Buckley v. Metro-North Commuter R.R.
| Decision Date | 01 April 1996 |
| Docket Number | No. 608,METRO-NORTH,D,608 |
| Citation | 79 F.3d 1337 |
| Parties | , 11 IER Cases 897 Michael BUCKLEY, Plaintiff-Appellant, v.COMMUTER RAILROAD, Defendant-Appellee. ocket 95-7399. |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from the judgment as a matter of law granted by the United States District Court for the Southern District of New York, Whitman Knapp, Senior Judge, in favor of Appellee on Appellant's claims for negligent infliction of emotional distress and medical monitoring arising under the Federal Employer's Liability Act, 45 U.S.C. §§ 51 et seq. (1994).
Charles C. Goetsch, New Haven, CT (Cahill, Goetsch & DiPersia, P.C., of counsel), for Plaintiff-Appellant.
William G. Ballaine, New York City (Mark S. Landman, Lisa S. Rabinowitz, Ann Marie Collins, Siff Rosen P.C., of counsel), for Defendant-Appellee.
Before FEINBERG and OAKES, Circuit Judges. *
Michael Buckley ("Buckley") appeals from the judgment as a matter of law granted by the United States District Court for the Southern District of New York, Whitman Knapp, Senior Judge, in favor of Metro-North Commuter Railroad ("Metro-North"). Buckley claims negligent infliction of emotional distress and medical monitoring costs arising under the Federal Employers' Liability Act, 45 U.S.C. §§ 51 et seq. (1994)("FELA"), for asbestos exposure Buckley suffered while working as a Metro-North pipe fitter in Grand Central Terminal. Buckley claims the district court erred in refusing to submit his negligent infliction of emotional distress claim to the jury and in failing to address his claim for medical monitoring. For the reasons stated below, we vacate and remand.
In reviewing the district court's judgment as a matter of law in favor of Metro-North, we consider the facts in the light most favorable to Buckley, the non-moving party. Purgess v. Sharrock, 33 F.3d 134, 140 (2d Cir.1994).
Buckley, who is 41 years old, has worked for various railroad companies in different capacities since the early 1970s. In June 1985, he began to work for Metro-North as a pipe fitter, repairing and maintaining the labyrinth of pipes in the steam tunnels of Grand Central Terminal in New York City. These pipes were covered with a white insulation material that Buckley and the other pipe fitters needed to remove before performing any repair or maintenance work. Buckley would hammer, cut, and pull the insulation material, using any tools on hand, in order to expose the pipe. The insulation, a dry, dusty sort of material, would break apart as it was removed, scattering particles into the air--"just like taking baby powder and shaking it," as Buckley said. Fans used to make bearable the intense heat of the steam tunnels would further spread dust from the pieces of insulation that accumulated on the floors of the tunnels. During the work day, this dust would cover Buckley's skin and clothes and enter his nose and mouth, so that he could taste the chalky insulation material. Because Buckley and the other pipe fitters would emerge from their daily duties in the tunnels covered head to toe with white powder, they were dubbed the "snowmen of Grand Central."
The insulation material that Buckley was exposed to during his work day for roughly three years was asbestos, widely recognized as a carcinogen since the mid-1970s. Metro-North admitted that it knew the insulation was composed of asbestos and that asbestos can cause cancer. In fact, Metro-North had been cited for asbestos-related violations in September 1986 following a fire in Grand Central Terminal. Metro-North further admitted that, despite its knowledge of the problem, it did not warn Buckley that the substance covering him when he emerged from the tunnels was asbestos, nor did it train him regarding safe handling of asbestos.
On August 31, 1987, nearly a year after the fire and the asbestos citations, Metro-North finally required that pipe fitters attend an asbestos awareness class. At this class, Buckley learned of the asbestos in the pipe insulation. He was told that asbestos is a substance that can cause painful, debilitating, and often deadly disease such as asbestosis, lung cancer, and mesothelioma, a cancer of the pleura that lines the outside of the lungs. He viewed videotapes depicting people suffering from these diseases. He received instruction on asbestos removal by the "glove bag" method and was given a half-face respirator. The respirator, however, was not fit-tested. He was also shown a video that explained that smoking increases one's risk of lung cancer, and that smokers exposed to asbestos can decrease their risk of lung cancer if they quit smoking.
Buckley attempted to use the half-face respirator at work, but it fit poorly and slid down his face as he perspired in the intense heat of the steam tunnels. He also attempted to use the glove bag method of removal, but the plastic bags used to isolate the asbestos during the procedure would melt on the hot pipes after the insulation was removed, spilling out the asbestos that was supposed to be safely contained in the bags. In 1991, Buckley, who had smoked heavily since he was seventeen, cut down his smoking to an average of one cigarette a day.
After learning of the asbestos in the insulation, the pipe fitters wrangled with Metro-North over the issue of safety. They also contacted the White Lung Association, an advocacy group for victims of asbestos exposure, to inform themselves about the hazards of asbestos. When their complaints to Metro-North management went unresolved, the workers contacted the Office of the New York State Attorney General, which investigated Metro-North in conjunction with the Inspector General of the Metropolitan Transit Authority. Because he "wanted Metro-North to be held accountable for what they did," Buckley contacted a law firm to pursue a case against Metro-North, as did as many as 140 other asbestos-exposed workers. Buckley's case was set up as a "test case" for the claims of all of the workers.
Buckley's attorney referred him to the Mount Sinai Occupational and Environmental Health Clinic for a medical evaluation. He was examined by Dr. Steven Markowitz and Dr. William Nicholson, who both testified as experts at trial. The doctors noted that Buckley currently showed no signs of asbestos-related diseases, but explained that the latency period for these diseases is not less than ten years and commonly ranges between 20-40 years. The doctors stated that Buckley was exposed to extremely high levels of asbestos as a pipe fitter for Metro-North, and agreed that, as a result of the asbestos exposure, Buckley suffered an increased risk of dying from an asbestos-related cancer. Dr. Markowitz characterized the increased risk as "significant," and, when pressed, quantified the increased risk as one to three percent. Dr. Nicholson quantified the increased risk as one to five percent, and stated that in his opinion there was a reasonable scientific basis to fear that Buckley will develop an asbestos-related cancer. Dr. Markowitz further noted that Buckley suffers a ten percent higher risk of developing scarring of the lining of the lungs due to on-the-job asbestos exposure.
Dr. Markowitz pointed out that Buckley's exposure could not be documented by x-ray until scarring developed, and a biopsy of the lungs could not be conducted because live tissue samples are not performed until disease has developed. In Dr. Markowitz's opinion, though, while working with the dry, chalky insulation, Buckley inhaled a great deal of thin, needle-like asbestos fibers that have lodged in Buckley's lungs and could create grave health problems later in life. He recommended that Buckley continue to be medically monitored for future signs of asbestos-related diseases, noting that early detection of some of these diseases, such as lung cancer, could improve Buckley's prognosis.
Buckley testified that he is fearful of developing an asbestos-related disease. He is angry at Metro-North and no longer trusts his employer to provide a safe workplace. He said that because of the asbestos exposure he worries about his future, becomes upset when he sees media reports about asbestos, and is overprotective of his young son. He has not, however, undergone any psychiatric treatment for his fears. As he stated,
Buckley contends the district court erred when it entered a judgment as a matter of law in favor of Metro-North at the close of Buckley's case. He asserts that his claim of negligent infliction of emotional distress and his claim for medical monitoring costs should have been submitted to the jury.
A district court may grant a judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 only if no reasonable jury could find for the non-moving party. Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir.1993). There must be "such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture." Id. (quoting Mattivi v. South African Marine Corp., "Huguenot," 618...
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