WISNIEWSKI, Susan and Klock, Debra Wisniewski, Appellants,
v.
JOHNS-MANVILLE CORP., Johns-Manville Sales Corporation,
Raybestos-Manhattan, Inc., Owens-Illinois, Inc.,
Celotex Corporation, Keene Corporation,
Unarco Industries, Inc.
v.
EAGLE-PICHER INDUSTRIES, INC., Owens-Corning Fiberglas Corporation.
Janet M. RICE, as parent and natural guardian of Valerie D.
Rice and Thomas W. Rice, Janet M. Rice, in her own
right and Paul A. Rice, Appellants,
v.
JOHNS-MANVILLE CORP., Johns-Manville Sales Corporation,
Raybestos-Manhattan, Inc., Owens-Corning Fiberglas Corp.,
Owens-Illinois, Inc., Celotex Corporation, Eagle-Picher
Industries, Inc., Amatex Corporation, Unarco Industries,
Inc., Fibreboard Corporation, Southern Textile Corp., H.K.
Porter Co., Inc., Porter Hayden Co., Abex Corporation,
Maremont Corporation, Lear Siegler, Inc., Bendix
Corporation, J.P. Stevens, Inc., Uniroyal, Inc., Union
Carbide Corporation, Georgia-Pacific Corporation, General
Motors Corporation.
Nos. 82-1045, 82-1046.
United States Court of Appeals,
Third Circuit.
Submitted Under Third Circuit Rule 12(6),
March 29, 1985.
Decided April 11, 1985.
Norman Perlberger, Mitchell S. Cohen, James R. Kahn, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for appellants.
Michael J. Plevyak, Andrew J. Trevelise, Malcolm & Riley, West Chester, Pa., for appellee, Celotex Corp.
Robert S. Forster, Jr., Krusen, Evans & Byrne, Philadelphia, Pa., for appellee, Owens-Corning Fiberglas Corp.
Barbara Pennell, Joseph R. Thompson, Philadelphia, Pa., for appellee, Eagle-Picher, Industries, Inc.
Oliver C. Biddle, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for appellee, Raybestos-Manhattan, Inc.
James A. Young, Daniel J. Zucker, Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, Pa., for appellee, Owens-Illinois, Inc.
Howard M. Girsh, Steinberg & Girsh, Philadelphia, Pa., for appellee, Union Carbide Corp.
Clayton H. Thomas, Jr., Philadelphia, Pa., for appellee, Abex Corp.
Joseph H. Foster, White & Williams, Philadelphia, Pa., for appellee, Southern Textile Corp.
Dudley Hughes, Detweiler, Hughes & Kokonos, Philadelphia, Pa., for appellee, Unarco Industries, Inc.
Walter S. Jenkins, McWilliams & Sweeney, Philadelphia, Pa., for appellee, Maremont Corp.
Audrey J. Becker, David E. Prewitt, Philadelphia, Pa., for appellee, Porter Hayden Co.
Perry S. Bechtle, LaBrum & Doak, Philadelphia, Pa., for appellee, Keene Corp.
Charles W. Craven, Jo Fineman White, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., for appellees, Johns-Manville Corp. and Johns-Manville Sales Corp.
Alan Klein, Drinker, Biddle & Reath, Philadelphia, Pa., for appellees, Uniroyal, Inc. and Georgia-Pacific Corp.
Edward R. Paul, Nilon, Paul & Mardinly, Media, Pa., for appellee, Lear Siegler, Inc.
George J. Lavin, Jr., Liebert, Short, FitzPatrick & Lavin, Philadelphia, Pa., for appellee, General Motors Corp.
G. Wayne Renneisen, George A. Amacker, Harvey, Pennington, Herting & Renneisen, Ltd., Philadelphia, Pa., for appellee, Bendix Corp.
Before ALDISERT, Chief Judge, GIBBONS and WEIS, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Chief Judge.
This diversity case requires us to predict what the Supreme Court of Pennsylvania would decide if faced with claims brought by relatives of asbestos workers for negligent infliction and intentional infliction of emotional distress caused by the illness and subsequent deaths of the workers. The district court held that, under Pennsylvania law, appellants failed to statе a claim upon which relief could be granted, and dismissed the claims pursuant to F.R.Civ.P. 12(b)(6). We affirm as to the negligent infliction cause of action, but reverse as to the intentional infliction claim.
I.
Appellants are the wife and children of men who have died from exposure to asbestos. They brought suit against Johns-Manville and other manufacturers and vendors of asbestos products, based on a variety of theories, including products liability and infliction of emotional distress. The only issues presented in this appeal are those involving the еmotional distress claims.
In the pleadings, appellants raised claims based on both negligent and intentional infliction of emotional distress. They alleged that their fear of contracting cancer due to household exposure to asbestos contained on their husband's/fathers' work clothes and tools caused identifiable physical symptoms, such as headaches. No symptoms, however, arose directly from their exposure to the asbestos itself. The district court dismissed the emotional distress claims and this appeal followed.
II.
Appellants contend that they may recover for negligent infliction of emotional distress either because asbestos fibers have impacted on their lungs or because they fall within the "zone of danger" of such an impact. Relying on an intentional infliction of emotional distress theory, appellants also maintain that they can recover damages resulting from the fear of future illness.
Our standard of review for Rule 12(b)(6) dismissals was stated in Bogosian v. Gulf Oil Corp.,
The standard by which the orders must be tested is whether taking the allegations of the complaint as true, ... and viewing them liberally giving plaintiffs the benefit of all inferences which fairly may be drawn therefrom, ... "it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief."
III.
At the outset, we must make several points. In diversity cases, because a federal court must apply the substantive law of the state in which it sits, Erie Railroad v. Tompkins,
Moreover, we are very conscious of the specific context in which we decide this case. Litigation stemming from the manufacture and distribution of asbestos, a known carcinogen, has reached crisis proportions. State and federal court dockets are swollen with these cases. Major corporations are threatened with, or already have declared, bankruptcy as a result of this litigation. See In re Amatex Corp.,
Finally, we note that it is the procedural posture of this appeal that controls our decision. Under the federal notice pleading rules, the threshold for stating a cause of action to survive a Rule 12(6) motion is very low. Unlike an appeal from a grant of summary judgment, we do not decide this case on the basis of supporting factual affidavits, depositions, or doсuments, but only on the naked averments of a complaint filed under the notice pleading tradition. With these precepts in mind, we now turn to the merits of the question presented.
IV.
Settled Pennsylvania law clearly disposes of the negligent infliction of emotional distress claim. In Cathcart v. Keene Industrial Insulation,
V.
Current Pennsylvania law, however, does not clearly state whether appellants should be allowed to proceed with their intentional infliction claim. The Supreme Court of Pennsylvania has held that a claim based on intentional infliction of emotional distress presents a valid cause of action. Papieves v. Lawrence,
Yet we are aware that Pennsylvania courts have permitted claims in situations somewhat removed from the gruesome context of Papieves. Two cases, for example, relate to the special landlord-tenant relationship, Fаir v. Negley,
B.
As to basing the claim on fear of future injury alone, Pennsylvania case law is silent. In settling this question in a negligent infliction claim in Cathcart,
VI.
On the present posture of the proceedings (a Rule 12(b)(6) dismissal), we believe that the preferable course is to allow this case to proceed, at least, to the summary judgment stage. At that stage, the court will require the parties, especially the plaintiffs, to develop the factual basis for their pleadings. The court then will be in a position to relate thе facts to the uncertain perimeters of Pennsylvania state law, and make its prediction based upon those factual underpinnings.
We do not suggest that the task of the district court will be easy, because the controlling legal precept is expressed in the most abstract of terms: "intentional, outrageous or wanton conduct which is peculiarly calculated to cause ... serious mental or emotional distress." Papieves,
We recognize that any extension of legal liability to acts which cause emotional distress is not without its problems. We also recognize that thе law cannot serve to guarantee all men's peace of mind: as the late Judge Magruder remarked, "Against a large part of the frictions and irritations and clashing of temperaments incident to participation in a community life, a certain toughening of the mental hide is a better protection than the law could ever be." [Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv.L.Rev. 1033, 1035 (1936).]
Id.
Appellants argue that they have made the appropriate averments in their complaints to bring this case within the ambit оf Papieves or the Restatement (Second) of Torts Sec. 46.1 Incredibly, appellants have not included in the appendix filed with this court the text of the complaint upon which this Rule 12(b)(6) motion must stand or fall. They do include, however, "Plaintiffs' Memorandum in Opposition to Motion to Dismiss of Defendant Raybestos-Manhattan, Inc." App. at 23a. Therein, they rely on the portions of their complaint set forth in the margin.2 Specifically, they argue that support for paragraphs 38 and 40 of the complaint can be found in Sec. 46 of the Restatement (Second) of Torts. App. at 34a. Denied the appropriate assistance of counsel in adjudicating this case, due to their failure to observe either the federal rules or this court's internal rules pertaining to appendices, we have examined sua sponte the complaint filed in the district court and have learned that at least in paragraphs 6(c), 13, 18, and 22, plaintiffs made averments of "wilfully", "wantonly", "wanton disregard", and "intentionally" in regard to appellees' conduct. Applying the teachings of Bogosian,
Moreover, such facts must rise to meet an extremely important threshold: "[T]he gravamen of this tort [of intentional infliction of emotional distress] is that the conduct complained of must be of an extreme or outrageous tyрe." Jones v. Nissenbaum, Rudolph & Seidner,
When apprised of the specific facts, the district court then must analogize from certain given or assumed resemblances to the cause of actiоn already existing in state law to an inferred resemblance stated in the complaint. Deprived of an established general rule (legal principle) in an area of developing law, an area described by the Supreme Court of Pennsylvania as "not without its problems," Papieves,
VII.
Conceding that the intentional infliction claim is extremely close, we will reverse the judgment of the district court on the intentional infliction ruling, but affirm on the negligent infliction ruling.
WEIS, Circuit Judge, dissenting.
As the majority recognizes, the tort of intentional infliction of emotional distress is still in its infancy. Deliberate development in the common law tradition is amply justified in formulating the duty, breach, and recovery conсepts in this ill-defined area. Although the "flood gates" and "parade of horribles" arguments are of little weight in most circumstances, I believe that the present case is one where those fears are justified.
The majority and I are in agreement on the crisis proportions of the asbestos litigation. The courts are inundated with these cases and many more are certain to follow.1 The individual resolution of these thousands and thousands of claims, through submission to juries and courts that may not consider the problem as a whole, has and will continue to result in unequal and unfair distribution of available funds. Some deserving claimants do not receive enough; others less seriously affected receive too much. Given the present state of affairs, it is not unrealistic to expect that some deserving claimants will be unable to collect anything at all on their judgments. See Jackson v. Johns-Manville Sales Corp.,
The unevenness of recovery is a characteristic of the common law tort system, a factor which we are not empowered to change in this сase. That a crisis exists does not authorize us to alter existing state law theories of liability. See Jackson v. Johns-Manville Sales Corp.,
We are asked to predict the future course of an uncharted area of Pennsylvania law and are to do so against the background of the asbestos scene. Even if it be assumed that in the abstract there is merit to enlarging the tort theory plaintiffs press here, the argument founders when resources appear inadequate even to compensate in circumstances wherе well accepted duty concepts have been violated.
The climate for expansion is not propitious, and I believe the appellate courts of Pennsylvania will be wary in approaching the question thrust upon us in this case. Indeed, in Cathcart v. Keene Industrial Insulation,
It is noteworthy that in the case at hand the plaintiffs' efforts in the district court and initially on appeal were directed mainly toward the negligent infliction claim. While this appeal was pending, the Superior Court decided Cathcart. Conceding its applicability, plaintiffs were left with the intentional infliction count which apparently was more of an afterthought than a serious contention in the district court.
The Pennsylvania courts have sanctioned liability for intentional infliction of emotional distress in some situations. In Fair v. Negley,
The Pennsylvania Supreme Court's case of Papieves v. Lawrence,
The Pennsylvania courts have cited Sec. 46 of the Restаtement and its requirement that the defendant's conduct be "outrageous and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Bartanus v. Lis, 332 Pa.Super. at ---,
In judging whether the defendants' conduct here has been outrageous, it is necessary to compare it with activity held to state a cause of action in the reported Pennsylvania cases.
As noted earlier, there is no special relationship between plaintiffs and defendants, as was true in the landlord-tenant cases. These plaintiffs were relatives of deceased employees of the concerns which had purchasеd asbestos from defendants. Plaintiffs are thus three steps removed from any relationship with the manufacturers. Moreover, defendants sold their products to companies that could be expected to provide for employee safety in using the substance for various applications.
By no construction of the complaint could defendants be alleged to have intended the infliction of emotional harm on these plaintiffs. They were total strangers. There had never been contact between the parties or any occasion which could serve to inspire action against the plaintiffs by defendants.
It is significant too that there was some social utility to the defendants' activity in manufacturing a product having outstanding insulation and fire-retardant properties. The fact that asbestos is conceded as dangerous to the health of those who inhale its fibers cannot obscure the product's effectiveness in reducing the hazard of fire. As one example, it was this characteristic which led to its use in ships built during World War II when the threat оf fire after a torpedoing was a matter of serious concern. Such circumstances must be contrasted with the indefensible conduct of the defendants in the Papieves case.
Thus, in this case there was no relationship between the parties, and the defendants' actions were not intentionally directed toward the plaintiffs. Viewed against the facts at hand, the defendants' conduct does not rise to the level of outrageousness required under Pennsylvania law.
Our task in predicting what the appellate courts of Pennsylvania would do if this case were brought to them is not an easy one. I am not persuaded, however, that they would find that plaintiffs have stated a cause of action. A fair reading of Pennsylvania law is that recovery for intentional infliction of emotional distress may be permitted where the injury results immediately and directly from specific conduct, directed to specific plaintiffs. Plaintiffs here have not presented such a case even under the relaxed standard of review applicable to a 12(b)(6) motion.
If plaintiffs аre held to have stated a claim, one wonders what principled limitations can be placed on this theory of recovery. May persons who live in a neighborhood in the vicinity of a shipyard or railroad repair yard maintain a cause of action because of fear that the wind may have blown particles of asbestos into their homes. May parents who fear that their children have inhaled asbestos in a school room where that substance was used in construction recover for intentional infliction оf emotional distress.2 Similarly, may a motorist recover because of emotional distress brought on by fear of contracting cancer as a result of driving a vehicle equipped with asbestos brakelinings, I fail to see any reasoned distinction between those scenarios and the case stated by plaintiffs.
Courts cannot avoid the necessity of putting an end to liability, of staking out the stopping point. In his ruminations on the theory of causation, Professor Prosser wrote that, "It is still unthinkable that anyone shall be liable to the end of time fоr all the results that follow in endless sequence from his single act." Prosser, Palsgraf Revisited, 52 MICH.L.REV. 1, 24 (1953). He does not come to a firm conclusion on how best to respond to the question in a negligence context, but I think the title the Restatement authors have given to Sec. 46 is helpful to resolution of the problem here.
"Intentional infliction of emotional distress" suggests to me that relief is to be permitted when the intent and injury are direct. The objectionable conduct is more like the rifle shot than the shotgun blast--akin to the initial splash in the pond, rathеr than the ripples. Like most analogies these are faulty and invite distraction from the issue, but I believe they capture the spirit of Pennsylvania law in this area. Lines must be drawn at some point, whether arbitrary or not. I believe that the Pennsylvania Supreme Court would mark the line somewhere short of the plaintiffs' claim in this case.
I dissent.
Notes
Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.
The complaint states:
As a direct and proximate result of the aforesaid, plaintiffs were caused to suffer substantial anxiety, emotional depression, physical and mental distress
As a direct and proximate result of the aforesaid, plaintiffs have developed severe anxiety, hysteria or phobias, any or all of which may develop or has developed into a reasonable and traumatic fear of an increased risk of additional asbestos-caused and/or related disease, including, but not limited to, cancer to plaintiffs, resulting from exposure, directly and indirectly, to the asbestos products of defendants
As a different and proximate result of the aforesaid, plaintiffs, individually and jointly, have suffered and will continue to suffer permanent and on-going psychological damage which may require future psychological and/or medical treatments
App. at 24a, 31a.
As of March 1983, approximately 24,000 claimants had filed suits. Estimates of the number which will be filed in the next thirty years range from 32,000 to 200,000. Kakalik, Ebener, Felsteiner, Haggstrom & Shanley, Variation in Asbestos Litigation Compensation and Expenses 4 (Institute for Civil Justice, Rand Corp. (1984))
Congress has directed that friable asbestos be removed from school buildings. 20 U.S.C. Sec. 3601(a)(3)(6). It is estimated that at least 14,000 schools will be affected. See Jackson v. Johns-Manville Sales Corp.,