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No. 07-1152

 

In the Supreme Court of the United States

CHARLES ODELL WELDON, ET AL.,
PETITIONERS

v.

NORFOLK SOUTHERN RAILWAY COMPANY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF OHIO

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

GREGORY G. GARRE
Solicitor General
Counsel of Record
GREGORY G. KATSAS
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
LISA H. SCHERTLER
Assistant to the Solicitor
General
THOMAS M. BONDY
ANNE MURPHY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

An Ohio statute requires plaintiffs seeking tort dam ages for some forms of asbestos-related injury to make a complaint-stage prima facie showing that they have an asbestos-related physical impairment. The question presented is whether the Supremacy Clause permits the Ohio statute to be applied to plaintiffs whose causes of action arise under the Federal Employers' Liability Act.

In the Supreme Court of the United States

No. 07-1152

CHARLES ODELL WELDON, ET AL.,
PETITIONERS

v.

NORFOLK SOUTHERN RAILWAY COMPANY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF OHIO

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the Court's order inviting the Solicitor General to express the views of the United States. In the view of the United States, the pe tition for a writ of certiorari should be denied.

STATEMENT

1. This Court has recognized that asbestos litigation "defies customary judicial administration." Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999). The chal lenges of asbestos litigation arise from, inter alia, the variable nature and long latency period of asbestos- related disease, the large population of potential claim ants, and the finite and depleting resources of defen dants. Asbestos exposure can cause asymptomatic phys iological changes (such as thickening of the pleural tis sue outside the lungs), non-malignant pulmonary disease (such as asbestosis) that may or may not cause symptoms, or mesothelioma, a cancer that causes "agonizing, unremitting pain in the lungs" and "almost certain" death within a short period of time. Norfolk & W. Ry. v. Ayers, 538 U.S. 135, 168 (2003) (Kennedy, J., concurring in part and dissenting in part); see Commission on As bestos Litig., ABA, Report to the House of Delegates 6-7 (2003) (ABA Report);1 Peter H. Schuck, The Worst Should Go First: Deferral Registries in Asbestos Liti gation, 15 Harv. J.L. & Pub. Policy 541, 544 (1992) (Worst Should Go First). The latency period for asbes tos-related disease spans one or more decades, and for some exposed individuals, symptoms will never develop. ABA Report 6, 12.

Bankruptcies among asbestos defendants limit the funds available to compensate victims. Ayers, 538 U.S. at 169 (Kennedy, J., concurring in part and dissenting in part) (noting that 57 companies have been driven to bankruptcy by asbestos litigation). Statute-of-limita tions concerns encourage the filing of claims by plain tiffs who have been exposed to asbestos but as yet suffer no asbestos-related disease. ABA Report 9-11. In addi tion, for-profit litigation screening companies that "ac tively solicit asymptomatic workers," as well as lax or fraudulent pre-litigation medical examinations, have exacerbated the trends. Id. at 8-9.

2. a. In 2004, the Ohio General Assembly enacted a measure to address the "extraordinary volume of non malignant asbestos cases [that] continue to strain fed eral and state courts." Act of June 3, 2004 (H. 292), Am. Sub. H. Bill No. 292, § 3(A)(3), 2003-2004 Ohio Laws 3989. The statute requires certain state-court asbestos plaintiffs to file documentation with their complaint-in the form of a written report and medical-test results- establishing prima facie evidence that the plaintiff has a physical impairment for which asbestos exposure was "a substantial contributing factor." Ohio Rev. Code Ann. § 2307.92 (LexisNexis 2005). The filing require ment applies to asbestos-related claims that are based on a nonmalignant condition (i.e., a condition other than a diagnosed cancer), asbestos-related lung cancer claims brought by plaintiffs who also were smokers, and as bestos-related wrongful death claims. Id. § 2307.92(B), (C) and (D). The filing requirement does not apply to claims based on mesothelioma, a disease for which as bestos is the only known cause. Id. § 2307.92(E); see Ayers, 538 U.S. at 142 n.4.

A plaintiff alleging a non-malignant condition must establish that a "competent medical authority"-defined as a board-certified specialist who has treated and had a doctor-patient relationship with the plaintiff and spends no more than 25% of his or her time providing consulting or expert services in tort actions-has diag nosed the plaintiff as having an asbestos-related physi cal impairment. Ohio Rev. Code Ann. §§ 2307.91(Z), 2307.92(B) (LexisNexis 2005). The diagnosis must have taken account of the patient's personal and medical his tory, including all possible sources of asbestos exposure, and be based on a medical examination and pulmonary function testing. Id. § 2307.92(B). The statute specifies the minimum findings (with respect to respiratory im pairment, lung capacity, and chest x-ray results) that will substantiate a diagnosis that the patient has an asbestos-related physical impairment. Ibid. For smok ers with lung cancer, similar requirements apply, includ ing a diagnosis by a competent medical authority that the patient experienced substantial asbestos exposure, evidence of a minimum latency period of ten years be tween the patient's first exposure to asbestos and the diagnosis of lung cancer, and a finding by the specialist that exposure to asbestos was a "substantial contribut ing factor" to the cancer. Id. § 2307.92(C)(1). Plaintiffs in wrongful death actions must make a similar submis sion. Id. § 2307.92(D)(1).

The purpose of the medical screening provisions of the Ohio statute is to prioritize asbestos-related tort claims on the state court docket. H. 292 § 3(B)(1), 2003- 2004 Ohio Laws 3991. Cases in which the prima facie showing is satisfied proceed to discovery and adjudica tion, and cases in which the showing is not made are "administratively dismiss[ed] * * * without prejudice." Ohio Rev. Code Ann. § 2307.93(C) (LexisNexis 2005). The trial court "maintain[s] its jurisdiction" over the administratively dismissed case, the statute of limita tions is tolled, and the plaintiff may move to reinstate the case at any time by presenting prima facie evidence that satisfies the statute. Id. §§ 2307.93(C), 2307.94(A).

b. In its statement of findings and intent, the Ohio legislature indicated that "reasonable medical criteria" were "a necessary response to the asbestos litigation crisis in this state." H. 292 § 3(A)(5), 2003-2004 Ohio Laws 3991. The legislature noted that "the vast major ity of Ohio asbestos claims are filed by individuals who allege they have been exposed to asbestos and who have some physical sign of exposure to asbestos, but who do not suffer from an asbestos-related impairment." Id.§ 3(A)(5), 2003-2004 Ohio Laws 3990.2 The legislature found that reasonable medical criteria applied to claims at the outset of litigation would permit the state courts to "expedite the resolution of claims brought by * * * sick claimants and [would] ensure that resources are available for those who are currently suffering from asbestos-related illnesses and for those who may become sick in the future." Ibid.

3. a. Petitioners Charles Odell Weldon and Eric A. Wiles are former employees of Norfolk Southern Rail way Company (Norfolk) who filed suits against Norfolk in Ohio state court under the Federal Employers' Liabil ity Act (Railroads) (FELA), 45 U.S.C. 51 et seq. Pet. App. 17a-18a.3 Petitioners claimed that Norfolk negli gently exposed them to asbestos during the course of their employment and that they consequentially con tracted "'occupational pneumoconiosis including but not limited to asbestosis, silicosis, and[/]or coal workers lung disease and/or lung cancer.'" Pet. 8 (quoting Compl. para. 14). Petitioners also sought damages for their fear of contracting cancer in the future. Ibid. (citing Compl. para. 15). Petitioners filed their complaints in 1999, be fore the Ohio statute was enacted, and, following its en actment, did not file the required report and medical test results by the statutory deadline. Pet. App. 17a, 36a-37a.

In response, Norfolk filed a separate action for a de claratory judgment in the Cuyahoga County Court of Common Pleas seeking a determination that the Ohio statute applied to petitioners' pending FELA cases and that the statute "did not infringe on the Supremacy Clause of the United States Constitution." Pet. App. 18a. The Court of Common Pleas held that the FELA preempted the Ohio statute. Id. at 32a, 34a-39a. The Court of Appeals of Ohio affirmed, id. at 17a-31a, finding that application of the Ohio statute to FELA cases "might preclude claimants from vindicating a substan tive right to bring a claim" under the FELA, id. at 30a- 31a.

b. The Ohio Supreme Court reversed. Pet. App. 1a- 16a. The court first determined that the Ohio statutory scheme is "procedural in nature" because it "create[s] a procedure to prioritize the administration and resolu tion" of existing causes of action and does not "make it more difficult for a claimant to succeed on the merits of a claim." Id. at 7a-8a. The court also held that the stat utory requirements were not preempted as "procedural provisions [that] impose an unnecessary burden on FELA claimants." Id. at 8a-9a. The court relied on Minneapolis & St. Louis Railroad v. Bombolis, 241 U.S. 211 (1916), Missouri ex. rel. Southern Railway Co. v. Mayfield, 340 U.S. 1 (1950), Johnson v. Fankell, 520 U.S. 911 (1997), and American Dredging Co. v. Miller, 510 U.S. 443 (1994), decisions in which this Court upheld the application of state procedural rules in cases brought under the FELA or another federal statute. Pet. App. 9a-12a. The court concluded that the Ohio statute was a "neutral" rule that "simply permits the court to prioritize claims for trial purposes" and imposes no greater burden on plaintiffs than the pleading stan dard contained in Rule 11 of the Ohio Rules of Civil Pro cedure. Id. at 12a (quoting Johnson, 520 U.S. at 918).

The Ohio Supreme Court noted that its finding of no preemption was "fortified by the fact that the federal courts themselves have responded to the growth of as bestos litigation by initiating a similar method to priori tize asbestos-related cases." Pet. App. 14a. The court explained that, like the Ohio statute, multi-district liti gation (MDL) procedural rules in federal court require asbestos tort plaintiffs to file with their complaint a "doctor-patient medical report setting forth an asbestos- related disease." Ibid. (quoting In re Asbestos Prods. Liab. Litig., No. MDL 875, 2002 WL 32151574, at *1 (E.D. Pa. Jan. 16, 2002)). As in Ohio state court, non- compliant federal MDL complaints are administratively dismissed without prejudice, but the statute of limita tions is tolled and the plaintiff may move to reinstate the case by filing the required information. Ibid. The court noted that the Ohio statutory provisions were "more specific than" the federal MDL order, but that "the ef fect and purpose [of the two procedures were] generally the same." Id. at 15a.4

DISCUSSION

This case involves only the threshold requirements under the Ohio statute concerning the claimant's medi cal condition, not other provisions such as those ad dressing the types of damages that ultimately may be recovered or the legal liability of particular employers. See note 7, infra. Petitioners principally contend that the Court's intervention is warranted because the Ohio Supreme Court "upheld statutory rules that impose stricter threshold medical evidentiary requirements than asbestos plaintiffs would need to satisfy as a mat ter of substantive law to have a claim submitted to a jury or to recover under the FELA if litigated in federal court." Pet. 1. We agree with respondent (Br. in Opp. 7-10) that petitioners' contention is, at this time at least, an unproven hypothesis. The Ohio Supreme Court made no determination that the state law medical criteria would exceed the substantive standards for liability un der the FELA. Petitioners' contention that the Ohio statute has the effect of raising the substantive standard for FELA liability thus finds no support in the Ohio Su preme Court's opinion, nor can it be assessed independ ently by this Court on the limited record in this declara tory judgment action, which does not include any evi dence of petitioners' conditions. For those reasons, fur ther review of petitioners' claim is unwarranted. This case, moreover, arises in an abstract posture, with es sentially only the validity of the Ohio statute on its face before the Court. That posture would make it difficult for the Court to resolve questions concerning possible preemption issues that might arise in the interpretation of the Ohio statute and its application to particular claims or types of claims. Petitioners' further argument (Pet. 26-27) that the Court's intervention is required to resolve more general "confusion in state courts regard ing FELA preemption" (Pet. 26) is without merit.

I. THE OHIO SUPREME COURT'S PREEMPTION RULING DOES NOT WARRANT THE COURT'S REVIEW

1. a. A cause of action under the FELA may be liti gated either in federal or state court. Second Employ ers' Liab. Cases, 223 U.S. 1, 55-56 (1912); 45 U.S.C. 56. "As a general matter, FELA cases adjudicated in state courts are subject to state procedural rules, but the sub stantive law governing them is federal." St. Louis Sw. Ry. v. Dickerson, 470 U.S. 409, 411 (1985) (per curiam).5 Even a state procedural rule may be preempted where it conflicts with, or undermines, a principle of federal law. See, e.g., Brown v. Western Ry., 338 U.S. 294, 296 (1949) (State "rules of practice and procedure" may not "dig into 'substantive rights.'").

b. This Court explained the fundamentals of pre emption in the context of the FELA in Dice v. Akron, Canton & Youngstown Railroad, 342 U.S. 359 (1952). In Dice, the Court held that the validity of a release of FELA liability signed by a railroad fireman was gov erned by federal law. This Court noted that in the FELA, Congress granted railroad employees "a right to recover against [their] employer for damages negli gently inflicted" and that state laws could not be "con trolling in determining what the incidents of this federal right shall be," including "what defenses could and could not be properly interposed to suits under the Act." Id. at 361. Dice also emphasized that "only if federal law controls can the federal Act be given that uniform appli cation throughout the country essential to effectuate its purposes." Ibid.; see Brown, 338 U.S. at 299 (holding that Georgia state court's restrictive construction of a FELA complaint was not binding on review because, inter alia, "over-exacting local requirements for meticu lous pleadings" would prevent achievement of a "desir able uniformity in adjudication of federally created rights").

In two non-FELA cases, this Court has more re cently addressed the circumstances in which state pro cedures must yield when a federal cause of action is brought in state court. Felder v. Casey, 487 U.S. 131 (1988), involved a civil-rights action brought against Milwaukee police officers under 42 U.S.C. 1983 in state court. A Wisconsin statute required a plaintiff suing a state or local officer to notify the government of the sub stance and amount of the contemplated claim within 120 days of the alleged injury and permit the government the opportunity to settle the claim before it was filed. Felder, 487 U.S. at 136-137. The Court concluded that the notice-of-claim statute "conflict[ed] in both its pur pose and effects with the remedial objectives of § 1983," and therefore was preempted. Id. at 138. The purpose of the state statute was to "minimize governmental lia bility," a goal that was "manifestly inconsistent with the purpose[] of the federal statute," i.e., to "provide com pensatory relief to those deprived of their federal rights by state actors." Id. at 141. The Court also found that the Wisconsin statute would "frequently and predictably produce different outcomes in federal civil rights litiga tion based solely on whether that litigation takes place in state or federal court." Ibid. In addition, the Court found "no reason to suppose that Congress * * * con templated that those who sought to vindicate their fed eral rights in state courts could be required to seek re dress in the first instance from the very state officials whose hostility to those rights precipitated their inju ries." Id. at 147.

Johnson v. Fankell, 520 U.S. 911 (1997), also in volved an action brought in state court under 42 U.S.C. 1983. Distinguishing Felder, the Court held that the Supremacy Clause did not require preemption of an Idaho rule that barred interlocutory appeal of the trial court's denial of a motion to dismiss the complaint on qualified immunity grounds. Johnson, 520 U.S. at 913. Even though interlocutory appeal would be available in federal court, the "normal presumption against pre- emption [was] buttressed by" the fact that Idaho's interlocutory-appeal rule was a "neutral state Rule re garding the administration of the state courts." Id. at 918. And, unlike the notice-of-claim statute in Felder that required dismissal of the underlying action for non compliance with its provisions, application of the Idaho rule was not "outcome determinative," i.e., it would not affect "the ultimate disposition of the case" to the detri ment of federal interests because the defendants' quali fied immunity arguments could be addressed on appeal from a final judgment. Id. at 920-921.

2. Under the foregoing principles, petitioners have not demonstrated that the Supremacy Clause neces sarily precludes application of Ohio's general medical screening provisions for asbestos claims to causes of action under the FELA. There is no inherent inconsis tency between those provisions and the FELA, and peti tioners' argument that the provisions impose evidentiary standards that exceed substantive liability standards under the FELA is not established on the present re cord.

a. In Metro-North Commuter Railroad v. Buckley, 521 U.S. 424, 427 (1997), this Court held that a railroad worker who alleges that he was negligently exposed to asbestos cannot recover damages under the FELA "un less, and until, he manifests symptoms of a disease." Applying the "physical impact" standard for FELA "in jury" announced in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994), the Court explained that "the words 'physical impact' * * * do not include a contact that amounts to no more than an exposure * * * to a sub stance that poses some future risk of disease." Buckley, 521 U.S. at 429-432. The Court recognized that compen sating those who feared asbestos-related illness, but who might never become sick, could divert resources from plaintiffs who had developed or would develop symptomatic asbestos-related disease: "In a world of limited resources," the Court asked, "would a rule per mitting immediate large-scale recoveries for widespread emotional distress caused by fear of future disease di minish the likelihood of recovery by those who later suf fer from the disease?" Id. at 435-436 (citing, inter alia, Worst Should Go First, supra).

In Norfolk & Western Railway v. Ayers, 538 U.S. 135 (2003), the Court reaffirmed that asbestos-related "in jury" cognizable under the FELA must rise to the level of an asbestos-related disease. The Ayers plaintiffs suf fered from asbestosis. Id. at 140. Noting that, "of those exposed to asbestos, only a fraction will develop asbesto sis," id. at 157 (citation omitted), the Court held that the plaintiffs' asbestos-related disease also allowed them to recover "parasitic" damages under the FELA for the emotional distress attributable to the fear of developing another disease-cancer-in the future, id. at 148. The Court reasoned that asbestosis, a "chronic, painful and concrete reminder" of the plaintiffs' injurious asbestos exposure, was a "bodily harm" that made the asbestos defendants liable under the FELA for related pain-and- suffering damages, including compensation for a height ened risk of contracting cancer. Id. at 155 (quoting Eagle Picher Indus., Inc. v. Cox, 481 So. 2d 517, 529 (Fla. Dist. Ct. App. 1986)); id. at 154 (quoting Restate ment (Second) of Torts, § 456, at 494 (1965)). The Court also reiterated, however, that the FELA provides no right to relief for disease-free "asymptomatic plaintiffs," including those who experience asbestos-related physio logical changes (such as pleural plaque or pleural thick ening) that do not constitute asbestos-related disease. Id. at 156 (citing James A. Henderson, Jr., & Aaron D. Twerski, Asbestos Litigation Gone Mad: Exposure- Based Recovery for Increased Risk, Mental Distress, and Medical Monitoring, 53 S.C. L. Rev. 815, 830 (2002)).

b. Symptomatic asbestos-related disease thus is an essential element of a cause of action under the FELA, which the plaintiff must establish by the common law preponderance of the evidence standard. See Norfolk S. Ry. v. Sorrell, 549 U.S. 158, 165-166 (2007) ("Absent express language to the contrary, the elements of a FELA claim are determined by reference to the com mon law."). There is no inherent inconsistency between the FELA and the provisions of the Ohio statute at issue here, because the Ohio statute serves to identify-and expedite-those cases in which the plaintiff has obtained the basic medical evidence required to establish asbes tos-related injury, a prerequisite to asbestos-related FELA liability. The evidentiary submissions that peti tioners claim are unfairly required of them (Pet. 7) merely reflect the fact that, unlike some "injuries" that are observable and easily diagnosed, the standard medi cal protocol for identifying asbestos-related disease is more complex.

"[T]he diagnosis of asbestos-related pleural disease, and particularly asbestosis, requires assessment of a number of factors including the review of chest x-rays, pulmonary function tests, latency, and the taking of a complete occupational, exposure, medical and smoking history." ABA Report 12. These tests and patient histo ries are necessary "to enable a physician to exclude other more probable causes," because "many symptoms and findings are not specific to asbestos-related disease" and may result from smoking or other non-asbestos- related environmental factors. Ibid. The diagnostic tests specified in the Ohio statute are standard mea sures for distinguishing asbestos-related diseases from other ailments. For instance, pulmonary function tests, see Ohio Rev. Code Ann. § 2307.92(B)(3)(a) and (b) (LexisNexis 2005), distinguish "restrictive lung disease, which can be caused by asbestos, from obstructive lung disease, which is normally associated with smoking and is not associated with asbestos exposure." ABA Report 15. In addition, a positive chest x-ray reading by a certified reader, see Ohio Rev. Code Ann. § 2307.92(B)(3)(b)(i)(III) and (ii) (LexisNexis 2005), "is almost always viewed as a necessary component of the diagnosis of asbestosis." ABA Report 13.

The Ohio statute also appears to set low minimum requirements for showing physical impairment, which reinforces the conclusion that the statute seeks to defer adjudication of only those claims that were brought pre maturely-i.e., before asbestos-related injury is evident. For example, lung irregularities revealed by x-ray that are graded at a borderline 1/0 on the "ILO scale" can satisfy Ohio's prima facie standard. Ohio Rev. Code Ann. § 2307.92(B)(3)(b)(ii) (LexisNexis 2005).6 And the statute specifies a latency period of only ten years as a diagnostic marker for asbestos-related lung cancer in smokers. Id. § 2307.92(C)(1)(b). By comparison, the ABA Commission on Asbestos Litigation-which worked with "a group of ten of the nation's most prominent phy sicians in the area of pulmonary function" to design a set of standards for asbestos-related impairments that would not "unfairly exclude any significant number of deserving claims," ABA Report 11, 13-recommended that a minimum 15-year latency period between expo sure and the onset of non-malignant disease be required. Id. at 12.

c. Petitioners also assert that preemption of the Ohio statute is required because the statute "imposes a different, stricter causation standard" than the FELA itself imposes. Pet. 15. Petitioners focus on the require ment in the Ohio statute that a plaintiff make a prima facie showing that "'exposure to asbestos' is 'a substan tial contributing factor to the medical condition'" al leged in the lawsuit. Ibid. (quoting Ohio Rev. Code Ann. § 2307.92(B) (LexisNexis 2005)). Petitioners claim that the "substantial contributing factor" standard is in ten sion with the "relaxed standard of causation" that ap plies under the FELA. Pet. 14 (quoting Gottshall, 512 U.S. at 543). For several reasons, that contention does not warrant the Court's review.

First, the Ohio Supreme Court did not interpret the phrase in the Ohio statute on which petitioners rely, "substantial contributing factor." The Ohio court thus did not attempt to compare the nexus between past as bestos exposure and a current injury required under the "substantial contributing factor" standard to any equiva lent nexus that would be required to establish asbestos- related injury under the FELA in federal court. To the extent that the court suggested how it would interpret the Ohio statute in future cases, the clear implication of the court's opinion is that the Ohio statute would not be interpreted to impose evidentiary burdens that exceed FELA standards: the court wrote that in FELA cases the Ohio statute does not "make it more difficult for a claimant to succeed on the merits of a claim." Pet. App. 8a.

This Court has previously declined review of a state court judgment where "significant ambiguities in the record" obscured the framing of the constitutional issues presented for review. See Minnick v. California Dep't of Corr., 452 U.S. 105, 127 (1981). The same result is appropriate here. Any review of the preemption impli cations of Ohio's "substantial contributing factor" stan dard should await a future case in which there is a record of medical evidence proffered by a FELA plain tiff and an application of the "substantial contributing factor" standard in evaluating that evidence. This case, which arises in an abstract declaratory judgment pos ture, provides neither component essential to meaning ful review by this Court.

Second, petitioners' arguments for further review fail to focus on the distinct nature of the injury in as bestos tort suits-the requirement, announced by this Court in Buckley and confirmed in Ayers, that a plaintiff must suffer from a symptomatic asbestos-related dis ease in order to recover on an asbestos claim under the FELA. As petitioners note (Pet. 15 n.6), the standard for legal causation under the FELA is unsettled. See Sorrell, 549 U.S. at 163-164 (declining to address whether Rogers v. Missouri Pacific Railroad, 352 U.S. 500 (1957), altered the common-law rule of proximate causation in FELA cases); id. at 172-177 (Souter, J., concurring) (opining that Rogers did not "water down the common law requirement of proximate cause"); id. at 177-182 (Ginsburg, J., concurring in the judgment) (opining that "the causation standard in FELA actions is more 'relaxed' than in tort litigation generally"). Res olution of that uncertainty is not necessary in evaluating Ohio's statutory medical criteria in the posture of this case. Those statutory provisions address the medical questions whether the plaintiff has a disease at all and whether it was caused by asbestos, and they do not ad dress whose asbestos caused the disease or to what ex tent.7 The Ohio statute identifies an alleged injury as an asbestos-related impairment.8

Third, petitioners are mistaken in contending (Pet. 12-14), that the Ohio Supreme Court's decision conflicts with Felder. In Felder, the Court found a "manifest[] inconsisten[cy]" between the purpose of the Wisconsin notice-of-claim statute (i.e., to minimize governmental liability in civil rights actions by giving government de fendants the advantages of early investigation and the opportunity for early settlement) and the purpose of the federal civil rights statute (i.e., to provide compensatory relief to those deprived of civil rights by state actors). Felder, 487 U.S. at 141-153. Petitioners assert that this case presents a policy clash akin to that in Felder be cause the aim of Ohio's statute, "like the statute in Felder, is to reduce the number of successful claims, thereby reducing total liability." Pet. 13; see Pet. 6. Pe titioner's premise, however, runs counter to the determi nation by Ohio's highest court that the statute's purpose is not to reduce overall liability, but instead is to "place those already ill at the head of the line for compensa tion." Sinnott v. Aqua-Chem, Inc., 876 N.E.2d 1217, 1221 (Ohio 2007). Moreover, petitioners' view that the FELA's singular goal is "to afford broad recovery to FELA claimants" (Reply Br. 6) also is oversimplified. As this Court has recognized, although the FELA "was indeed enacted to benefit railroad employees, * * * [i]t does not follow * * * that this remedial purpose re quires" that the statute invariably be interpreted "in favor of employees." Sorrell, 549 U.S. at 171. See Gottshall, 512 U.S. at 543 ("That FELA is to be liberally construed * * * does not mean that it is a workers' compensation statute."). This Court has made clear that, in the context of allegedly negligent workplace ex posure to asbestos, the FELA offers no relief to railroad workers in the absence of "injury" in the form of a cur rent asbestos-related disease. Buckley, 521 U.S. at 433. As discussed above, so far as the Ohio statute on its face and the current record reveal, the purpose and effect of the Ohio statute is consistent with those of the FELA, in that it identifies and expedites cases in which asbestos- related disease is present. Felder therefore does not call for preemption here.

3. The Ohio statutory scheme attempts to tackle widely-recognized core problems in asbestos litigation- that suits by plaintiffs who have been exposed to asbes tos but who manifest no asbestos-related disease out number suits by symptomatic plaintiffs, and that the funds to pay all asbestos claimants are finite and dwin dling. A case prioritization system based on specified medical criteria, such as the one enacted in Ohio, has been recommended as a sensible approach by some com mentators. See, e.g., Worst Should Go First, supra. And, as the Ohio Supreme Court noted (Pet. App. 14a), the federal district court handling multi-district litiga tion of asbestos-related cases has instituted a similar method for prioritizing the cases on its docket so as to "protect the rights of all of the parties, yet preserve and maintain any funds available for compensation to vic tims." In re Asbestos Prods. Liab. Litig., No. MDL 875, 2002 WL 32151574, at *1 (E.D. Pa. Jan. 16, 2002).

Regardless of whether this Court's review of case- prioritization schemes such as Ohio's could be warranted in the future (for example, if it turned out that such schemes were being applied to preclude or unduly limit FELA recovery for asbestos-related claims in state courts), review of such questions would be unfruitful in the posture of this case, where the Ohio courts have had no opportunity to interpret and apply their statute in the context of concrete facts.

II. PETITIONERS IDENTIFY NO CONFUSION AMONG STATE COURTS REGARDING FELA PREEMPTION THAT WARRANTS THE COURT'S INTERVENTION

Petitioners' further contention that the Court should grant review to address general "confusion in state courts regarding FELA preemption" (Pet. 26-33) also is without merit. Even if such "confusion" existed, this case would be a poor vehicle for addressing it. As al ready discussed, the record here is inadequate to mean ingfully evaluate FELA preemption in the particular context of the Ohio statute's medical screening provi sions.

Moreover, petitioners' suggestion that a "line of state courts" has erroneously held that "a conclusion that a rule is procedural is the beginning and the end of the inquiry as to whether a rule may be applied to FELA claims" (Pet. 27) does not withstand scrutiny. The court in Allen v. National Railroad Passenger Corp., 934 So. 2d 1006, 1013-1016 (Miss. 2006), expressly declined to rule upon questions regarding the FELA, because the only question before it was whether dismissal of plain tiff's action as a sanction for willful discovery violations was an abuse of discretion. The Montana Supreme Court in Rule v. Burlington Northern & Santa Fe Rail way, 106 P.3d 533 (2005), relied upon direct authority from this Court when it observed that its state venue statute was procedural and not preempted by the FELA. Id. at 536 (citing Miles v. Illinois Cent. R.R., 315 U.S. 698, 703 (1942)). And the Alabama Supreme Court in Alabama Great Southern Railroad v. Jackson, 587 So. 2d 959 (1991), cert. dismissed, 502 U.S. 1083 (1992), simply applied state law after correctly stating that "[a]s a general matter, FELA cases adjudicated in a state court are subject to the state's procedural rules" while "the substantive law governing such cases is fed eral." Id. at 962.

Nor is there a basis for petitioners' contention that FELA preemption decisions out of Kansas and Illinois lack "reasoned or meaningful analysis." Pet. 28. In Gaulden v. Burlington Northern, Inc., 654 P.2d 383 (1982), after noting that the FELA "does not provide a vehicle for the determination of the fault of a third party," the Kansas Supreme Court reasoned that the FELA's objectives would not be undermined by state rules authorizing suits by FELA defendants for contri bution from third parties, "so long as [contribution] is not utilized to reduce the recovery of damages to which the employee is entitled under FELA." Id. at 389. Simi larly, the Illinois Supreme Court found no impairment of the FELA right to trial by jury in Castro v. Chicago, Rock Island & Pacific Railroad, 415 N.E.2d 365 (1980), cert. denied, 452 U.S. 941 (1981), where the state proce dural rule in question did not apply if a timely jury demand was filed, and the rule thus "protect[ed] [FELA plaintiffs'] right to trial by jury." Id. at 367. Both state supreme courts articulated reasons for their holdings, and petitioners demonstrate no error in that reasoning.

Petitioners also contend that there is a "substantial[] conflict[]" (Pet. 30) between the Ohio Supreme Court's opinion and the Georgia Supreme Court's decision in DaimlerChrysler Corp. v. Ferrante, 637 S.E.2d 659 (2006). That is incorrect. The court in Ferrante evalu ated whether a Georgia statute-which required a prima facie showing in asbestos cases similar to that required by the Ohio statute-could be applied retrospectively to pending cases under Georgia law. The court ruled that the new statute could not be applied retrospectively be cause the standard it contained ("prima facie evidence that asbestos was a substantial contributing factor to [the plaintiff's] medical condition") exceeded the stan dard that previously applied under Georgia law ("a plaintiff was required to show only that exposure to as bestos was a contributing factor in his or her medical condition"). Id. at 661. The court held that the new statute "impose[d] upon appellees a greater evidentiary burden than was required under the law in effect at the time their actions were filed," "affect[ed] appellees' sub stantive rights," and could not, as a matter of Georgia law, be applied retroactively. Ibid.

Ferrante has little relevance to this case. First, Fer rante did not involve the FELA or preemption princi ples. The Georgia Supreme Court instead considered whether its statute was "substantive" under the stan dards generally used to establish the liability of joint tortfeasors. Moreover, unlike the Georgia court, the Ohio Supreme Court has not opined on the meaning of its "substantial contributing factor" standard, other than to suggest that it is no more demanding than the good faith pleading standard contained in Ohio Rule of Civil Procedure 11. Finally, the Georgia statute does not contain protections (such as the tolling of the statute of limitations) that apply in Ohio and serve to protect the right to recovery under the FELA. Thus, nothing about Ferrante warrants review in this case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

GREGORY G. GARRE
Solicitor General
GREGORY G. KATSAS
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
LISA H. SCHERTLER
Assistant to the Solicitor
General
THOMAS M. BONDY
ANNE MURPHY
Attorneys

 

DECEMBER 2008

 

1 The ABA Report is available at http://www.abanet.org/leadership/ full_report.pdf.

2 The legislature cited a study that found that 94% of the 52,900 as bestos claims filed in Ohio state court in 2000 "concerned claimants who are not sick." H. 292 § 3(A)(5), 2003-2004 Ohio Laws 3990.

3 Petitioner Wiles also sued in his capacity as executor of the Estate of Larry Arnold Wiles. The FELA provides that "[e]very common car rier by railroad while engaging in [interstate] commerce * * * shall be liable in damages to any person suffering injury while he is em ployed by such carrier in such commerce * * * for such injury or death resulting in whole or in part from the negligence" of the carrier or its agents. 45 U.S.C. 51.

4 Two judges dissented and found that the Ohio statute would infringe on the plaintiffs' "substantive rights to assert a cause of action under federal law in a state court." Pet. App. 16a (quoting id. at 29a).

5 This Court, however, long ago acknowledged "the impossibility of laying down a precise rule to distinguish 'substance' from 'procedure'" in this context. Brown v. Western Ry., 338 U.S. 294, 296 (1949).

6 The ILO scale was created by the International Labour Organiza tion as a means for standardizing the classification of dust-related changes on chest x-rays. ABA Report 13. A grade of 1/0 "indicates that the reader found evidence of lung irregularities-the '1'-but also considered whether the x-ray should be read as normal, or '0.'" Ibid.

7 A separate provision of the Ohio statute governing the burden of proof at trial requires asbestos plaintiffs to "prove that the conduct of [each] particular defendant was a substantial factor in causing the injury or loss on which the cause of action is based." Ohio Rev. Code Ann. § 2307.96(A) (LexisNexis 2005). That provision is not at issue here. Nor does this case implicate the Ohio provision that bars the award of damages for a plaintiff's fear or risk of developing cancer in the future. Id. § 2307.94(B) (discussed at Pet. 14 n. 5); see Ayers, 538 U.S. at 157-159 (permitting FELA plaintiffs who suffer from asbestosis to recover damages for fear of cancer).

8 The record in this case likewise does not establish that the pro visions of the Ohio statute requiring reliable evidence of asbestos- related injury (for instance, a diagnosis by a "competent medical authority") interfere with substantive federal rights. Indeed, federal law also dictates meaningful criteria of reliability for claims involving medical questions. See, e.g., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993) (Federal Rules of Evidence require "any and all scientific testimony or evidence" to be "not only relevant, but reliable.").