
We review de novo the grant of partial summary judgment, applying the same
standards as the district court. See O’Neal v. United States, 258 F.3d 1265, 1270
(11th Cir. 2001). We review the district court’s denial of a motion for a new trial for
abuse of discretion. See Lambert v. Fulton County, 253 F.3d 588, 595 (11th Cir.
2001).
III. Discussion
A. Denial of New Trial Motions
The plaintiffs contend that the court should have granted their motions for a
new trial because the jury’s finding that they each were 95% comparatively negligent
was against the great weight of the evidence, was contrary to the evidence, and was
the result of mistake, prejudice or compromise. CSX, however, argues that the
plaintiffs waived review of this issue by not filing with the district court a motion for
judgment as a matter of law on comparative negligence. Alternatively, CSX asserts
that there was ample evidence to support the jury’s comparative negligence finding.
Having considered the plaintiffs’ arguments as to this issue in light of the record, we
6
find no abuse of discretion and affirm the district court’s denial of the motions for a
new trial without further discussion. See 11th Cir. R. 36-1.
B. Partial Summary Judgment Regarding Fear of Cancer
Additionally, the plaintiffs contend that the district court erred in granting
partial summary judgment on their claims for damages based on their fear of
contracting cancer. Specifically, the plaintiffs assert that their recovery for emotional
distress is allowed by the Supreme Court’s decision in Metro-North Commuter R.R.
Co. v. Buckley, 521 U.S. 424, 117 S. Ct. 2113 (1997), which held that a worker
exposed to asbestos could not recover for negligently inflicted emotional distress
based on his fear of contracting cancer until he exhibited symptoms of a disease. The
plaintiffs argue that they have exhibited symptoms of an asbestos-related disease, i.e.
asbestosis, and therefore may recover for their fear of cancer under Buckley. The
plaintiffs also argue that, because Buckley contains no requirement that a plaintiff
show objective manifestations of his emotional distress, the district court erred in
requiring the plaintiffs to make such a showing. CSX, on the other hand, argues that
the plaintiffs cannot recover for their fear of cancer until they exhibit symptoms of
cancer itself. Additionally, CSX maintains that the district court correctly required
a showing of objective manifestations of the plaintiffs’ emotional distress.
7
We are thus presented with two questions related to the plaintiffs’ ability to
recover for their fear of contracting cancer. First, we are asked to decide whether the
Supreme Court’s decision in Buckley permits recovery for the plaintiffs’ fear of
contracting cancer when they have exhibited symptoms of an asbestos-related disease
but not of cancer specifically. Second, we are asked to decide whether the plaintiffs
must produce some objective evidence of their emotional injuries to recover for their
fear of contracting cancer. Because the sole ground of CSX’s motion was the
plaintiffs’ failure to show objective manifestations of their emotional distress, and
because the district court granted partial summary judgment on this basis alone, we
will not address the first question and limit our discussion to answering the second
question.4 After reviewing the relevant decisions of the Supreme Court, as well as
the common law and the decisions of other federal courts, we conclude that the
plaintiffs were required to make a showing of objective manifestations of their
emotional distress to recover for that distress under the FELA. Because they failed
to do so, the district court properly granted partial summary judgment to CSX.
4
The plaintiffs did not submit any medical evidence concerning symptoms of cancer or
the likelihood that they might contract that disease, and in light of the argument advanced by
CSX in support of its motion for partial summary judgment, they were not obligated to do so.
8
1. Gottshall and Buckley
In recognizing that emotional injuries are compensable under the FELA, the
Supreme Court has not decided whether objective manifestations of those injuries are
required. Nonetheless, we think that the Court’s decisions in Consolidated Rail Corp.
v. Gottshall, 512 U.S. 532, 114 S. Ct. 2396 (1994) and Metro-North Commuter R.R.
Co. v. Buckley, 521 U.S. 424, 117 S. Ct. 2113 (1997) are instructive.
In Gottshall, two railroad workers sued their employer under the FELA for
negligent infliction of emotional distress. The first plaintiff, Gottshall, based his
claim on witnessing the death of a co-worker, and being made to work within sight
of his body, while performing strenuous work in extremely hot and humid conditions.
Gottshall, 512 U.S. at 535-36, 114 S. Ct. at 2400-01. The second plaintiff, Carlisle,
based his claim on being made to work long hours under stressful conditions. Id. at
539, 114 S. Ct. at 2402. The Third Circuit allowed both claims, applying its own
“genuineness” test rather than any of the common law doctrines pertaining to
recovery for negligently inflicted emotional distress. Under the Third Circuit’s
standard, the district courts were to review the circumstances underlying such claims
to determine whether they were authentic, serious, and foreseeable. See id. at 538-40,
114 S. Ct. at 2401-02.
9
The Supreme Court reversed the Third Circuit in both instances. The Court
first faulted the Third Circuit for refusing to adopt any of the common law standards
concerning emotional distress, explaining that “the common-law background of this
right of recovery must play a vital role in giving content to the scope of an employer’s
duty under FELA to avoid inflicting emotional injury.” Id. at 551, 114 S. Ct. at 2408.
The Court also rejected the Third Circuit’s “genuineness” test on two grounds: (1) it
addressed only the potential for fraudulent and trivial claims, but failed to provide a
solution to the “more significant problem” of genuine claims leading to
“unpredictable and nearly infinite liability for defendants,” id. at 551-52, 114 S. Ct.
at 2408-09; and (2) it would force judges “to make highly subjective determinations
concerning the authenticity of claims for emotional injury”, id. at 552, 114 S. Ct. at
1409. Finally, the Court found the concept of foreseeability to place no meaningful
limitation on liability, and it found no support in the common law for imposing a duty
on employers to avoid creating a stressful work environment. Id. at 552-54, 114 S.
Ct. at 2409.
Having rejected the Third Circuit’s approach, and having already concluded
that claims for damages for negligent infliction of emotional distress are cognizable
under the FELA, see id. at 550, 114 S. Ct. at 2407, the Court had to decide the proper
standard for evaluating such claims. The Court reviewed the three primary tests at
10
common law for analyzing claims based on negligently inflicted emotional distress:
(1) the “physical impact” test, which limits recovery to those plaintiffs who sustain
a contemporaneous physical impact or injury due to the defendant’s negligent
conduct; (2) the “zone of danger” test, which limits recovery to those plaintiffs who
sustain a physical impact as a result of the defendant’s negligent conduct or who are
placed in immediate risk of physical harm by that conduct; and (3) the “relative
bystander” test, which limits recovery to those plaintiffs whose injuries could
reasonably be foreseen by the defendant, considering such factors as the plaintiff’s
proximity to the accident, the manner in which the plaintiff knows about the accident,
and the plaintiff’s relation to the victim of the accident. See id. at 546-49, 114 S. Ct.
at 2406-07. The Court then adopted the zone of danger test as the proper standard for
evaluating emotional distress claims under the FELA, finding that it best comported
with the Court’s understanding of the FELA and the concerns motivating FELA
jurisprudence.
In adopting the zone of danger test, the Gottshall Court did not expressly
require proof that the plaintiffs’ emotional distress had manifested itself in some
objective or verifiable way. Nonetheless, the Court acknowledged that many
jurisdictions following the zone of danger test, as well as many of those following the
relative bystander test, “also require that a plaintiff demonstrate a ‘physical
11
manifestation’ of an alleged emotional injury, that is, a physical injury or effect that
is the direct result of the emotional injury, in order to recover.” Id. at 549 n.11, 114
S. Ct. at 2407 n.11. It is also important to note that both of the plaintiffs in Gottshall
demonstrated objective manifestations of their distress. Gottshall, for example,
experienced nausea, insomnia, cold sweats, repetitive nightmares, weight loss, and
suicidal preoccupation. Moreover, he had been formally diagnosed as suffering from
major depression and post-traumatic stress disorder. See id. at 536-37, 114 S. Ct. at
2401. Similarly, Carlisle experienced insomnia, headaches, depression, and weight
loss, and he suffered a nervous breakdown that his medical experts attributed in part
to his job-related stress. See id. at 539, 114 S. Ct. at 2402. Thus, while the Court did
not decide the issue, it did not foreclose the possibility that objective manifestations
of emotional injury are required for recovery under the FELA.5
The same is true with regard to the Court’s opinion in Buckley, where the
plaintiff claimed recovery under the FELA for his fear of contracting asbestos-related
cancer. Applying Gottshall, the Court held that the plaintiff’s simple contact with
5
At least one commentator believes that the Court in Gottshall “did indeed intend a
physical manifestation requirement,” and for this reason believes that the rule in Gottshall should
be reconsidered. See William T. Krizner, Is There a Better Standard Than the Zone of Danger
Test for Negligent Emotional Distress Claims Under the Federal Employers’ Liability Act?, 34
Tort & Ins. L. J. 907, 917 (1999). Even while criticizing the physical manifestation requirement,
however, this commentator would require “credible evidence” of the emotional injury, such as
testimony from family members, personal physicians, and psychological experts. See id. at 918.
12
asbestos, which had not produced a disease, did not constitute a “physical impact”
within the meaning of the zone of danger test. Buckley, 521 U.S. at 432, 117 S. Ct.
at 2118. In reaching this conclusion, the Court seemed particularly concerned with
one of the policy reasons underlying the common law’s limits on recovery for
emotional harm — separating “meritorious” claims from those that are “invalid or
trivial.” Id. at 433, 117 S. Ct. at 2119. Acknowledging the difficulty in making this
distinction, the Court observed that the district court and the court of appeals had
disagreed about whether the plaintiff had presented sufficient objective evidence of
his emotional distress. The district court had concluded that the evidence was
insufficient because it amounted to little more than the plaintiff’s own testimony. See
Buckley, 521 U.S. at 433, 117 S. Ct. at 2119. The court of appeals, on the other hand,
concluded that the plaintiff’s complaints to supervisors and investigative entities
constituted objective corroborating evidence of his emotional injury. See id. Without
resolving the conflict, the Supreme Court remarked that, “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.” Id.
at 434, 117 S. Ct. at 2119.6 As in Gottshall, without the deciding the issue, the
6
In concurrence, Justice Ginsburg, joined by Justice Stevens, went one step further,
concluding that the plaintiff’s failure to present any “objective evidence of severe emotional
distress” precluded his recovery for emotional injury. Id. at 445, 117 S. Ct. at 2124-25
13
Buckley Court did not foreclose the possibility that objective manifestations of
emotional injury might be required to recover for such injury under the FELA.
2. The Common Law
Given the importance placed on the common law in both Gottshall and
Buckley, we look to the common law for guidance on the issue before us. See
Gottshall, 512 U.S. at 544, 114 S. Ct. at 2404 (“Because FELA is silent on the issue
of negligent infliction of emotional distress, common-law principles must play a
significant role in our decision.”); see also id. at 551, 114 S. Ct. at 2408 (stating that
“the ‘merit’ of a FELA claim of this type cannot be ascertained without reference to
the common law”). Unfortunately, the common law’s approach to recovery for
negligently inflicted emotional distress is anything but clear. As one court has
explained, “[a]ny attempt at a consistent exegesis of the authorities is likely to break
down in embarrassed perplexity.” Hunsley v. Giard, 553 P.2d 1096, 1098 (Wash.
1976) (citing W. E. Shipley, Annotation, Right to Recover for Emotional Disturbance
or Its Physical Consequences, in the Absence of Impact or Other Actionable Wrong,
64 A.L.R.2d 100, 103 (1959)). Because the common law’s development in this area
has been defined largely by policy concerns aimed at avoiding invalid claims and
unpredictable liability, while at the same time compensating real emotional injuries
(Ginsburg, J., concurring in part and dissenting in part).
14
caused by the wrongful conduct of another, a variety of rules have been formulated
in various jurisdictions to deal with claims based on emotional distress. This variety
renders impossible any effort to define a single common law standard for evaluating
emotional distress claims.
Nonetheless, we think that an objective manifestation requirement is well-
grounded in the common law. The American Law Institute, for example, indicates
that a negligent defendant is liable to a plaintiff who suffers physical harm resulting
from the internal operation of fright or other emotional disturbance. See Restatement
(Second) of Torts § 436 (1965); see also id. cmt. a, illus. 1 & cmt. b, illus. 2. Where
the defendant’s negligence results in emotional disturbance alone, however, “without
bodily harm or other compensable damage,” the Restatement indicates that the
defendant is not liable. See id. § 436A. These statements, along with the
accompanying commentary and illustrations, indicate that recovery for emotional
distress requires a showing that the distress has manifested itself through physical
symptoms. A leading commentator in the field similarly indicates that “the great
majority of courts” allow recovery where “the mental distress [is] certified by some
physical injury, illness or other objective physical manifestation.” W. Page Keeton,
et al., Prosser and Keeton on the Law of Torts § 54, at 364 (5th ed. 1984). See also
Douglas Bryan Marlowe, Comment, Negligent Infliction of Mental Distress: A
15
Jurisdictional Survey of Existing Limitation Devices and Proposal Based on an
Analysis of Objective Versus Subjective Indices of Distress, 33 Vill. L. Rev. 781, 796-
98 & n.91, 808 & n.146 (1988) (identifying seventeen jurisdictions following zone
of danger approach, and six jurisdictions following relative bystander approach, that
also require physical manifestations of emotional distress).
We find further support for an objective manifestation requirement in the case
law of several states. In doing so, we note that the recovery of damages for
negligently inflicted emotional distress sometimes is sought in what may be described
as an independent tort action, while at other times, such recovery is characterized
simply as an element of damages in an ordinary negligence action. Compare, e.g.,
Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557, 560 (Minn.
1996) (referring to emotional distress as “element of damages”) with Engler v.
Wehmans, 633 N.W.2d 868, 872 (Minn. Ct. App. 2001) (referring to “tort of negligent
infliction of emotional distress”). With regard to the requirement that a plaintiff
demonstrate objective manifestations of his emotional distress, however, the
distinction seems unimportant. See, e.g., Thorpe v. N.H. Dep’t of Corrections, 575
A.2d 351, 353 (N.H. 1990) (rejecting distinction between cause of action for
bystander distress and emotional distress as element of damages in negligence action,
and requiring physical manifestations in each); see also Bagwell v. Peninsula
16
Regional Med. Ctr., 665 A.2d 297, 320 (Md. Ct. App. 1995) (explaining that
emotional distress is compensable only as element of damages for negligence and
only where plaintiff can show physical manifestations that are “capable of objective
determination”); Evans v. Twin Falls County, 796 P.2d 87, 95 (Idaho 1990) (referring
to “tort” of negligent infliction of emotional distress and requiring physical
manifestation of injury caused by distress).
A large number of jurisdictions appear to require some type of physical
manifestation or physical consequence of the alleged emotional harm before recovery
is allowed. See, e.g., Keck v. Jackson, 593 P.2d 668, 669-70 (Ariz. 1979); Towns v.
Anderson, 579 P.2d 1163, 1165 (Colo. 1978); Robb v. Pa. R.R. Co., 210 A.2d 709,
714-15 (Del. 1965); Brown v. Cadillac Motor Car Div., Gen. Motors Corp., 468
So.2d 903, 904 (Fla. 1985); Black Canyon Racquetball Club, Inc. v. Idaho First Nat’l
Bank, N.A., 804 P.2d 900, 906 (Idaho 1991); Barnhill v. Davis, 300 N.W.2d 104, 107-
08 (Iowa 1981); Anderson v. Scheffler, 752 P.2d 667, 669 (Kan. 1988); Vance v.
Vance, 408 A.2d 728, 733-34 (Md. 1979); Sullivan v. Boston Gas Co., 605 N.E.2d
805, 809-10 (Mass. 1993); Daley v. LaCroix, 179 N.W.2d 390, 395 (Mich. 1970);
K.A.C. v. Benson, 527 N.W.2d 553, 557 (Minn. 1995); Sears, Roebuck & Co. v.
Young, 384 So.2d 69, 71 (Miss. 1980); Thorpe v. N.H. Dep’t of Corrections, 575
A.2d 351, 353 (N.H. 1990); Muchow v. Linblad, 435 N.W.2d 918, 921-22 (N.D.
17
1989); McMeakin v. Roofing & Sheet Metal Supply Co., 807 P.2d 288, 290 (Okla. Ct.
App. 1990); Houston v. Texaco, Inc., 538 A.2d 502, 504 (Pa. Super. Ct. 1988);
Swerdlick v. Koch, 721 A.2d 849, 864 (R.I. 1998); Hansen v. Mountain Fuel Supply
Co., 858 P.2d 970, 982-83 (Utah 1993). Additionally, some jurisdictions, while not
specifically requiring that the distress manifest itself physically, nonetheless require
some form of objective evidence for the plaintiff to recover. See, e.g., Jones v.
Howard Univ., Inc., 589 A.2d 419, 424 (D.C. 1991) (requiring that mental distress
be “serious and verifiable”); Leong v. Takasaki, 520 P.2d 758, 767 (Haw. 1974)
(stating that plaintiff must “prove medically the damages occasioned by his mental
responses to defendant’s negligent act”); Hegel v. McMahon, 960 P.2d 424, 431
(Wash. 1998) (requiring plaintiff’s emotional distress to “be susceptible to medical
diagnosis and proved through medical evidence”). Moreover, these objective
manifestation requirements have been applied in cases, like this one, where the
plaintiff seeks to recover for his fear of contracting cancer. See, e.g., Dodge v. Cotter
Corp., 203 F.3d 1190, 1201-02 (10th Cir. 2000) (applying Colorado law); Sites v.
Sundstrand Heat Transfer, Inc., 660 F. Supp. 1516, 1526-27 (W.D. Mich. 1987)
(applying Michigan law); Hansen, 858 P.2d at 973-75 & 982-83; see also Fournier
J. Gale III & James L. Goyer III, Recovery for Cancerphobia and Increased Risk of
Cancer, 15 Cumb. L. Rev. 723, 735 (1984-85) (stating that “obstacles to recovery for
18
cancerphobia . . . are primarily the same restrictions placed on recovery for [other]
emotional harm”).
We acknowledge that the objective manifestation requirement has been subject
to criticism and that it has been rejected by some courts. See, e.g., Culbert v.
Sampson’s Supermarkets, Inc., 444 A.2d 433, 437 (Me. 1982); Camp v. Minor, 915
S.W.2d 437, 446 (Tenn. 1996); Bowen v. Lumbermens Mut. Cas. Co., 517 N.W.2d
432, 443 (Wis. 1994). Nevertheless, the large number of jurisdictions that require
some type of objective or verifiable evidence of a plaintiff’s emotional injury
convinces us that the requirement continues to be an appropriate limitation on the
recovery for such injury.
Moreover, our decision is informed by the general policy concerns underlying
the common law restrictions on recovery for the negligent infliction of emotional
distress: “the potential for a flood of trivial suits, the possibility of fraudulent claims
that are difficult for judges and juries to detect, and the specter of unlimited and
unpredictable liability.” Gottshall, 512 U.S. at 557, 114 S. Ct. at 2411. Requiring
objective evidence of a plaintiff’s emotional distress helps to alleviate these concerns
and accords with the common law’s cautious approach to recovery for emotional and
mental injuries. See Keeton, supra, § 54, at 360-61 (explaining that concerns
underlying common law’s doctrinal limitations can be met by “allow[ing] recovery
19
only upon satisfactory evidence and deny[ing] it when there is nothing to corroborate
the claim”). By categorically limiting recovery to those plaintiffs able to show
objective manifestations of their emotional harm, the requirement avoids
“unpredictable and nearly infinite liability,” with which the Gottshall Court was so
concerned, see 512 U.S. at 552, 114 S. Ct. at 2408, and it helps to ensure that
recovery is allowed for genuine claims, a major concern of the Court in Buckley, see
521 U.S. at 433-36, 117 S. Ct. at 2119-20. See also id. at 436, 117 S. Ct. at 2120
(explaining that common law does not examine genuineness of claim case by case,
but rather does so categorically based on “abstract general policy concerns”). Finally,
an objective manifestation requirement avoids the problem of judges being forced to
make “highly subjective determinations” about the validity of emotional distress
claims. See Gottshall, 512 U.S. at 552, 114 S. Ct. 2409.
3. Federal Court Decisions
Our decision is also informed by decisions of other federal courts that have
been faced with this issue in the context of the FELA or analogous federal law.
Although we have found no decision from our sister circuits deciding whether the
FELA requires an objective manifestation for the recovery of negligently inflicted
emotional distress, the Fifth Circuit has imposed such a requirement on claims for
intentionally inflicted emotional distress under the Jones Act. See Martinez v. Bally’s
20
Louisiana, Inc., 244 F.3d 474, 477-78 (5th Cir. 2001).7 Similarly, the weight of
authority among the district courts in FELA, Jones Act, and general maritime cases
seems to favor a requirement that a plaintiff make some showing of objective
manifestations of his emotional disturbance. See, e.g., Williams v. Carnival Cruise
Lines, Inc., 907 F. Supp. 403, 406-07 (S.D. Fla. 1995) (applying Gottshall’s zone of
danger test under general maritime law and requiring objective physical
manifestations); Nelsen v. Research Corp. of Univ. of Haw., 805 F. Supp. 837, 849
(D. Haw. 1992) (requiring in Jones Act case that distress be “serious” and finding
requirement satisfied because plaintiff suffered sleep impairment, weight gain,
impotence, bruxism, chronic fatigue, social withdrawal, suicidal ideation, and marital
problems); Masiello v. Metro-North Commuter R.R., 748 F. Supp. 199, 205
(S.D.N.Y. 1990) (finding valid emotional distress claim under FELA where distress
resulted in ulcer); Elliott v. Norfolk & W. Ry. Co., 722 F. Supp. 1376, 1377-78 (S.D.
W. Va. 1989) (following “weight of authority” in not permitting recovery under
FELA “without a physical cause and/or physical manifestation”), aff’d on other
grounds, 910 F.2d 1224 (4th Cir. 1990); Teague v. Nat’l R.R. Passenger Corp., 708
F. Supp. 1344, 1350 (D. Mass. 1989) (adopting in FELA case requirement that
7
The Jones Act incorporates and makes applicable to seamen the substantive recovery
provisions of the FELA. See Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S. Ct. 317, 325
(1990).
21
plaintiff show “objective symptomatology of the mental distress”); Amendola v. Kan.
City S. Ry. Co., 699 F. Supp. 1401, 1410 (W.D. Mo. 1988) (requiring in FELA case
that plaintiff show “physical harm as a result of the conduct which caused the
emotional distress”); Halko v. N.J. Transit Rail Operations, Inc., 677 F. Supp. 135,
139 (S.D.N.Y. 1987) (applying physical manifestation requirement to FELA claim).
But see Hutton v. Norwegian Cruise Line Ltd., 144 F. Supp. 2d 1325, 1328 (S.D. Fla.
2001) (rejecting physical manifestation requirement under general maritime law as
“inconsistent” with Gottshall); Marriott v. Sedco Forex Int’l Res., Ltd., 827 F. Supp.
59, 75 (D. Mass. 1993) (allowing recovery under Jones Act based on plaintiff’s direct
exposure to HIV-positive vaccine even though plaintiff showed no physical
manifestations of distress); Anselmi v. Penrod Drilling Corp., 813 F. Supp. 436, 442
(E.D. La. 1993) (concluding that plaintiff can recover under Jones Act for “purely
emotional harm”).8
8
The plaintiffs cite to the Fifth Circuit’s decision in Hagerty v. L & L Marine Services,
Inc., 788 F.2d 315 (5th Cir. 1986), in which the court rejected the defendant’s argument that the
plaintiff could not recover under the Jones Act for his fear of cancer without an accompanying
“physical manifestation.” Despite its reference to “physical manifestation,” however, the court in
Hagerty actually rejected the common law physical impact or injury requirement — that is, a
physical impact or injury preceding and causing the distress — and not an objective
manifestation requirement — that is, a physical or other similar consequence following and
caused by the distress. See id. at 318-19. Moreover, the court’s discussion of this issue
constituted dicta, since the court itself acknowledged that the plaintiff had suffered both an
impact and an injury and would therefore meet those requirements. See id. at 318 n.1; see also
Gaston v. Flowers Transp., 866 F.2d 816, 819 (5th Cir. 1989) (recognizing Hagerty’s discussion
of impact and injury as dicta). The precedential value of Hagerty is further clouded by a
subsequent modification in which the panel stated that it assumed “an actionable injury” under
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4. The Plaintiffs’ Claims
For all of the foregoing reasons, we hold that a plaintiff must make some
showing of an objective manifestation of his or her emotional injury to recover for
negligently inflicted emotional distress under the FELA. Although we doubt that the
requisite showing need be great, we are not required in this case to decide the specific
nature or degree of the manifestation required because the plaintiffs made no showing
at all of any objective manifestation or consequence of their emotional injuries. In
response to CSX’s motion for partial summary judgment, the plaintiffs proffered only
their own deposition testimony, and that testimony does not reveal any objective
manifestations, of any nature or degree, resulting from their fear of contracting
cancer.9 Nor do the plaintiffs suggest otherwise, arguing only that there
the Jones Act and “intended no opinion as to the nature of the injury required to give rise to an
actionable claim.” See Hagerty v. L & L Marine Services, Inc., 797 F.2d 256 (5th Cir. 1986). As
noted by Judge Jolly in his dissent from the denial of rehearing en banc, this modification seems
to indicate that a seaman must in fact show “either physical injury or a traumatic event” before
recovering for his fear of contracting cancer. See id. (Jolly, J., dissenting). Finally, we note that
Hagerty was not mentioned by the Fifth Circuit in Martinez, where as explained above, the court
required a physical manifestation to recover for intentionally inflicted emotional distress under
the Jones Act. See Martinez, 244 F.3d at 477-78. For these reasons, we do not think that
Hagerty informs our decision on the issue of whether objective manifestations are required to
recover for emotional harm under the FELA.
9
The portion of Jones’s desposition proffered at summary judgment reads in its entirety
as follows:
Q Okay. Since that time, have you had any fears or concerns of any of your
symptoms possibly getting worse or any possibility that you might contract any
other asbestos-related illness other than what you have been diagnosed with?
A Yes. There is always a concern that you are not improving. I mean, you’re
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digressing. I haven’t — I haven’t contacted anybody in particular. I’m waiting to
go back for my annual tests.
Q Okay. Since May the 6th of 1991, have you ever thought about — specifically
about the possibility that as a result of past exposure to asbestos you might
contract any other potentially asbestos-related disease or condition, other than
what you have been diagnosed with already in the future and thinking about that,
has that ever made you feel physically ill to the point where you have actually
thrown up?
A No, not to that point. You’re concerned about your health, of course, but I — I
haven’t been that emotional about it.
Q Thinking about that possibility, has that ever caused you since your deposition
was taken last time, May of ‘91, caused you to miss an entire night of sleep, go
more than 24 hours without any sleep?
A I don’t sleep well, but it — it hasn’t caused me . . . .
(Appeal No. 01-14786, R.3-49 at Ex. B, p. 29.)
The portion of O’Steen’s deposition proffered at summary judgment reads in relevant part
as follows:
....
Q Did she tell you whether you had anything wrong with your lungs or not?
A She said I had asbestos.
Q That’s what she said?
A Uh-huh.
Q Did she say anything to you about what might happen in the future because you
had asbestosis?
A No. You mean turning into cancer somewhere?
Q Yeah.
A No.
Q Have you heard anything about asbestos and cancer?
A It could be cancerous, yes, but mine is not the last time he went in my lungs. It
could turn into it. It’s not ruled out but it’s not right now.
Q Does it concern you?
A About it turning into cancer?
Q Yeah.
A Sure, yeah, it concerns me. Getting shorter and shorter of breath is concerning
me.
Q Does that being concerned about it turning into cancer, has that caused you to lose
any sleep?
A No. I lose sleep, enough sleep by being congested, yeah.
Q But not the cancer issue?
A As far as mentally, no. It don’t work on me.
....
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is no objective manifestation requirement under the FELA. For the reasons stated,
we disagree with the plaintiffs’ position and conclude that the district court correctly
granted partial summary judgment to CSX on the plaintiffs’ fear of cancer claims.
IV. Conclusion
Because the plaintiffs failed to produce any evidence of an objective
manifestation of their emotional distress from the fear of contracting cancer, we
affirm the district court’s grant of partial summary judgment to CSX. Because we
find no abuse of discretion in the district court’s denial of the plaintiffs’ motions for
new trial, we affirm the denial of those motions.
AFFIRMED.
(Appeal No. 01-14787, R.2-51 at Ex. E, pp. 79-80.)
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