Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
Notes
1. Resistance to Dillon. The Supreme Court’s Buckley decision is not alone in its skepticism
for the Dillon approach. It may even stand for a broader resistance to Dillon’s heavy reliance on
an open-ended and case-by-case reasonableness analysis. Nearly fifty years after Dillon, seven
states still do not recognize claims for the negligent infliction of emotional distress absent
physical impact, retaining the old rule of Mitchell v. Rochester Railway. For cases retaining the
common law rule, see Arkansas, Mechs. Lumber Co. v. Smith, 752 S.W.2d 763 (Ark. 1988);
Georgia, Lee v. State Farm Mut. Ins. Co., 533 S.E.2d 82 (Ga. 2000); Idaho, Evans v. Twin Falls
Cnty., 796 P.2d 87 (Idaho 1990); Kansas, Hopkins v. State, 702 P.2d 311 (Kan. 1985); Oklahoma,
Kraszewski v. Baptist Med. Ctr. of Okla., Inc., 916 P.2d 241 (Okla. 1996); Oregon, Hammond v.
Cent. Lane Commc’ns Ctr., 816 P.2d 593 (Or. 1991) (en banc); and Virginia, Hughes v. Moore,
197 S.E.2d 214 (Va. 1973).
Justice Breyer’s opinion in Buckley does not, however, merely restate the generalized
fears of a glut of litigation cited by the state courts in cases like Mitchell and Ward. Instead,
Justice Breyer’s decision rests largely on a very specific policy consideration: the risk that paying
emotional distress damages for fear of cancer now might deplete funds available later for the
victims of deadly asbestos-related diseases like mesothelioma.
2. Buckley and medical monitoring damages. Buckley also advanced a separate claim for
damages arising out of increased medical monitoring costs. In a separate part of Justice Breyer’s
opinion for the Court, not excerpted above, he assumed that an “exposed plaintiff can recover
related reasonable medical monitoring costs if and when he develops symptoms.” But to the
extent that the Second Circuit had recognized a distinct “tort law cause of action [under the
FELA] permitting . . . the recovery of medical cost damages in the form of a lump sum” absent
such symptoms, the Supreme Court drew back. Justice Breyer noted that “tens of millions of
individuals may have suffered exposure to substances that might justify some form of substanceexposure-related
medical monitoring.” In Breyer’s view, this fact threatened “both a ‘flood’ of
less important cases (potentially absorbing resources better left available to those more seriously
harmed . . .) and the systemic harms that can accompany ‘unlimited and unpredictable liability’
(for example, vast testing liability adversely affecting the allocation of scarce medical resources).”
Breyer noted, for example, that while “Buckley here sought damages worth $950 annually for 36
years, “the average settlement for plaintiffs injured by asbestos” between 1988 and 1993 “was
about $12,500.” (Nonmalignant plaintiffs received settlements averaging still less: $8,810.)
Breyer also observed that “a traditional, full-blown ordinary tort liability rule would
ignore the presence of existing alternative sources of payment” such as health insurance or
statutorily-mandated monitoring for asbestos injuries, “thereby leaving a court uncertain about
how much of the potentially large recoveries would pay for otherwise unavailable medical testing
and how much would accrue to plaintiffs for whom employers or other sources . . . might provide
monitoring in any event.”
Accordingly, the Court rejected Buckley’s medical monitoring claim. In doing so,
however, the Court declined to “express any view here about the extent to which the FELA might,
or might not, accommodate medical cost recovery rules more finely tailored” than the lump-sum
full-recovery rule advocated by the plaintiff and adopted by the Second Circuit.
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