Transcript

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument next in No. 96-320, Metro-North Commuter Railroad Company v. Michael Buckley.

Ms. Birnbaum.

MS. SHEILA L. BIRNBAUM: Mr. Chief Justice, may it please the Court:

The Court this morning is confronted with a ruling from the Second Circuit that is both unprecedented, stands alone and is contrary to the common law and field of precedent both before this Court and in most of the common law courts of this country.

If the Second Circuit's decision is not reversed, it will greatly exacerbate the asbestos litigation crisis we have in the courts and will lead to the unpredictable and expansive, unlimited liability that this Court was concerned about in the Gottshall case.

Tort law is clear: you have to sustain an injury before you can recover from a negligent defendant.

JUSTICE RUTH BADER GINSBURG: Ms. Birnbaum, may I ask you if you would clarify your position in this case with the one that the -- that is being taken by the defendants in the case this afternoon?

That is, they say that there is an injury, that there is a class of people who have been really exposed to asbestos.

And they have an injury, in fact -- a concrete, particularized injury, in fact -- here and now, just by virtue of having been inundated with asbestos.

And you're saying, as I take it you've just said, they don't have any claim until they suffer an illness.

MS. BIRNBAUM: What --

JUSTICE GINSBURG: We can't both be right.

MS. BIRNBAUM: Well, I'm not going to argue the Georgene case on the standing issue. There may be different considerations with regard to standing.

You're also looking at this issue through the context of FELA, a statute that provides that there must be an injury, and has a jurisprudence that goes with it. But it's still much broader.

We would say that a person who is merely exposed and has no injury -- in this case, the record is clear, he has no clinical evidence even of pleural plaques, pleural injuries, he has no recognition, no determination by his own physicians even of subcellular changes --

JUSTICE SANDRA DAY O?CONNOR: The courts below relied on the physical impact of the fibers going inside his lungs.

MS. BIRNBAUM: But, first, there is no real evidence of that except a hypothetical given by the expert below.

But besides that, the real issue here is subcellular injury, even if it existed, has been held over and over again by most common law courts in this context not to be an injury.

JUSTICE O?CONNOR: Well, how do we deal with a physical impact, does that constitute an injury, even if it's slight?

MS. BIRNBAUM: No. I think that -- and I think if you look at the courts -- the common law courts -- even a court like Florida, which clearly adopts an impact test by itself, not a zone of danger test, which I think we need to talk about -- that this Court has adopted a zone of danger test, not an impact test -- if you look at those courts that have adopted an impact test, in the area of asbestos exposure, toxic exposure, what the courts have done is added more, because they are concerned about this unlimited, unpredictable liability.

In Florida, where they have just the impact test, the court, in the Cox case, said you have to also have a physical injury.

JUSTICE GINSBURG: But aren't there many jurisdictions that have recognized a claim for medical monitoring, a common law claim for medical monitoring, for people who have been massively exposed but have not yet manifested any illness?

There are --

MS. BIRNBAUM: There are -- there are a few. And it's --

JUSTICE GINSBURG: How many, roughly, would you say? Over a dozen I think.

MS. BIRNBAUM: A little less, but there are some. And if you look at most of those cases, they are either in the area where there are a very small number of people -- the water cases, where there are just a small number of people who have been exposed to contaminated water, and not the kind of situation here, where 21 million people have been substantially exposed to asbestos.

Twenty-one million people could come into the court today --

JUSTICE JOHN PAUL STEVENS: Yes, but may I interrupt with just a question?

Let's talk about one of those 21 million people --

MS. BIRNBAUM: Okay.

JUSTICE STEVENS: -- who has been substantially exposed. And say that person's doctor says the exposure is sufficiently serious that I think you ought to check with me every six months to see if anything has developed, because if it does develop and we catch it early, we'll be better able to treat you.

Would that be an injury?

MS. BIRNBAUM: No. Not under FELA.

JUSTICE STEVENS: Even though that -- he'd have to pay his doctor's bill every six months?

MS. BIRNBAUM: That would be a damage, but it wouldn't be an injury.

JUSTICE STEVENS: But not within the meaning of the statute?

MS. BIRNBAUM: Right.

JUSTICE STEVENS: But as a matter of ordinary reasoning, would not that be a pecuniary injury that one could at least say gave -- gave rise to some kind of claim?

MS. BIRNBAUM: I think it's just much more complicated than that --

JUSTICE STEVENS: Well, it's more complicated because there are 21 million people out there. I agree with that.

MS. BIRNBAUM: Twenty-one million --

JUSTICE STEVENS: But if you look at just the one is what I'm trying to think of.

MS. BIRNBAUM: But the problem is, if you had 21 million just asbestos-exposed people --

JUSTICE STEVENS: Right.

MS. BIRNBAUM: -- this would apply to all toxic substances. We can't count the numbers of other toxic substances --

JUSTICE STEVENS: No, but I'm just -- I'm just challenging the integrity of the argument that there's no injury there, when a person, because of the physical exposure to that, is required to pay a doctor every six months for the next ten years.

MS. BIRNBAUM: I would say that under tort law and under the law of FELA, you have to have an injury.

It has to either be a physical injury or an emotional distress injury within the boundaries that this Court has said.

JUSTICE STEVENS: And dollar injury is not enough?

MS. BIRNBAUM: Damage. It's damage. It's not injury. If we sustain --

JUSTICE DAVID H. SOUTER: But under general -- under general tort law, you wouldn't make that argument, would you?

MS. BIRNBAUM: Yes, I would, Your Honor.

JUSTICE SOUTER: You -- you would not -- I mean, but your argument seems to be saying that you -- that there is no injury cognizable in tort which does not involve personal as opposed to economic injury. And that -- you're not arguing that?

MS. BIRNBAUM: No. No. There --

JUSTICE SOUTER: But why isn't there, then, an economic injury, just as Justice Stevens says?

If the -- if the doctor says the exposure is such that you would be crazy not to have an examination every six months, why -- and presumably you?re not crazy, so that you're going to act reasonably and you're going to have the exam -- why doesn't the reasonable necessity of expending the money for the examinations every six months constitute an economic injury to you?

MS. BIRNBAUM: It -- it maybe a damage to you, but before you can get to a damage for medical monitoring -- for future medical monitoring, the courts -- the common law courts have been very clear -- you first have to have an injury.

JUSTICE GINSBURG: Except for the twelve that you said go the other way?

MS. BIRNBAUM: Yes. And that is -- that is so. There is --

JUSTICE SOUTER: But why should we not accept economic injury?

MS. BIRNBAUM: Because if you do that, you will be opening up the courts of this country to the -- to -- to --

JUSTICE SOUTER: Okay. But that's a different -- you're -- it seems to me you're now saying -- and I'm not saying it's an illegitimate argument -- but you're making a different kind of argument.

You're saying not that it would be, in the abstract, foolish to regard this as an economic injury or economic damage, but if you do, it?s simply going to cost the system more than the system can bear.

And, therefore, not for an analytical reason, but for reasons of the cost of consequences, we shouldn't recognize it. That's the argument you're making now.

MS. BIRNBAUM: Well, I -- that is the second argument. I would go back to the first argument, and except for the small number of cases in the water situation, not an asbestos exposure, where there has been no physical injury, the courts have not jumped in to provide a medical monitoring kind of --

JUSTICE GINSBURG: Ms. Birnbaum, if we -- if we just took the one-on-one case that Justice Stevens gave ?- there, I really don't follow your argument. Because something happened to this person.

No illness is manifested yet. But something happened to create a greater vulnerability than the population at large.

And if we just were looking at these two people and say, who should bear the cost of that something that the medical profession says should be done, we would certainly put it on, would we not, the person who caused the exposure rather than the person who suffered the condition that requires the monitoring?

MS. BIRNBAUM: I -- I think that the tort law does not -- does not respond that way, except for these special circumstances, these minority group of cases --

JUSTICE GINSBURG: Then are you saying that we have a kind of assumption of the risk involved, that the worker who didn't know that he was being exposed and is going to incur this cost if he follows his doctor's advice, has to bear that cost?

MS. BIRNBAUM: No, we're not saying that. I think it's not an assumption of the risk.

If there is an injury, then he can recover all of the damages that arise from that injury, including foreseeable medical expenses in the future.

But if we just have this type of damage -- and if you -- if you call it something else, then you may come up with a different solution -- but it is a damage.

It has to go on to something. That something would be a physical injury.

CHIEF JUSTICE REHNQUIST: Well, Ms. Birnbaum, in the case just preceding, we were discussing the product liability law.

Certainly that has evolved often in conscious consideration of which party can best protect against an injury.

I take it want you're arguing is that transactional costs are a permissible consideration in deciding what recovery you can have under FELA?

MS. BIRNBAUM: Yes, I think -- I think it is, Your Honor. And I think that even more so under FELA.

The statute is explicit -- you have to have an injury. We're putting the cart before the horse. It talks about a physical injury. JUSTICE O?CONNOR: But it doesn't say "physical."

If you're relying on section 1 of FELA, 45 U.S. Code, Section 51 --

MS. BIRNBAUM: Yes, Your Honor.

JUSTICE O?CONNOR: -- it says a common carrier by railroad, while engaging in commerce shall be liable in damages to any person suffering injury while he is employed by such carrier.

Now, does that include economic injury or only physical injury? And -- and what do we look to in precedent to resolve that?

MS. BIRNBAUM: I -- I think what you look to is the common law. What you look to is your prior field of precedent.

What you look to is language and the intent of Congress --

JUSTICE O?CONNOR: Well, certainly if you look to the common law, an economic injury can be and has often been recognized as the basis for liability in tort.

MS. BIRNBAUM: But this is not -- JUSTICE O?CONNOR: So you say this requires physical injury, and how do we know that?

MS. BIRNBAUM: Well, I think that the kind of economic damages we're talking about is not this type of economic damage. JUSTICE O?CONNOR: Economic injury. Don't put it in terms of damages, because the statute says "injury."

MS. BIRNBAUM: I -- I -- the statute does say "injury." And this Court has interpreted that to mean, in some instances, physical injury, emotional distress injury under certain limitations that this Court said was important.

And there is no case under FELA that has ever held that the type of damage we're talking about here is an injury that was covered by Congress, certainly in 1908, and certainly today. JUSTICE O?CONNOR: Well, but we have recognized that emotional injury will suffice for recovery if the person meets the zone of danger test.

MS. BIRNBAUM: Yes. That is exactly right. JUSTICE O?CONNOR: And this is a case based on emotional injury.

MS. BIRNBAUM: Well, it's based on emotional injury, but he is not trying to recover medical monitoring for his emotional injury.

He's trying to recover medical monitoring based on his potential physical injury in the future. JUSTICE O?CONNOR: Well, is his theory that if he has regular monitoring, it will alleviate -- medical monitoring -- it will alleviate his emotional concern?

MS. BIRNBAUM: That was never argued below. And a jury would be giving him his emotional distress injury not for any period of time until he had the first checkup.

What he's asking is for this injury over the entire period of time, over his life span, and medical monitoring damages over his life span.

JUSTICE ANTONIN SCALIA: Ms. Birnbaum, you -- you said in passing that this type of thing certainly wouldn't have been covered in 1908, when FELA was enacted.

Is it your contention that we should not extend the statute beyond what it meant in 1908?

MS. BIRNBAUM: No, Your Honor. It is clear that it would not have -- have been a -- there had been no toxic tort kind of litigation as we know it today.

JUSTICE SCALIA: Clear, but irrelevant.

MS. BIRNBAUM: It's not totally irrelevant, but it doesn't matter --

JUSTICE SCALIA: Well, why is it not --

MS. BIRNBAUM: -- because today, also, there would be no recovery under these circumstances in almost every jurisdiction in the United States and -- under the FELA jurisprudence that we have.

JUSTICE STEPHEN G. BREYER: What about Potter? I mean aren't there two or three cases --

MS. BIRNBAUM: Yes, Your Honor.

JUSTICE BREYER: -- Potter, Paoli, Ayers -- that were --

MS. BIRNBAUM: Potter is interesting --

JUSTICE BREYER: Potter sounds like an effort to try to limit the recovery --

MS. BIRNBAUM: But -- but --

JUSTCIE BREYER: -- but allow it in a case where the exposure is severe, the added risk is severe, and there is good medical evidence that medical tests are useful.

MS. BIRNBAUM: But Potter goes even further, because it provides that the risk in the future has to be more probable than not. That's not what we have here.

We have a risk that the plaintiff's expert says is one percent greater than the background risk.

JUSTICE BREYER: But are you -- are you -- but that's still an effort to create a set of cases where the risk is serious enough, such that, given the seriousness of the risk, the level of the exposure and the medical need for examinations, you have a cause of action and can recover.

MS. BIRNBAUM: In a -- in the limited situation in Potter of -- of four litigants who were exposed to contaminated water, Potter did that.

And we would say that the California court, in Potter, is on the leading edge and is not what most courts in the United States have held.

JUSTICE BREYER: Well, would you say never, or what test?

MS. BIRNBAUM: Never -- never a medical monitoring recovery under FELA. I would say never a medical monitoring under FELA unless there has been a physical injury.

JUSTICE GINSBURG: Ms. Birnbaum, you're talking about FELA as though it were some kind of very restrictive statute.

But at least as I remember in ancient days, when I went to law school, it was the most forward-looking and the most -- they stretched the boundaries of everything.

Causation was stretched to the breaking point --

MS. BIRNBAUM: That?s right.

JUSTICE GINSBURG: -- under FELA. And has now it become some kind of a constricted statute?

MS. BIRNBAUM: No. I think it is a broad remedial statute. And it has broadly looked at defenses and causation.

But I think this Court, in Gottshall, made it clear that there have to be bright lines, especially in the area of negligent infliction of emotional distress, to prevent the kind of unpredictable and unlimited liability that will occur if the Second Circuit's decision is affirmed.

Look what we have here. We have a person who has no injury, who has no serious emotional distress.

He is worried and angry. Well, he may have a good right to be worried and angry.

But he -- JUSTICE O?CONNOR: Indeed, he does. Because asbestos is a known carcinogen and the causer of serious respiratory harm.

And if one worked for an employer who knowingly subjected the employee for three years to massive doses of asbestos, without ever a warning that that's what was being dealt with, one would have some concern.

MS. BIRNBAUM: Well, I agree, Your Honor. JUSTICE O?CONNOR: Even a normal-reacting employee would be furious.

MS. BIRNBAUM: Your Honor, there are several things in your statement that really I question -- and we'll get back to the massive amounts in a moment -- of asbestos -- but Dr. Selikoff, who is one of the noted scientists in this area, who brought this all to the attention of the public, said in his book "Asbestos and Disease," it is undisputed that the overwhelming majority of exposure-only plaintiffs will never develop asbestos-related injuries.

It's -- it's -- the -- the science is clear. JUSTICE O?CONNOR: Well, should it turn, then, on the likelihood of the danger of developing the injury, if it's substantially likely that the injury -- that -- that the illness will occur in time --

MS. BIRNBAUM: Well, I --

JUSTICE O?CONNOR: -- and that it can be alleviated if there is early detection, and that there was, indeed, significant exposure?

I mean if all those fall into place, is there room under the text of this statute for medical monitoring recovery?

MS. BIRNBAUM: I -- I would say no, Your Honor. If there is a need for medical monitoring, that is something Congress should be deciding. The legislative branch should decide that. That's -- there are so many policy implications, besides the fact whether this does any good, besides the fact what the amici argue or whether it's necessary, beside the fact of how do we decide what is massive or substantial, beside the fact that we have no guidelines than the Second Circuit.

To open up and make the railroads the insurance, the HMOs for anybody who has been exposed to beyond background level -- because that's what's really being argued --

JUSTICE SCALIA: Why don't we let Congress decide this?

MS. BIRNBAUM: Well, because if there's going to be a whole new remedy, isn't this something the legislature should decide, based on public policy?

JUSTICE SCALIA: Yes, that's what I suggest. But you say a whole new remedy, you've conceded that we can create new remedies.

I mean the statute says, "who has suffered injury." And I presume that suffering injury meant something in 1908.

But you say we're not bound by that. We can -- we can define today things to be injury that were not injury in 1908.

MS. BIRNBAUM: I think we can -- we can define physical injury, we can define emotional injury. This Court did that in Gottshall.

JUSTICE SCALIA: Well, I know. I mean why do you limit it to those? Once you acknowledge that we're not bound to whatever Congress thought it was doing in 1908, you're letting this Court simply create a whole new tort law.

MS. BIRNBAUM: Well, I --

JUSTICE SCALIA: And you're just arguing, you know, you want us to develop that -- what do we base this -- this new tort law on?

Should we be guided by the -- the -- you say what, we should be guided by the common law. What does the common law mean?

MS. BIRNBAUM: Well, first of all --

JUSTICE SCALIA: It meant something in 1908. I'm not sure what it means no. What does it mean?

MS. BIRNBAUM: Well, I think it's what, generally, the law of the various States and Federal courts interpreting State law -- I would say it would be at least what the majority of courts would say.

JUSTICE SCALIA: The majority of the States.

MS. BIRNBAUM: I don't -- I don't -- I'm not making the argument, Your Honor, that you should do this. I'm arguing just the opposite.

You shouldn't do this --

JUSTICE GINSBURG: But, Ms. Birnbaum, you recognize that we did. If you take Wilkerson against McCarthy, it's typical of an era under FELA.

And so to say that -- you would have to be urging, if you want to go back to 1908, that this Court has a lot of overruling to do, with all those cases from a generation ago under FELA.

MS. BIRNBAUM: Well, Your Honor, there are those of you on this Court that will like to look at 1908 and decide that what was the common law in 1908 should govern.

There are those of you who don't believe that, and you're going to look at the common law as it has developed.

I would suggest to you that the overwhelming common law -- all of the common law in 1908, and the overwhelming common law today would require a physical injury before you permit a requirement for the kinds of damages we're talking about.

JUSTICE BREYER: How long ago -- just -- I mean if, on the assumption that you're supposed to look at the various relevant features from a public policy point of view, which maybe you're not or maybe we are, but on that assumption, how long ago did a serious, significant amount of exposure in the work place to asbestos stop?

MS. BIRNBAUM: It's going on probably today in many work places.

JUSTICE BREYER: So how -- how many of the people -- it's going on today, you think?

MS. BIRNBAUM: Certainly.

JUSTICE BREYER: All right. So how many --

MS. BIRNBAUM: It depends on how we define "substantial."

JUSTICE BREYER: Well, all right. What I'm thinking -- what I'm wondering is, is how many of the people -- the workers who are exposed, who need medical exams, are likely to be covered automatically by insurance that would provide for it?

MS. BIRNBAUM: I -- I don't -- I can't --

JUSTICE BREYER: Is there any way to find out something like that?

MS. BIRNBAUM: I -- I don't -- I don't know, Your Honor.

JUSTICE BREYER: Are many of them over 65?

MS. BIRNBAUM: Many would be. Many would not be.

CHIEF JUSTICE REHNQUIST: Well, don't most States follow the collateral source doctrine, that a plaintiff can recover for the cost of a medical exam from the defendant liable, even though the insurance reimburses the plaintiff through a contract?

MS. BIRNBAUM: Well, I think that has changed by statute in -- in many jurisdictions now.

But, yes, many jurisdictions --

JUSTICE BREYER: But that's what exactly I'm interested in.

To what extent are we actually thinking of workers who won't get medical exams because they can't pay for them?

And to what extent are we thinking of workers who will have medical exams regardless, but will simply take this money as an extra amount of money that they or their attorneys or whoever would be able to share for other purposes?

MS. BIRNBAUM: There has been a great deal of literature on this --

JUSTICE BREYER: And where -- where would I look to find out the answer to that question?

Because I think it -- if it's from a public policy point of view, if relevant, it would make a difference as to whether you're paying for a worker's medical exam in reality or whether you're simply adding extra money to the worker's pocket -- at least it might be?

MS. BIRNBAUM: Well, there is some -- yes, there is some literature.

JUSTICE BREYER: Where?

MS. BIRNBAUM: And I could -- I just don't have it in front of me, but I could let the Court know what it is -- in which they have studied the kinds of cases where workers have been provided money for medical monitoring in which they never went to a doctor and in which they took the money and pocketed the money.

And there is some literature on that by discussions and interviews with -- with workers.

If this were --

JUSTICE SOUTER: Ms. Birnbaum, do we know whether OSHA covers this --

MS. BIRNBAUM: Yes --

JUSTICE SOUTER: -- and would provide the -- would -- would OSHA require medical exams?

MS. BIRNBAUM: OSHA could require medical exams. OSHA did not require medical exams here because -- it's not in the record -- but -- because the amount of asbestos that was -- that was found in -- in tests during the period that he was working, but not in his work place, just didn't show the proper amount that the -- that the amount of asbestos was as high as OSHA would require. OSHA has a provision that does cover this.

And OSHA does cover railroads in New York. So --

JUSTICE ANTHONY KENNEDY: And, incidentally, were there -- if there is a knowing -- under OSHA probably there is but maybe not -- suppose it were established that there was asbestos that was known to the employer and the employer deliberately concealed the fact from the workers and ordered them to be working here, knowingly subjecting them to very massive doses. Would that be a criminal violation?

MS. BIRNBAUM: It -- I don't know, Your Honor. But I know, in that situation, you might have an intentional act, which is not what we're talking about here.

We're only talking about a negligence act. And there could be different rules there or different rules that apply to intentional acts.

JUSTICE KENNEDY: Intentional --

MS. BIRNBAUM: And it could be --

JUSTICE KENNEDY: Intentional conduct was not alleged here in any of the --

MS. BIRNBAUM: No. No, Your Honor. It's just plain negligence.

No matter how the plaintiff would argue it, of outrageous, egregious, this was a stipulation of negligence. The conduct of the defendant was never argued before the court.

It was never --

JUSTICE STEVENS: But the statute doesn't draw any distinction between negligence and willful torts, does it?

MS. BIRNBAUM: The FELA statute?

JUSTICE STEVENS: Yes.

MS. BIRNBAUM: Yes, it's a negligence statute.

JUSTICE STEVENS: I say, it doesn't draw a distinction between negligence and more -- and reckless or anything else?

MS. BIRNBAUM: Right. Right. It's negligence alone.

CHIEF JUSTICE REHNQUIST: Well, in a sense, it -- it does define the -- the activating factor is negligence.

MS. BIRNBAUM: Yes, Your Honor.

CHIEF JUSTICE REHNQUIST: Is it not?

MS. BIRNBAUM: Negligence is what FELA is all about. The defendant is negligent and the plaintiff is injured. And --

JUSTICE KENNEDY: Is a violation of OSHA negligence -- evidence of negligence?

MS. BIRNBAUM: It would be evidence of negligence. And -- but it was not -- this was not even before the court here. And it was a stipulation.

JUSTICE GINSBURG: But you -- you conceded negligence?

MS. BIRNBAUM: Yes.

JUSTICE GINSBURG: Yes. And do any workers' compensation schemes provide recovery for any of the items of damages that are being sought here?

MS. BIRNBAUM: I do -- I can't -- I don't know the answer to that. But this would not be what we're talking about here under FELA.

I just don't know whether some workers' comps do -- statutes do -- and some don't.

But what is --

JUSTICE KENNEDY: If -- if we were to affirm this judgment and the employee got the recovery he seeks and he then later develops a serious disease from the asbestos exposure, could he sue again? Is that clear that he could not?

MS. BIRNBAUM: We say he could not under the one-judgment rule. This is not coming back for another type of injury, where some courts have permitted that to happen, where there has been an injury of asbestosis, and then you come back when you can get cancer.

We would say that the one-judgment rule would put him out of court.

JUSTICE O?CONNOR: Well, if the claim initially is for emotional injury and subsequently a claim for actual physical illness, you think that would be barred?

MS. BIRNBAUM: I think it would. But if --

JUSTICE GINSBURG: There is certainly precedent going the other way that I am intimately familiar with.

MS. BIRNBAUM: Yes, if it would -- if it would not, think what you're doing here. He would first recover for his anger, not severe emotional distress, which we haven't talked about, which almost every court has required -- for his anger -- then, if he gets pleural plaques or pleural thickening, he may come back again and say it's a pleural disease.

Then, if he gets asbestosis, he may come back again and say he has a different disease, asbestosis.

And then, if he gets cancer down the road, he can come back again and say he has cancer.

I mean, this is --

JUSTICE GINSBURG: The latter two, at least, there's a considerable precedent for saying that, if you recover for asbestosis and then you get this virulent form of cancer, you haven't split a claim, you have indeed two separate claims.

MS. BIRNBAUM: Many -- many courts have held that way, Your Honor.

So, in this particular instance, we have not only the one-disease or the two-disease rule, we have a totally different type of damages, then all of the potential of the personal injury damages.

I would suggest to you that the court -- the Second Circuit went off wrong on two instances. One, this man is not ? is not a bystander. He doesn't fall into the zone of danger rule.

He wasn't in peril of imminent injury. He was not -- he was not -- sustained any severe injury.

There is no physical manifestation of his injury. There is no objective evidence that he even sustained an emotional injury.

JUSTICE GINSBURG: I suppose one might say he was certainly in a zone of danger.

Working in asbestos dust-drenched air is a zone of danger.

You know that some of the people in that group are exposed to grave danger.

MS. BIRNBAUM: Then every worker who was anywhere near a toxic substance is in the zone of danger. And, clearly, that's not what this Court said in Gottshall.

What this Court said in Gottshall is you have to be in imminent danger of immediate harm.

This is a person who has a potential -- a mere potential -- of harm in the future.

It is -- the Second Circuit's opinion is unprecedented, when you look at it in all its pieces.

There is not one case in the entire United States -- certainly not in 1908 and certainly not today -- that has stripped the common law and FELA of all its limitations, of all its restrictions in this way, and opened up the floodgates, opened up the courthouse doors to any worker who has been exposed to any type of toxic substance that is above background range and who is worried or angry about what happened to him.

I -- I suspect -- and some of the amici have already said in the amici briefs -- that there have been class actions that have been brought since this decision for non-impaired exposed workers seeking medical monitoring and this type of emotional distress.

Almost every worker will be opening --

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Birnbaum.

MS. BIRNBAUM: Thank you, Your Honor.

CHIEF JUSTICE REHNQUIST: Mr. Goetsch, we'll hear from you.

MR. CHARLES C. GOETSCH: Thank you, Mr. Chief Justice, and may it please the Court:

Michael Buckley and the Snowmen of Grand Central Terminal are here to ask this Court to adapt the approach and the standard of Gottshall to the problem of toxic exposure in the railroad work place, and thereby fulfill the essential remedial purpose of the FELA, while also addressing the legitimate common law concerns about screening out trivial, fraudulent and unlimited claims.

And here is the concrete, bright line, scientifically verifiable test to do that.

First, three elements of proof. Proof of physical impact by a toxic substance.

You cannot have exposure and ingestion without physical impact. But that's not enough.

Second, proof of --

CHIEF JUSTICE REHNQUIST: Well, how -- let's talk about your first point for a minute.

I mean how about the person just walking down the street in a big city? I mean they're going to be able to show some ingestion of a toxic substance I suppose.

MR. GOETSCH: That's right, Your Honor. And this is precisely why the test I'm giving you, the three-part test, will screen out such trivial exposure.

CHIEF JUSTICE REHNQUIST: But the first obviously doesn't.

MR. GOETSCH: Exactly, yes. But -- but it's three -- it's a three-part test.

First, physical impact, exposure, ingestion. That's -- if you don't have that, you have no claim.

But that's not enough. You have to show an -- an increase in risk of developing a grave toxic disease.

Now, if you don't have any increase in the risk, there's no recovery. But that also is not enough.

JUSTICE SCALIA: But why a grave toxic disease? I mean, you know --

MR. GOETSCH: Well --

JUSTICE SCALIA: -- there are all sorts of risks that we go through in life, and you pay for them out of your own pocket. I mean, you know, life is --

MR. GOETSCH: Right. This is --

JUSTICE SCALIA: -- is not a bed of roses.

I'm walking down the street in New York or, worse yet, I'm standing in a crowded subway in New York and the person next to me coughs.

And -- and some of the -- some of his cough lands upon me or in the ambient air and I ingest it.

So there has been an impact. Your -- your test number one has been met.

MR. GOETSCH: That's right.

JUSTICE SCALIA: This person is coughing, presumably because he has a cold.

MR. GOETSCH: Correct.

JUSTICE SCALIA: And I'm very careful about such things. Let's say I'm elderly, and -- and getting a cold could be very harmful.

Now, is he liable to me for -- for medical monitoring thereafter?

MR. GOETSCH: Absolutely not, Your Honor.

JUSTICE SCALIA: Why not?

MR. GOETSCH: Because there has to be a three-part test that will screen out the trivial, the fraudulent and the unlimited claims.

JUSTICE SCALIA: Well, that's not trivial to me. I mean I -- I don't want to have a cold.

MR. GOETSCH: Well, okay, now, here's the point. Here's the point, Your Honor. The Railroad is asking for a genuineness test, in effect.

They say you cannot recover without some common law indicia of genuineness -- a manifest symptom, psychiatric testimony and so on.

But that's the genuine test that this Court rejected in Gottshall.

JUSTICE SCALIA: Well, it's not a cold, it's the flu. It's not a cold. It's the flu. The flu can be very serious, very painful.

Am I entitled -- every time somebody causes me some inconvenience, do I have a cause of action?

MR. GOETSCH: No, Your Honor, absolutely not. And that's the standard that -- that I'm giving you --

JUSTICE O?CONNOR: Well, what's your third test?

JUSTICE STEVENS: Give us the third point.

MR. GOETSCH: The third test is -- JUSTICE O?CONNOR: We've gotten the two, can we hear the third?

MR. GOETSCH: Thank you, Your Honor. (Laughter.)

MR. GOETSCH: The third test is competent expert testimony establishing a scientifically verifiable basis for a reasonable fear of a future toxic disease.

Now, that expert testimony has to be --

JUSTICE SCALIA: That -- that doesn't help my questions at all. I mean --

MR. GOETSCH: Well --

JUSTICE SCALIA: -- if you get coughed on, you're likely to get a cold or flu --

MR. GOETSCH: But -- no, no. We're talking about fear of future death -- death by cancer. We're not talking about a cold or the flu, Your Honor. That's the point here.

CHIEF JUSTICE REHNQUIST: Well, what about -- what about pneumonia? (Laughter.)

CHIEF JUSTCIE REHNQUIST: I mean you can up the ante, you know, from a cold to flu to pneumonia. And pneumonia for elderly -- elderly Americans, as we call ourselves -- can be -- (Laughter.)

CHIEF JUSTICE REHNQUIST: -- can be very harmful.

MR. GOETSCH: Your Honor, this case is about toxic exposure in the railroad workplace. And we're not talking about -- what we're talking about are regulated hazardous substances. JUSTICE O?CONNOR: Well, I'm in the workplace and some of my employees come to work with severe colds.

And we work closely together. They cough. And we ingest some of the substance that they're coughing.

And my doctor tells me yes, it's very likely that you will develop pneumonia from exposure to this sort of thing.

Now, I have a good doctor, reputable. It's reasonably likely that that's what's going to happen. Recovery?

MR. GOETSCH: No, Your Honor. JUSTICE O?CONNOR: No?

MR. GOETSCH: It's not a known carcinogen. It's not regulated --

JUSTICE BREYER: But known carcinogens are the same.

I could spend the whole rest of your time reading you a list of known carcinogens.

There is no fruit or vegetable that you can eat that is not going to have at least several molecules of pesticide residue.

There is nothing in this room that doesn't contain some elements of known carcinogens. All right.

So your first two tests don't help distinguish your case, I think, from tens of thousands of millions of cases affecting every man, woman and child in the United States.

So, therefore, the third part of your test must do it. And that's what I want to know -- how?

Because I suspect, in every instance in which my 50,000-substance list of known carcinogens is concerned, where in fact negligence is at stake, you will find at least one expert who would come in and say, well, negligence is at stake, why isn't negligence -- there must be some significant risk.

And, therefore, I take it that what your third test is going to do is allow every -- a claim of negligent infliction of emotional suffering without limitation.

MR. GOETSCH: No, Your --

JUSTICE BREYER: All right. Now, what I want to know is why isn't that so.

MR. GOETSCH: Okay, let's take an example, Your Honor. The Snowmen of Grand Central Terminal are leaving their job site at the end of the day. They're walking through the terminal.

They're covered from head to toe with a white --

JUSTICE BREYER: No, but you're covered from head to toe when you dive into a swimming pool -- covered with chlorine.

Somebody could say -- you're covered from head to toe when you sit and have apples -- you know, thousands of them around you.

There is -- there are tens of thousands of toxic substances which, to some degree or other, create small risks of cancer.

MR. GOETSCH: And that --

JUSTICE BREYER: And -- and what -- in your case, you talk about a five percent increase in the risk -? ten percent increase.

You get 100-percent increase of being hit by lightning if you go to the top of a hill. All right?

The amount of increase is not significant. What's significant is the risk. And even in your case, I can't find out what the risk is.

MR. GOETSCH: Okay.

JUSTICE BREYER: The very case where you say, must be an example of such a claim.

MR. GOETSCH: The -- the third element demands and requires a scientifically verifiable basis for a reasonable fear of future grave toxic --

JUSTICE BREYER: Well, isn't that an element of every claim for negligent infliction of emotional suffering? How else could there be negligence?

MR. GOETSCH: Look, this -- what I'm saying is that this is an FELA case that has to be interpreted in a remedial and humanitarian fashion. The problem we have --

CHIEF JUSTICE REHNQUIST: But -- but -- just a minute.

MR. GOETSCH: Okay --

CHIEF JUSTICE REHNQUIST: What does that mean to say it has to be interpreted in a remedial and humanitarian fashion?

This Court used language like that, as Justice Ginsburg pointed out, years ago. But recently we have backed off of that, to have a more neutral approach.

MR. GOETSCH: Well, what I meant, Mr. Chief Justice, was that the essential remedial purpose of the FELA is to promote safe operating conditions on the nation's railroads by allowing recovery for -- for harms and injuries that occur to -- to employees --

CHIEF JUSTICE REHNQUIST: Okay. I didn't -- I interrupted you while you were answering Justice Breyer's question. Why don't you return to that.

MR. GOETSCH: Okay. Justice Breyer, if I recall your question -- which I may not at this point --

JUSTICE BREYER: My question -- (Laughter.)

JUSTICE BREYER: My question was simply how your limitation is any limitation.

MR. GOETSCH: Okay.

JUSTICE BREYER: It seemed to me that as you say it, your limitation is no limitation, but rather, in any serious negligence case, would allow recovery.

MR. GOETSCH: All right. And my illustration of the -- how it would function to limit that situation, Your Honor, is that a railroad clerk walks by the Snowmen when they're walking out of the tunnels, and later learns that that dust on them that that clerk breathed was in fact carcinogenic asbestos.

That clerk has a reaction, goes to a psychiatrist, has severe distress -- physically manifests distress -- the psychiatrist confirms this is genuine distress.

This person has severe emotional distress. No question about it.

This test would hold that that clerk cannot recover, because there is no scientifically verifiable basis for that clerk to have a reasonable foundation -- scientific foundation -- to fear the future development of asbestos cancer.

JUSTICE O?CONNOR: But why is a three percent increase in the risk a basis?

MR. GOETSCH: Because -- JUSTICE O?CONNOR: Or five percent? That doesn't sound significant.

MR. GOETSCH: It doesn't sound significant, Justice O'Connor, but it is an enormous increase in risk.

The record in this case establishes that that is a 10 to 50 times greater risk than what is considered to be a highly significant risk.

What it means --

JUSTICE BREYER: Well, as for that, how do we know if it's a lot or a little? I'll tell you right now, your risk is doubled of being hit by lightning if you walk out the door.

It's unlikely. All right. Do people worry about being hit by lightning because they're outside?

The risk of lightning is 1 in 2 million. If you're on top of a hill, it's probably 1 in 500,000.

That's quadrupling -- not just five percent. How do we know the significance of this five percent without knowing what the underlying risks are?

That's something that I haven't been able to find in the record.

MR. GOETSCH: His underlying risk of death from cancer due to asbestos was zero, Your Honor.

It has now been increased from one to five percent. Which means that if all the Snowmen of Grand Central were -- share that one to five percent increased risk, it means that between two and eight of them are going to be killed.

CHIEF JUSTICE REHNQUIST: How can -- how can you be so sure his underlying risk was zero? Maybe he went to school in a classroom that had asbestos in it.

I mean I don't think you can just assume without proof that the large majority of people in the country have a zero risk.

MR. GOETSCH: But there's no scientific basis for them to fear future asbestos cancer. And that's my point.

Is that those people shouldn't be able to recover.

JUSTICE BREYER: What do you mean "fear"? We know that any -- look, my problem -- the reason I'm going into this is to suggest how complicated and difficult, as soon as you start using words like "increased risk," anything is possible. All these substances have increased risks.

And -- and, therefore, what kind of standard are you offering that would in fact permit some recovery for emotional distress without saying in any toxic substance case, any significant toxic substance case, automatically you get emotional distress injury?

See, you purported to have some limitations. And as I listen to them, I didn't see how they were going to limit. That's why I asked my question.

MR. GOETSCH: Okay. All we can rely on, Justice Breyer, is objective scientific evidence to -- to confirm the legitimacy of the fear of the future.

If there is no basis -- if there's no connection -- JUSTICE O?CONNOR: But don't you agree, you can always find a reputable doctor who will say yes, there is a reasonable fear of this danger in the future?

MR. GOETSCH: Your Honor, I do not believe that is true in this field -- JUSTICE O?CONNOR: Well, certainly that's been my experience over 30-some years --

JUSTICE SCALIA: Or, if necessary, an unreputable one. (Laughter.)

MR. GOETSCH: All we have, Justice O'Connor, is Daubert, which vets expert testimony for is it reliable, is it trustworthy, is it based on scientific method.

I mean that is the standard that --

JUSTICE BREYER: But the problem is not fake scientists.

The problem is that 500,000 people will die of cancer every year.

And of course exposure is real. And of course it's a great concern.

They're telling the truth. These substances are dangerous.

And so, are we supposed to say, because of that true fact, not a false fact, that everybody who has some exposure to a substance that significantly increases the chance that he or she will get cancer -- probably the entire population of the United States -- are we to say that they are to have a cause of action for emotional suffering when they do suffer?

Of course they worry about these things. That -- I mean that's the difficult question. It isn't as if it's a fake question. It's a real question.

MR. GOETSCH: And -- and Justice Breyer, we're talking about railroad employees who are negligently toxically exposed. That's all we're talking about.

We're not --

JUSTICE BREYER: I know. And so shall each person who is negligently exposed to a serious toxic substance -- i.e., vast numbers of people -- have causes of action for infliction of emotional suffering?

That's the question, not the answer. And, therefore, I'm still looking.

Your answer could be yes, they all should have it. Or the answer might be no. Or it might be somewhere in between.

MR. GOETSCH: My answer is that the only objective scientific standard that we can rely on is legitimate, verifiable scientific bases --

JUSTICE STEVENS: Mr. Goetsch, can I ask you a question that has been running through my mind that's been touched on? And that is, supposing the law is -- and I don't know whether it is or not -- that if your client recovers in this case, that will be the sole recovery for this exposure? There -- you get one bite at the apple. You can sue early or you can wait till you really get -- the disease manifests itself.

Do you think all of your clients would -- would bring this case?

CHIEF JUSTICE REHNQUIST: You can ponder your answer to that question. We'll resume at one o'clock, Mr. Goetsch.

CHIEF JUSTICE REHNQUIST: We'll resume argument now in No. 96-320, Metro-North Commuter Railroad v. Buckley.

MR. GOETSCH: Thank you, Mr. Chief Justice --

JUSTICE STEVENS: Counsel, just to refresh your recollection, the question I intended to leave with you -- we left in kind of a hurry -- was that, assuming that the rule is that your client may only have one bite at the apple and -- as a result of the exposure to asbestos that he's already had -- the particular individual.

Would he -- would he bring the lawsuit in its present posture?

MR. GOETSCH: Yes, Your Honor, assuming that that's the rule and not the separate disease rule, which I believe Justice Ginsburg referred to.

This is not a claim for present physical injury. This is a negligent infliction of emotional distress claim, which, by definition, means that there is no present physical injury.

So when there are physical injuries down the line, for asbestosis, lung cancer, et cetera, those -- those physical injuries will -- will accrue.

And -- but --

JUSTICE STEVENS: Yes, but my assumption is that he can only recover for one tort and only get one recovery.

Even if he has 19 different injuries, if he happens to sue for only one of them, and this is the one he elects to sue for, do you think he'd sue for this one, assuming he'd be barred from bringing a further action for other injuries?

It's really the same injury, it's just manifested itself with further harms in it.

MR. GOETSCH: Well, assuming that that is the applicable rule, then he would have to make a choice.

And -- and he could very well choose to wait. All right.

But that's not the rule that the -- that the common law is -- the --

JUSTICE STEVENS: No, but we're interpreting a statute, and the question, as I understand it, has not been resolved by this Court.

And it would seem to me, a permissible disposition of a case like this would be to say sure, you can bring this suit, but that's it.

MR. GOETSCH: Well, that issue was not raised or discussed below and hasn't been briefed to --

JUSTICE STEVENS: Yes, but it seems to me you are taking -- you may well, as counsel for this particular plaintiff, be taking the risk that that's the outcome of this case.

MR. GOETSCH: I don't believe so, Your Honor, because, again, this is not a claim for a present physical injury.

It's an emotional distress claim, which, by definition, does not include --

JUSTICE SOUTER: Assuming that you are taking that risk, would your risk be different if you switched to your claim for compensation for -- for the cost of medical monitoring?

MR. GOETSCH: I think --

JUSTICE SOUTER: Would that be on a different footing?

MR. GOETSCH: Well --

JUSTICE SOUTER: Because that would -- that would be -- that would be a purely economic injury.

MR. GOETSCH: To the extent that it allows the plaintiff to discover, the accrual of a physical injury for lung cancer and so forth, it allows the plaintiff to -- to minimize his -- his damages by getting the early detection and --

JUSTICE SOUTER: Well, no, but isn't your theory that it's an entirely different tort?

MR. GOETSCH: It -- the legal injury for -- for that is the invasion of the legally protected interests in being free from having to undergo those types of tests and examinations which were caused solely by the negligence of the railroad --

JUSTICE SOUTER: And that -- that had nothing to do with present physical injury and it has nothing to do with the emotional consequences of the contact; it's entirely separate, as I understand it?

MR. GOETSCH: Yes, Your Honor. It is the invasion of that legally protected interest.

JUSTICE KENNEDY: So then you really could have brought two suits; you could bring just emotional distress, go to the jury on that, and then you could again bring a cause of action for medical monitoring?

MR. GOETSCH: I don't believe so be -- for this reason, Justice Kennedy.

The basis for a medical monitoring claim is proof of exposure, increased risk and a medically verifiable basis for exams that detect and treat that increased risk of future cancer.

JUSTCIE KENNEDY: Well, those were also the predicate tests for allowing recovery for emotional distress, were they not?

MR. GOETSCH: Exactly. So --

JUSTICE KENNEDY: Precisely the same.

MR. GOETSCH: So that if you qualify for a medical monitoring claim, you also qualify for the fear of future cancer claim by the previous three elements.

JUSTICE SCALIA: Are you seeking just the reimbursement for those medical expenses? Or are you -- you described that what's at issue is his right to be free from having to undergo these tests.

So I guess you're seeking both damage -- both the costs of the tests and also damages for having to undergo them?

MR. GOETSCH: Well --

JUSTICE SCALIA: They?re -- they may be painful. They're certainly inconvenient, at least.

MR. GOETSCH: The --

JUSTICE SCALIA: Are you --

MR. GOETSCH: The damages are for the costs of the tests in the past and into the future.

JUSTICE SCALIA: Just the costs, though?

MR. GOETSCH: Yes, Your Honor. But the injury --

JUSTICE SCALIA: Why --

MR. GOETSCH: -- that the injury is the invasion of that legally protected interest, to be free of having to undergo those tests and bear those costs.

JUSTICE SCALIA: Well, then, he should get damages for having to undergo the tests, shouldn't he?

MR. GOETSCH: Yes --

JUSTICE SCALIA: Not just the costs of the tests.

MR. GOETSCH: Well --

JUSTICE SCALIA: It's just like saying, you know, if somebody tortures you, you don't -- you don't just get the cost of the torture instruments, you presumably get -- (Laughter.)

MR. GOETSCH: Okay. Here's -- here's the distinction. You can qualify for fear of future cancer emotional distress, but not qualify for medical monitoring damages for this reason, that the science, the medicine may say, look, you're going to -- you have this reasonable basis to fear this increased death from cancer.

But there's no medical tests or procedures that can detect it early enough or treat it early enough to do any good.

So --

JUSTICE SOUTER: Well, are you -- are you telling us that if you can't win on emotional damage, you can't win on monitoring?

MR. GOETSCH: That's -- you can win on emotional distress for fear of future cancer and not win on medical monitoring, because the medical science simply isn't there.

There's nothing they can do to detect it and treat it beneficially.

JUSTICE GINSBURG: Are you saying that's true of this case?

MR. GOETSCH: Oh, no. No, no, no. I'm just saying --

JUSTICE GINSBURG: But you have a discrete claim for medical monitoring apart from any emotional distress.

They both would accrue at the same time if you had both, so -- so you couldn't split those two.

But suppose you're saying forget about emotional distress, that is fraught with too many problems, we still have a medical monitoring claim.

MR. GOETSCH: Yes. Yes.

JUSTICE GINSBURG: And you're not suggesting, are you, that -- that there is no such claim because there are no tests that can detect --

MR. GOETSCH: Not in this case, no. The record is clear that the medical monitoring costs are indicated and based on medical proof.

JUSTICE BREYER: Have you any idea of the size of the universe that we're talking about, in terms of potential plaintiffs who really would not have other sources of paying for medical monitoring?

I'm -- just in case it's relevant. The ones I was -- so that they don't have insurance, they're not on medicare, they're not on medicaid and they actually have medically indicated need for medical monitoring tests.

Have -- is there -- there might be, in the literature, something that gives us a rough idea of that universe.

MR. GOETSCH: The amici brief filed by Mr. Simon might refer to that, Your Honor. I'm not sure. I don't have that at my fingertips. But I do want to make the point that this universe, as you call it, is limited to railroad workers who have a legally protected interest, under the FELA and OSHA --

JUSTICE SCALIA: Well, but that's not so. You're -- you're asking us to interpret the FELA according to the common law.

So what you're trying to persuade is that, in general, the common law ought to protect these interests.

And since the common law, in general, protects them, they are protected under the FELA. You're not arguing for a peculiar rule for the FELA.

Is there any language of the FELA that would make that the rule, if it's not the general common law rule?

MR. GOETSCH: Your Honor, we are not here to argue for the federalization of State common law via the FELA.

The FELA -- the common law is a smorgasbord --

JUSTICE SCALIA: I understand that, but you're arguing that this should be the FELA rule only because it is the general common law rule.

Isn't that your argument?

MR. GOETSCH: No, no, no.

JUSTICE SCALIA: Oh, it isn't?

MR. GOETSCH: The starting point is Gottshall.

Gottshall says that if you want to recover for a negligently inflicted emotional distress under the FELA, you start with a zone of danger test, which is physical impact or threat of physical --

CHIEF JUSTICE REHNQUIST: But that itself was derived from the common law.

MR. GOETSCH: Yes. And that's our starting point here, Your Honor.

CHIEF JUSTICE REHNQUIST: Well, it?s -- but if we were to affirm here, it seems to me this is going to be a precedent not just for FELA, but because we say it's based on the common law, the common law generally.

MR. GOETSCH: No, Your Honor, I strongly disagree with that for this reason.

The common law has everything under the sun -- every remedial, conservative, liberal, conservative case law -- cases.

Simply because this Court selects one remedial line of common law cases to assist it to fulfill the remedial and humanitarian purpose of the FELA --

CHIEF JUSTICE REHNQUIST: Well, now --

MR. GOETSCH: -- it doesn't mean you're endorsing that for all the --

CHIEF JUSTICE REHNQUIST: Well, I, for one, don't endorse your remedial and humanitarian comment, which you've repeated several times.

I don't think the Court has followed that track in the last several FELA decisions it?s handed down.

And I think Gottshall is a rather neutral application of what we conceive to be the common law.

MR. GOETSCH: And under Gottshall, the plaintiffs in this case recovered. They have physical impact.

That is the test -- physical impact or threat of physical impact. Clearly, they had physical impact --

JUSTICE KENNEDY: Didn't Gottshall talk about immediate threat of physical impact, or am I incorrect in that respect?

MR. GOETSCH: Only -- only where there's no physical impact, Your Honor.

It was physical -- page 2406 of the Gottshall decision -- physical impact or the immediate risk of physical harm.

That -- there's two doors. If you have physical impact, you go in that door.

If you don't have physical impact, you have to go through the door which is threat of physical impact or immediate risk of physical harm.

That is the Gottshall test. The plaintiffs here satisfy that test.

JUSTICE SOUTER: Mr. Goetsch, let's -- let's assume they do, at least as a threshold matter. Let me ask a question which, in a way perhaps, is somewhat similar to Justice -- or gets to the same point that Justice Breyer's would.

We heard from your opposing counsel this morning that when the exposure reaches some measurable level -- and I'm not quite sure how it was measured -- that OSHA would kick in with a medical monitoring remedy.

I want you to, if you will, comment on two things. Is it correct that OSHA would not apply to the facts of this case?

And if that is so, shouldn't we take that fact into consideration in deciding how far we ought to go in developing a -- an FELA common law when another -- when the Congress of the United States, in another statute, has said this degree of exposure simply does not merit -- merit a medical monitoring remedy?

MR. GOETSCH: OSHA applies when an employee is exposed over the permissible exposure limit for more than 30 days a year.

That is determined by medical -- by air -- by taking air tests of the employee while he's actually working and in his general work area.

The Railroad, from 1985 to 1988, when they were exposing the Snowmen without warning, training or protection, didn't take any air tests, in violation of OSHA.

Therefore, there's no OSHA air tests over the permissible exposure limit. Therefore, OSHA doesn't apply to these plaintiffs, and they?re -- they are not getting OSHA medical surveillance.

The point is this. The Railroad here saved an enormous amount of money by -- by exposing their workers, without warning, training or protection, to a --

JUSTICE SOUTER: No, but in any case, your answer is that it is merely for lack of administratively acceptable evidence that OSHA does not cover this case and grant the remedy that you want -- the monitoring remedy that you want.

MR. GOETSCH: My point is that you can't rely on OSHA to deter this type of conduct by railroads.

JUSTICE SOUTER: No, I don't -- I want to hear what you say, but was my statement a moment ago correct, that the only thing that prevents an OSHA remedy from being extended to your clients in this case is the lack of a certain administratively necessary or legally necessary evidence under the OSHA statute?

MR. GOETSCH: The lack of evidence means that the Railroad is not required to provide such medical surveillance.

But even if they were, Your Honor --

JUSTICE SOUTER: But your claim is that if -- that the evidence should have been provided. And if it had been provided, you would be entitled, under OSHA, to the monitoring remedy that you seek here; is that correct?

MR. GOETSCH: That the plaintiffs would be entitled, under OSHA, to OSHA medical surveillance.

But that does not cover all the medical monitoring costs that have been established and recommended --

JUSTICE GINSBURG: You said the tests weren't taken. But you -- there's nothing to show what the tests would have shown if they had been taken?

MR. GOETSCH: Well, the -- the only evidence in this case is that the levels were massively over the OSHA's levels.

But there were no air tests taken by the Railroad because they didn't want to tell anybody that it was asbestos that they were having their employees work on.

JUSTICE GINSBURG: Before you conclude, may I ask your reaction to one point that was made, that in the universe of asbestos victims, if one were to have a line, one would certainly put at the head of the line the people who get this virulent form of cancer, and maybe next you'd go down to the asbestosis victims, and then I suppose the last people you would get to are the people who have -- have had exposure, but haven't manifested anything.

So in -- by pressing these claims, aren't you putting at risk people who, 20, 30, 40 years from now, will develop a dread disease?

MR. GOETSCH: Not as far as the defendants in this case, which are railroads, are concerned.

It's a very narrow class of plaintiffs that we're addressing here. We're not addressing general common law plaintiffs or defendants.

We're simply talking about the -- the FELA. And what the Snowmen are asking this Court to do is to interpret and apply the FELA in such a way that railroads will not even think about doing this -- exposing their workers to a known carcinogen, without any warning, training or protection, in order to save money.

Thereby, it's --

JUSTICE BREYER: Well, what I would imagine, in terms of the deterrence, a large number of people will get cancer, will get these diseases and will have undoubted enormous liability.

MR. GOETSCH: Well, in --

JUSTICE BREYER: So what -- I mean --

MR. GOETSCH: -- in --

JUSTICE BREYER: So what I'm worried about very much is what Justice Ginsburg pointed out.

I mean, to what extent, by allowing a universal cause of action for the medical, will we in -- for the medical testing -- will we in fact interfere with the people who are undoubtedly hurt ?-

MR. GOETSCH: Well --

JUSTICE BREYER: -- that is, who have the disease -- from getting recovery. Is the answer to that zero?

MR. GOETSCH: I'm sorry, Your Honor, what --

JUSTICE BREYER: Is it the case that there is or there isn't a serious practical concern that if people can recover -- often extra, because they have the tests anyway -- for all this testing, that there will be significant interference with recovery by people who do have the disease?

MR. GOETSCH: Not -- I do not believe so in the case of the railroads, especially --

JUSTICE BREYER: Well, if you couldn't stop the principle from spreading.

MR. GOETSCH: Well, I think that this Court can and should make it clear that this is an FELA case based on the policies and concerns of the FELA, which the common law does not share.

Medical monitoring will enable these individuals to detect the disease early and hopefully beneficially treat it. So they don't have to die and bring a wrongful death case later on.

I mean the whole point of this is to mitigate and to reduce society's burden and the railroads' long-term burden for paying damages as a result of its negligent conduct in violation of the FELA, in violation of OSHA, in violation of these -- these human beings' who happen to be railroad workers legally protected duty to be free from this type of exposure to a known carcinogen.

And if the railroads are not held economically accountable under the FELA for this type of conduct, they will have no meaningful economic incentive to avoid it in the future.

Indeed, they can save substantial amounts of money by doing this again.

JUSTICE STEVENS: Well, that doesn't really follow. Because I thought -- isn't the hypothesis that maybe 1 out of 100 or 1 out of 50 -- that some of these people are going to get cancer, and when they do, they'll have a tremendous recovery?

MR. GOETSCH: In 20 to 30 to 40 years, Your Honor, when witnesses are dead and gone, documents lost and destroyed, the railroad merged and bankrupt, and the railroad says okay, you're dying of cancer, now prove it.

That's not enough of a deterrent to stop what's happening now.

They don't want to be subject to this --

CHIEF JUSTICE REHNQUIST: I think you've answered the question, Mr. Goetsch. The case is submitted. We?ll hear argument --