The Federal Employers' Liability Act, 45 U.S.C.S. § 51 et seq., at 45 U.S.C.S. § 51, mirroring the law of many States, sometimes permits recovery for damages for negligent infliction of emotional distress, and, in particular, it does so where a plaintiff seeking such damages satisfies the common law's "zone of danger" test. It defined that test by stating that the law permits "recovery for emotional injury" by those plaintiffs who sustain a physical impact as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct.
As a pipefitter for employer railroad, the employee was daily exposed to asbestos while removing insulation from pipes, often covering himself with insulation dust containing asbestos. The employee attended an "asbestos awareness" class and feared that he would develop cancer. Periodic medical check-ups revealed no evidence of cancer or any other asbestos-related disease. The employee sued for damages due to the employee's exposure to asbestos in his employment pursuant to the Federal Employers' Liability Act (FELA) and for emotional distress and the cost of future medical check-ups. The employer conceded negligence, but argued that FELA did not permit damages in the absence of physical harm. The district court dismissed the employee's actionbut on appeal, the appellate court reversed stating that the employee had incurred a "physical impact."
Was the employee entitled to damages?
The Court concluded that the employee could not recover damages and medical monitoring costs unless or until he manifested symptoms of a disease. The Court relied on Gottshall and held that (1) recovery for emotional distress required immediate traumatic harm from threatened physical contact, (2) "physical impact" was not mere exposure, (3) common-law precedent disfavored recovery, and (4) the employee exhibited no evidence of distress. The employee continued to work with insulating material, did not request a transfer, continued to smoke cigarettes, and had not been referred to a psychologist or social worker.