United States District Court, Southern District of New York
November 14, 1990
NICHOLAS GIAMMONA, PLAINTIFF,
METRO-NORTH COMMUTER RAILROAD, DEFENDANT.
The opinion of the court was delivered by: Whitman Knapp, Senior District Judge.
MEMORANDUM AND ORDER
This case arises under the Federal Employers' Liability Act,
45 U.S.C. § 51 et seq. ("FELA"). In his complaint, plaintiff
Giammona alleges that exposure to asbestos fibers has initiated
a "scarring process" in his lung tissue, and seeks to recover
damages for emotional harm and the costs of continuous medical
treatment caused by defendant's negligence or outrageous
conduct. Defendant moves pursuant to Fed.R.Civ.P. 12(b)(6) to
dismiss the complaint for failure to state a claim upon which
relief can be granted, arguing that under FELA there can be no
recovery for emotional harm absent some showing of actual
physical injury. For the reasons which follow, we deny this
Plaintiff, an employee of the defendant Metro-North Commuter
Railroad (hereinafter "Metro-North"), alleges that Metro-North
failed to provide a safe work environment in that it required
that he be exposed to harmful levels of asbestos without
providing him with protective clothing or warning him of the
inherent dangers. The complaint asserts that as a result of
the defendant's negligence or outrageous conduct plaintiff was
forced "to inhale and/or ingest into the tissue of his lungs
and body harmful amounts of hazardous materials, including,
but not limited to asbestos . . .", Compl. ¶¶ 14, 29, 42, and
that as a result of this exposure he has suffered "an invasion
of asbestos fibers into his lung tissue and body that has
initiated a scarring process in his lung" setting in motion an
injurious physical process that renders him more susceptible to
developing a variety of diseases. Compl. ¶¶ 15, 30, 43.
Consequently plaintiff pleads that he has and will "suffer
mental anguish and emotional distress and anxiety due to the
possibility and/or probability of contracting asbestos-related
diseases", Compl. ¶¶ 17, 32, 45, and that he has and will incur
continuing medical expenses for the testing and monitoring of
his medical condition. Compl. ¶¶ 18, 33, 46. Plaintiff
expressly concedes that — as of the filing of the complaint in
this action — he can not allege a clinically diagnosed
condition of asbestosis, or any other asbestos-related disease
or illness, and he accordingly disclaims attempting to recover
damages for any such future illness. Compl. ¶¶ 19, 34, 47.
Defendant contends that unless plaintiff can presently
allege a clinically diagnosed condition of asbestosis or any
other asbestos-related disease or condition, this claim should
be dismissed. Citing Amendola v. Kansas City Southern Railway
Co. (W.D. Mo. 1988) 699 F. Supp. 1401, defendant argues that
mere exposure to asbestos is not a cognizable injury under
FELA, and that
no recovery can be had thereunder for mental anguish absent
We note at the outset that we find it unnecessary — at this
juncture — to address the question of whether a FELA plaintiff
can recover for emotional distress absent some showing of
physical harm. Accepting all material allegations of the
complaint as true, as we must for purposes of this motion, we
find that in the instant action plaintiff has alleged actual
physical injury, namely that he has suffered "a scarring
process in his lung tissue and body." Compl. ¶¶ 15, 30, 43.
Although the asserted harm to plaintiff's lungs may not rise to
the level of a clinically diagnosed disease, it does suffice to
differentiate this case from Amendola where the court held only
that the mere inhalation of asbestos fibers, alone, does not
represent an actionable physical injury. Amendola, 699 F. Supp.
at 1403 & n. 3; cf. Atchinson T. & S.F.R. Co. v. Buell (1986)
480 U.S. 557, 570, 107 S.Ct. 1410, 1418, 94 L.Ed.2d 563
(holding that the determination of what level, if any, of
physical harm which a FELA plaintiff needs to prove to support
a claim of emotional harm must be determined on a case by case
Accordingly, guided by the Supreme Court's pronouncement
that the term "injury" should be broadly construed under FELA,
Urie v. Thompson (1949) 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed.
1282, we find that the allegation that plaintiff has suffered a
detrimental physical change in his body tissue would, if
substantiated, be sufficient to support recovery for emotional
harm under FELA. Cf. Hagerty v. L. & L. Marine Services, Inc.
(5th Cir. 1986) 788 F.2d 315.
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