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WASHINGTON-Business groups fear a Supreme Court case involving a railroad pipe fitter exposed to pipe insulation dust could open the floodgates of liability for all sorts of exposures to toxic substances.

At issue in Metro-North Commuter Railroad Co. vs. Michael Buckley is whether the railroad has to pay for medical monitoring for Mr. Buckley, a so-called "snowman" who worked as a pipe fitter in Metro-North's Grand Central Terminal in the late 1980s, simply because he fears he could contract an asbestos-related disease.

Snowmen were so named because they would emerge from railroad tunnels at the end of the day covered in white pipe insulation dust, according to Mr. Buckley's attorney.

Mr. Buckley, who admitted during lower court testimony that he was "mad," "scared," "upset" and "angry" at his employer for being exposed to asbestos, sued New York-based Metro-North under the Federal Employers Liability Act for $1 million, claiming emotional distress.

Mr. Buckley first saw a doctor concerning the exposure in 1990. He has shown no symptoms of any disease associated with asbestos and did not consult any mental health professionals about his fears before filing suit in 1994, according to court papers.

The U.S. Supreme Court heard oral arguments in the case last week. A U.S. District Court ruled in favor of Metro-North in 1995, but the 2nd U.S. Circuit Court of Appeals in New York reversed the original ruling last year and ordered the case back to the lower court for a jury trial.

Immediately after hearing arguments in the Metro-North case, the justices confronted the issue of asbestos yet again as they heard arguments in Amchem Products Inc. et al. vs. George Windsor et al.

The case involved the question of whether a court can certify a class for settlement purposes only. The case went to the Supreme Court after the 3rd U.S. Circuit Court of Appeals in Philadelphia rejected a class-action settlement reached between 20 former asbestos producers, including Amchem, that belong to the Center for Claims Resolution, and potentially hundreds of thousands of claimants suffering from asbestos-related diseases (BI, May 20, 1996).

The CCR is a Princeton, N.J.-based facility that provided a framework for member insurers and policyholders to settle coverage disputes and settle bodily injury claims.

Businesses are watching both cases closely.

In regard to Metro-North, Craig A. Berrington, senior vp and general counsel of the American Insurance Assn. in Washington, said that even if the court were to decide in Mr. Buckley's favor simply in the context of FELA, the ruling could have "dramatic ramifications."

The legal system historically has followed the "irreducible requirement" that individuals have to compensate those whom they have physically harmed or subjected to a "near miss" that caused other harm, he said.

Not requiring the proof of harm would "basically transform the legal system into a system to compensate people for the normal exposures in life," he said.

"The impact on societal costs is literally incalculable," said Mr. Berrington.

"The medical monitoring tort, if widely accepted, would have staggering implications for the administration of the civil justice system. This new tort opens the courthouse doors to literally millions of would-be claimants who have no demonstrable illness but who can allege some type of exposure to some substance that may create a risk of future illness. And, once inside the courthouse, these claims are not easily screened out because the medical monitoring tort, as courts have so far defined it, sets the threshold of a triable claim extremely low and tolerates-indeed invites-highly speculative proof," the Chemical Manufacturers Assn. and the National Chamber Litigation Center Inc. wrote in a brief supporting Metro-North.

Other business groups shared that assessment, but Mr. Buckley's lawyer disagreed.

"This argument has no foundation in reality and is based on two false premises: that the FELA case constitutes binding precedent on all non-FELA state and federal tort cases; and that the type of massive exposure to enormous amounts of asbestos fibers over a three-year period resulting in a significant increased risk of death from cancer suffered by the snowmen of Grand Central Terminal is a common, everyday occurrence throughout the nation," wrote Charles C. Goetsch of the New Haven, Conn., law firm Cahill, Goetsch & DiPersia in his brief to the court.

"The facts of this case are unique and will never recur as long as employers comply with (the Occupational Safety and Health Administration's) mandatory regulations for controlling asbestos in the workplace," he added.

Mr. Goetsch's assertion before the Supreme Court that the fact that the "snowmen" were covered with fibers was in and of itself significant did not sit well with at least one justice.

Anyone who takes a swim in a pool emerges "covered from head to toe with chlorine," said Justice Stephen Breyer, who added there was nothing in the high court's courtroom itself that did not contain a carcinogen.

Justice Antonin Scalia also seemed dubious of Mr. Goetsch's reasoning. He asked what would happen if a subway rider sneezes on another rider, therefore increasing the odds that the second person would contract a cold, the flu or even pneumonia. He wondered whether the sneezer should be responsible for the medical monitoring costs. "Every time someone causes me some inconvenience, am I entitled to a cause of action?" he asked.

"You can never say how important a case is before it's done. The actual issue is whether medical monitoring is a remedy under FELA," said Ronald Simon of the law firm Simon & Associates in Washington. Mr. Simon filed a brief supporting Mr. Buckley on behalf of the Assn. of Trial Lawyers of America and Medical & Scientific Professionals, a group of medical experts unaffiliated with Washington-based ATLA.

"If the Supreme Court were to be negative in this case, it wouldn't necessarily affect other cases," he said, because medical monitoring requirements usually are set by state rather than federal law.

"Medical monitoring for asbestos is done all the time. It's certainly legitimate," he said.

He added that he thought Metro-North had been fortunate its case was heard immediately before the Amchem asbestos class-action case, adding the perception that the courts are cluttered with asbestos-related litigation.

In Amchem, the appellate court held that the settlement between the asbestos makers and the current and future claimants violated Federal Rule of Civil Procedure 23 because disparity among the claimants' illnesses was greater than commonality. In addition, the court said classes formed only for settlement purposes must meet the same standards as those formed for litigation. And the court found that members of the class, which included people exposed to asbestos but who have no injuries now, could not be adequately represented by the counsel for the class.

"What the 3rd Circuit ruled is that, for purposes of determining whether a class can be maintained, a court must ignore the fact that the parties have settled and act as if the case were actually going to be tried. If the 3rd Circuit is upheld, then class-action settlements in virtually all areas of the law will be extremely more difficult to do, would lead to more individual litigation and needless wastes of resources," said Lawrence Fitzpatrick, president and chief executive officer of the Center for Claims Resolution.

"The Amchem settlement is a settlement of all future asbestos claims against the members of the Center for Claims Resolution. The settlement itself sets up objective medical criteria to weed out meritless claims and promptly compensates asbestos claimants who actually have asbestos-related disease."

Mr. Fitzpatrick added that, during the first 10 years of the settlement, it is anticipated that about $1.3 billion will be paid to claimants if the settlement is upheld.

"The sole issue before the court is whether a court considering a class-action settlement can take into account that the settlement has actually been reached," he said.

An attorney not directly involved with the case agreed Amchem could have a considerable impact.

"I think it's a significant case, certainly in the context of attempts by the judiciary to manage mass torts in general and on asbestos cases in particular. The asbestos litigation has bedeviled the courts for the past two decades in terms of sheer numbers, and the cases just don't seem to be going away," said John Kazanjian, a partner with Anderson, Kill & Olick P.C. in New York.

"I guess the real issue is whether the settlement itself is sufficient to permit those with future claims to have access to adequate compensation. It's really a balancing between trying to protect their legitimate concerns and the concerns of the judiciary in protecting the civil justice system. The issue is whether Rule 23 will permit this type of settlement," he added.