Dead in the Water: Exposure-Only Injuries under the Jones Act

October 26, 2015

By Phillip M. Smith, Executive Senior Editor

Introduction

Oilfield workers across the state of Louisiana have filed negligence claims under the Jones Act for alleged exposure to asbestos-containing drilling mud additives during their employment.[1] A significant number of these seamen-plaintiffs, however, have no objective evidence of actual impairment to their respiratory system.[2] Some plaintiffs are unable to prove a physical condition or disease, as they can only show pleural changes resulting from exposure to asbestos.[3] Still, these workers contend that an injury under the Jones Act occurs even when the plaintiff is merely exposed to a harmful substance that results only in pleural changes.[4] Courts should dismiss these lawsuits unless the seamen can prove that their exposure to asbestos caused actual physical injury.

Seamen who suffer nothing more than pleural changes after asbestos exposure should not recover compensatory damages under the Jones Act. The negligence action available to seamen through the Jones Act is closely related to the Federal Employers’ Liability Act (“FELA”). Thus, FELA cases are persuasive authority for legal questions concerning the Jones Act.[5] Recent FELA cases in both federal and state courts indicate that exposure-only plaintiffs who have not suffered physical injury or symptoms have not suffered a compensable injury.[6] Likewise, courts should not permit seamen who are only able to establish pleural changes after exposure to asbestos to state a cognizable negligence claim under the Jones Act.[7]

I. Close Quarters: The Relationship between FELA and the Jones Act

Although general maritime law did not historically provide a seaman with a negligence action against his employer, the Jones Act, which Congress enacted in 1920, created a cause of action to recover damages for personal injury.[8] The Jones Act incorporated FELA—which consists of the laws “regulating recovery for personal injury to, or death of, a railway employee”[9]—by reference. The United States Supreme Court has held that “the Jones Act adopts ‘the entire judicially developed doctrine of liability’ under the Federal Employers’ Liability Act.”[10] The Supreme Court has also noted that the negligence principles governing FELA cases clearly should apply to Jones Act cases.[11] Thus, if a plaintiff must demonstrate physical impairment to state a compensable injury under FELA, courts should also require a seaman to prove manifestation of a physical injury or symptoms to claim a cognizable injury under the Jones Act.

II. Compensable Injuries under FELA

The plain language of FELA requires a showing of personal injury.[12] The United States Third Circuit Court of Appeals has consistently held that mere exposure to asbestos is insufficient to constitute a physical injury under FELA.[13] In Schweitzer v. Consolidated Rail Corp., the Third Circuit relied on the Supreme Court’s decision in Urie v. Thompson, which held that a FELA action for personal injury resulting from the inhalation of silica dust does not accrue until a silica-related injury manifests itself.[14] In extending the Supreme Court’s decision to exposure-only asbestos plaintiffs, the Third Circuit reasoned that “[i]f mere exposure to asbestos were sufficient to give rise to a F.E.L.A. cause of action, countless seemingly healthy railroad workers, workers who might never manifest injury, would have tort claims cognizable in federal court.”[15] In recent years, other circuits have agreed with the Third Circuit that subclinical damages, such as pleural changes, do not satisfy the requirements of a physical injury.[16]

In Norfolk & Western Railway Co. v. Ayers, however, the Supreme Court held that railroad workers with asbestosis could recover damages for fear of cancer without proof of physical manifestations if the plaintiff could prove the fear is genuine and serious.[17] In addition to the hurdles exposure-only plaintiffs face in demonstrating that their fear is genuine and serious, courts have recognized that the Ayers holding “does not apply to persons who were merely exposed to asbestos but who have not been diagnosed with any disease.”[18] Thus, without a clear diagnosis of asbestosis like the plaintiffs in Ayers, courts typically require proof of physical impairment resulting from asbestos exposure to demonstrate a cognizable injury under FELA.

III. Compensable Injuries under the Jones Act

Similar to FELA, the Jones Act also requires a showing of personal injury.[19] In a memorandum ruling for In re Asbestos Products Liability Litigation, the Federal District Court for the Eastern District of Pennsylvania held that a seaman who has been exposed to asbestos but has no physical impairments has not suffered an injury under the Jones Act.[20] The court recognized that the Third Circuit and other courts have held that physical impairment is required under FELA to state an injury for asbestos exposure.[21] Referencing state court decisions that have also held that asymptomatic asbestos-related conditions are not actionable,[22] the court concluded that because FELA requires a plaintiff to prove physical impairment or manifestation to state a cognizable injury, the Jones Act should also require such a showing.[23]

The court recognized that plaintiffs who have only pleural changes as a result of asbestos exposure are not injured because “pleural scarring does not constitute any loss or detriment,” “pleural plaques and pleural thickening do not affect the human body,” and pleural changes “do not cause pain and cannot be felt.”[24] The court also relied on basic tort principles recognizing that “[p]hysical harm means the physical impairment of the human body. . . . Bodily harm includes physical injury, illness, disease, impairment of bodily function, and death.”[25] The court then dismissed the claims of all plaintiffs who could only demonstrate pleural changes, holding that these plaintiffs could not demonstrate a cognizable injury under the Jones Act.[26]

Conclusion

Based on the sound reasoning of the Eastern District of Pennsylvania and numerous other courts throughout the country that have interpreted FELA, courts should not allow seamen who are unable to demonstrate physical impairment or manifestation—including those plaintiffs who manifest only pleural changes—to state a cognizable and compensable injury under the Jones Act. Those seamen who suffer only pleural changes are not injured. Accordingly, courts in Louisiana should dismiss these types of claims.

[1] See, e.g., Bridges v. Phillips 66 Co., 2013 WL 6092803, at *1 (M.D. La. Nov. 19, 2013).

[2] See Opposition to Plaintiff-Applicants’ Application for Supervisory Writ at 5, Cornwell v. Phillips 66 Co., No. 15-CC-1510 (La. Dist. Ct. Sept. 4, 2015). Only maritime workers who qualify as seamen are entitled to a negligence action under the Jones Act. Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995); see also Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 560 (1997).

[3] Opposition to Plaintiff-Applicants’ Application for Supervisory Writ, supra note 2, at 15 (referencing various expert reports). Pleural changes to the lungs do “not constitute any loss or detriment[,]. . . . do not cause pain[,] and cannot be felt.” In re Asbestos Products Liab. Litig., 2012 WL 3242420, at *2 n.9 (E.D. Pa. Aug. 7, 2012).

[4] See generally Bridges v. Phillips 66 Co., 2015 WL 737588 (M.D. La. Feb. 20, 2015); see also Jones Act Asbestos Lawyers: Oilfield and Offshore Asbestos Claim Lawyers, The Young Firm, http://www.jones-act-asbestos-lawyer.com (last visited August 24, 2015) (“Even if none of the above symptoms are present, and you recall working in or around the asbestos fibers, it is very likely you have asbestos fibers within your lungs. This condition can be determined by proper medical testing and such condition can form the basis for a claim relating to past asbestos exposure.”).

[5] See infra Part I.

[6] See infra Part II.

[7] See infra Part III.

[8] 46 U.S.C. § 30104 (2012).

[9] Id.

[10] Am. Dredging Co. v. Miller, 510 U.S. 443, 456 (1994).

[11] See Kernan v. Am. Dredging Co., 355 U.S. 426, 439 (1958).

[12] 45 U.S.C. § 51 (2012).

[13] Schweitzer v. Consol. Rail Corp., 758 F.2d 936, 942 (3d Cir. 1985).

[14] Urie v. Thompson, 337 U.S. 163, 170 (1949) (recognizing for statute-of-limitations purposes the plaintiff was not yet “injured” until the time he became physically ill).

[15] Schweitzer, 758 F.2d at 942.

[16] See, e.g., Parker v. Wellman, 230 F. App’x 878, 883 n.3 (11th Cir. 2007).

[17] Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 141 (2003). Asbestosis is “a chronic disease” where affected persons “have a significant (one in ten) risk of dying of mesothelioma, a fatal cancer of the lining of the lung or abdominal cavity.” Id. at 142.

[18] In re Asbestos Products Liab. Litig., 2013 WL 1628165, at *2 (E.D. Pa. Mar. 28, 2013).

[19] 46 U.S.C. § 30104 (2012).

[20] In re Asbestos Products Liab. Litig., 2012 WL 3242420, at *2 (E.D. Pa. Aug. 7, 2012).

[21] Id. at *6.

[22] See, e.g., Burns v. Jaquays Min. Corp., 752 P.2d 28, 30–31 (Ariz. Ct. App. 1987) (“[S]ubclinical injury resulting from exposure to asbestos is insufficient to constitute the actual loss or damage to a plaintiff’s interest required to sustain a cause of action.” (quoting Schweitzer v. Consol. Rail Corp., 758 F.2d 936, 942 (3d Cir. 1985))).

[23] Asbestos, 2012 WL 3242420, at *7.

[24] Id. at *2 n.9.

[25] Id. at *10 (citing Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 4 (2010)).

[26] Asbestos, 2012 WL 3242420, at *10.

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