Amendola v. Kansas City Southern Ry. Co.

Decision Date14 November 1988
Docket NumberNo. 88-0395-CV-W-3.,88-0395-CV-W-3.
Citation699 F. Supp. 1401
PartiesAnthony J. AMENDOLA, et al., Plaintiffs, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant.
CourtU.S. District Court — Western District of Missouri

Michael P. McReynolds, Rerat Law Firm, Minneapolis, Minn., Mark W. Cowing, Barker, Rubin & Sonnich, Kansas City, Mo., for plaintiffs.

Harlan D. Burkhead, Michael W. Rhodes, Thomas A. Ryan, Lathrop Koontz Righter, Clagett & Norquist, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

ELMO B. HUNTER, Senior District Judge.

Before the Court is defendant's motion to dismiss plaintiffs' complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Fed.R. Civ.P., or, in the alternative, for a more definite statement. Plaintiffs have filed briefs in opposition to defendant's motion to dismiss. For the reasons stated below, defendant's motion to dismiss is GRANTED, and plaintiffs' complaint is dismissed for failure to state a claim upon which relief can be granted.

This action arises under the Federal Employers' Liability Act (F.E.L.A.), 45 U.S.C. § 51, et seq. The nineteen plaintiffs are, or have been, employed by defendant railroad and allege that defendant caused plaintiffs to come into contact with asbestos and asbestos-containing materials during their employment. Plaintiffs are seeking to recover under the F.E.L.A. for (1) an increased susceptibility to asbestos-related diseases resulting from their exposure to asbestos1 and (2) mental anguish resulting from fear of contracting asbestos-related diseases in the future. Defendant maintains that plaintiffs fail to state a cause of action because (1) an F.E.L.A. action for asbestos-related injury does not exist unless plaintiffs allege a manifestation of injury and (2) no recovery can be had under the F.E.L.A. for mental anguish absent physical injury.

In testing the sufficiency of plaintiffs' complaint, this Court must accept all material allegations as true and construe them liberally in favor of plaintiffs. Loge v. United States, 662 F.2d 1268, 1270 (8th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2009, 72 L.Ed.2d 466 (1982). Only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" should the complaint be dismissed. Loge, 662 F.2d at 1270 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). The scope of inquiry on a Rule 12(b)(6) motion is limited to the pleadings. Central Telecommunications, Inc. v. City of Jefferson City, 589 F.Supp. 85 (W.D.Mo.1984).

I. Increased Susceptibility to Asbestos-Related Diseases

Plaintiffs contend that "numerous courts ... have held that increased susceptibility to disease following exposure to toxic agents such as asbestos is a presently existing condition for which damages may be awarded". However, plaintiffs cite only the case of Sterling v. Velsicol Chemical Corp., 647 F.Supp. 303 (W.D. Tenn.1986) in support of this proposition. In Sterling, the district court found that persons residing near a chemical waste burial site could recover for the enhanced risk of liver and kidney disease and cancer. In reaching this finding, the Sterling court relied upon cases in which plaintiffs, who alleged permanent physical injury, were allowed to recover for the reasonably probable future effects of those injuries.2 Furthermore, the Sterling plaintiffs alleged severe and permanent physical injuries resulting from their exposure to toxic waste. Thus, Sterling is distinguishable from the present case in which plaintiffs do not allege that they have sustained or manifested a physical injury as a result of their exposure to asbestos.3

Sterling does not aid the Court in determining the precise issue presented in this case, i.e., whether plaintiffs' alleged increased risk of contracting asbestos-related diseases in the future, absent a manifestation of physical injury, constitutes a sufficient present injury compensable under the F.E.L.A. In resolving this question, the Court should not rely solely on the law of any one state. Rather, the United States Supreme Court has instructed that federal decisional law, gleaned from common law developments, be applied to resolve the issue presented. Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1026, 93 L.Ed. 1282 (1948); Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 1417, 94 L.Ed.2d 563 (1987).

In an effort to determine the applicable federal decisional law, this Court has conducted an extensive review of cases involving plaintiff(s) seeking to recover for increased susceptibility to disease or cancer due to exposure to toxic substances. In most of the cases involving a claim of increased risk, though, the plaintiff(s) alleged sustained permanent physical injury caused by the exposure to a toxic substance.4 In its review, the Court has found no cases addressing the precise issue of whether an increased susceptibility to asbestos-related diseases is compensable under the F.E. L.A., absent allegations of any manifestation of physical injury. However, a few courts have dealt squarely with the question of whether increased susceptibility to future disease is by itself a compensable present injury in other contexts and thus provide guidance for this Court in its search for the applicable federal decisional law. These courts have consistently rejected "increased risk claims" that are not accompanied by allegations of physical injury.

In Laswell v. Brown, 524 F.Supp. 847 (W.D.Mo.1981), aff'd., 683 F.2d 261 (8th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983), a widow and her children sought damages for the disability and death of their husband and father who was exposed to low-level radiation while on active military duty. The children also brought suit alleging that they had been personally damaged by their father's exposure to nuclear radiation, because it exposed them to an abnormally high risk of disease and genetically passed cellular damage. Laswell, 524 F.Supp. at 850. The district court noted that the decedent's children could bring suit against the United States under the Federal Tort Claims Act ("FTCA") for any injuries they had sustained. The court stated, however, that "the complaint is conspicuously void of any allegations that the children have sustained any damage other than the exposure to a higher risk of disease and cellular damage. A lawsuit for personal injuries cannot be based upon the possibility of some future harm." Laswell, 524 F.Supp. at 850. The court then found that the children had failed to state a claim upon which relief could be granted and dismissed that portion of the complaint. Laswell, 524 F.Supp. at 850.

The Eighth Circuit affirmed the district court. Laswell v. Brown, 683 F.2d 261 (8th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983). In Laswell, the Eighth Circuit rejected a claim for increased risk of disease under the FTCA absent allegations of present physical injury. The Laswell opinion indicates that the Eighth Circuit would also dismiss plaintiffs' increased susceptibility claim in the present action because plaintiffs have failed to allege a present manifestation of physical harm.

In Morrissy v. Eli Lilly & Co., 76 Ill. App.3d 753, 32 Ill.Dec. 30, 394 N.E.2d 1369 (1979), the plaintiff sought to bring a class action to recover for the heightened risk of contracting cancer or other diseases allegedly suffered by daughters of mothers who ingested diethylstilbestrol ("DES") during pregnancy. The plaintiff did not allege that any potential class members had actually sustained physical injury. The court found that the possibility of developing cancer or other injurious conditions in the future was an insufficient basis upon which to recognize a present injury. Morrissy, 32 Ill.Dec. at 37, 394 N.E.2d at 1376.

In reaching this finding, the court relied upon Rheingold v. E.R. Squibb & Sons, Inc., No. 74-3420 (S.D.N.Y.1975). in Rheingold, the plaintiff sought to establish a class consisting of daughters exposed to risk of cancer and other conditions due to the use of DES during pregnancy by their mothers. The Rheingold court noted that the plaintiff did not allege present injury, only a present risk of injury. The court then stated:

"Plaintiff, however, has no legal remedy in the absence of injury, nor do those whom she presumes to represent. The New York courts have uniformly held that injury and damage are essential to recovery in tort. Citations. The fact that plaintiff's daughter may suffer injury in the future does not satisfy the present requirement of injury or damage, nor does the fact that those persons whom she seeks to represent may suffer injury in the future create a present cause of action in them (emphasis in original)."

Morrissy, 32 Ill.Dec. at 36, 394 N.E.2d at 1375 (quoting Rheingold, Memorandum Opinion at 10).

The complaint in Mink v. University of Chicago, 460 F.Supp. 713, 719 (N.D.Ill. 1978) contained language very similar to the language contained in the present complaint. The plaintiffs alleged that DES "has or may cause reproductive tract and other abnormalities in themselves." The court pointed out that the complaint gave no indication that any of the named plaintiffs had actually suffered any abnormality. Instead, the "closest the complaint comes to alleging physical injury is the allegation of a `risk' of cancer." Mink, 460 F.Supp. at 719. The court found that the mere fact of risk without any accompanying physical injury was insufficient to state a claim for strict products liability. The court stated, "Without more concrete allegations of injury to the named plaintiffs, the second count must be dismissed for failure to state a claim." Mink, 460 F.Supp. at 719.

In Deleski v. Raymark Industries, Inc., 819 F.2d 377 (3rd Cir.1987), a decedent's widow brought suit against various...

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