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The Steinberg Law Firm Offshore Injury Litigation |
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The Steinberg Law Firm, P.C. 3200 Travis, Suite 300 713-529-0025 |
Free Case Evaluation: E-Mail Mr. Steinberg Toxic Torts Most of the "action" in maritime personal injury today will be in the toxic tort area. Seamen are exposed to a number of toxic substances both as cargo (benzene, toluene, xyolene) and as substances they work with (pesticides, solvents, cleaners, paints). WHEN DOES THE CAUSE OF ACTION ACCRUE? Generally the cause of action accrues from the date of discovery of the illness or injury or reasonable discovery, rather than the actual onset of the disease or damage or exposure. 122 ALR Fed. § 2[b]. However, the law in this area is not clear and the question may be not when does the cause of action accrue, but rather which cause of action are you talking about? As the law has developed, there now exists a real question and a dilemma for the plaintiff's attorney as to when the cause of action accrues: Haggerty v. L & L Marine Services, Inc. In 1986, the Fifth Circuit Court of Appeals decided the case of Haggerty v. L & L Marine Services, Inc., 749 F.2d 315 (5th Cir. 1986). Mr. Haggerty was employed by L & L Marine Services, Inc., in April 1982, serving as a tankerman on a barge being loaded with chemicals at the Union Carbide Plant in Guyanilla, Puerto Rico. Due to an alleged defect in the barge and/or the equipment being used to load the chemicals, Haggerty was completely drenched with dripolene, a chemical containing benzene, toluene and xyolene. Haggerty doused his clothes and shoes with water immediately and then removed the clothes and took a shower several hours later. Haggerty suffered from dizziness, followed by leg cramps and the following day, he felt stinging in his extremities. Because of the symptoms, the extent of his immersion in the chemical, and his understanding of the carcinogenic effect of that chemical, Haggerty was fearful that he would contract cancer. The court noted in it's opinion that Haggerty clearly did not have any disease at the time that the case was tried and suffered no manifestations of any symptoms or ailments attributable to cancer. He had consulted with several doctors, however, and it was the suggestion of his doctors that he continue to undergo periodic medical examinations and laboratory tests. Haggerty brought suit under the Jones Act for damages which included pain and suffering, mental anguish due to the fear of developing cancer, and the medical expense of regular checkups to monitor against that disease. The District Court granted summary judgment for the defendants on the ground that no cause of action had accrued. The Fifth Circuit reversed the District Court and held that Haggerty suffered physical injuries and was entitled to pursue his Jones Act case. The court stated that the fear of cancer and attendant medical costs were damages which were recoverable citing the "single cause of action" rule. The Fifth Circuit stated that "the cause of action has accrued if Haggerty's injury was discernible on the occasion when he was drenched with the toxic chemical." Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223 (5th Cir. 1984). In the Albertson case, the Fifth Circuit had held that limitations barred the Jones Act and General Maritime law claims of a seaman because the plaintiff's headaches and nausea and a subsequent loss of consciousness gave the plaintiff knowledge of critical facts that he had suffered more than a minor injury. In the Haggerty case, the Fifth Circuit allowed recovery for present fear or anxiety due to the possibility of contracting cancer and the costs of periodic medical checkups. Haggerty at 319. The Haggerty court recognized the plaintiff's (and his attorney's) dilemma. The court stated: The victim of exposure to toxic substances which cause present harm and which may at some future time cause cancer or other serious disease is further victimized by the single cause of action rule. If Haggerty, for example, cannot prove a future probability of his contracting cancer when his trial is conducted but thereafter does contract the disease because of the 1982 exposure at Guyanilla, he will have no remedy for his damages suffered from cancer. Haggerty at 320. The "single cause of action" rule requires a plaintiff to bring all of his causes of action, i.e., present injuries (headaches, nausea, dizziness, etc.), together with his cause of action for cancer and it's effects without knowing: 1. whether he will in fact develop cancer; and 2. the extent of his damages as a result of the cancer. The Haggerty court discussed these issues but did not rule as to how courts should handle the case in the future other than to say that when the proper case is presented to the Fifth Circuit, the panel hoped that the en banc court would consider this problem, if Congress had not acted upon it by that time. Haggerty at 321. METRO-NORTH COMMUTER RAILROAD COMPANY V. BUCKLEY In 1997, the Supreme Court of the United States decided Metro-North Commuter Railroad Co. v. Buckley, 117 S.Ct. 2213, 138 L. Ed.2d 560, 1997 AMC 2309 (1997). Buckley was a railroad employee who for three years (1985-1988) was exposed to asbestos for about one hour per working day. In 1987 Buckley attended an "Asbestos Awareness" class and became fearful that he would develop cancer. Buckley did not manifest any symptoms of disease at the time he brought suit. Buckley sued his employer under the FELA, 45 U.S.C. § 51, for negligence. He sought damages for his emotional distress (the fear of contracting cancer) and to cover the costs of future medical checkups. His employer conceded negligence, but did not concede that Buckley had actually suffered emotional distress, and argued that the FELA did not permit a worker, who has suffered no physical harm, to recover his emotional distress or the costs of medical checkups. The District Court dismissed the plaintiff's claim finding that Buckley had not suffered an injury because he did not manifest symptoms of disease. On appeal, the Second Circuit Court of Appeals reversed stating that Buckley had indeed shown evidence of "physical impact" (the breathing into his lungs of the asbestos fibers) which was "massive, lengthy and tangible". Buckley 79 F.3rd 1337 (2nd Cir. 1996). The Second Circuit allowed recovery for the emotional distress and the costs of medical monitoring. In reviewing the Second Circuit the Supreme Court focused on the meaning of the term "physical impact", as that term was defined in Consolidated Rail Corporation v. Gottchall, 512 U.S. 532 (1994). The Supreme Court found that Buckley had not suffered a "physical impact" as defined in Gottchall because: 1. The impact was not a physical contact that caused or might have caused, immediate traumatic harm such as a car accident, gas explosion or train collision; 2. The exposure was not one consistent with Gottchall's "zone of danger test" because it did not involve a "physical invasion or menace"; 3. Common Law Courts, with few exceptions, have denied recovery to plaintiffs who are disease and symptom-free, and; 4. It is difficult for judges and juries to separate valid and important claims from invalid or "trivial" claim? The Supreme Court denied Buckley's claim for the reasons stated above and also denied him the costs of medical monitoring, at least to the extent that he sought these costs on a lump sum basis. THE QUESTION UNANSWERED BY BUCKLEY & HAGGERTY The Haggerty and Buckley cases when read together leave many questions unanswered. The most important dilemma for the plaintiff's attorney is: What happens to an injured seaman who suffers an acute physical impact and has present injuries and possible future injury or illness but who does not manifest symptoms of disease which may take years to develop? For example, these decisions do not resolve how to handle the following scenario: A worker is employed as a tankerman aboard a barge which is carrying a cargo of toxic chemicals including benzene, toluene and xyolene. The barge runs into a dock and splits in two. While walking on the deck during the collision, a tankerman falls into the chemical soup and is not rescued for approximately one hour. He is then taken to a hospital where he is treated for the acute symptoms of headache, dizziness and general malaise. Of course, he is not currently suffering from cancer or other disease because these effects will not occur until much later, if at all. The seaman must bring his cause of action for the immediate injuries i.e., headaches, dizziness, general malaise within the three years statute of limitations. The Supreme Court has made it clear that he cannot bring a cause of action for fear of cancer or the increased probability of cancer without a showing of ongoing symptoms of the disease. If he does not bring an action for the effects of cancer within the three year period from the date of his injury, is he time barred if he later develops cancer? This creates a dilemma for the plaintiff's attorney in deciding when and if to bring suit for the acute injuries. Additionally, if there is a real possibility that the short term exposure could have caused long term health effects the plaintiff's attorney should be vigilant not to allow any language in the release that would foreclose further actions if the seaman develops a disease that is attributable to the short term exposure. Contact us to discuss your case The Steinberg Law Firm investigates offshore injury claims. Please contact us for a free legal consultation. Please E-Mail Andrew E. Steinberg* at: slawfirm@swbell.net or submit your case here. *Not Certified by the Texas Board of Legal Specialization. |