Unique defense of medical monitoring case leads to case dismissal

Our railroad client was sued in state court under the Federal Employers Liability Act (FELA) for medical-monitoring damages in a supposed class action case brought for all present and past employees who were exposed negligently to deleterious airborne substances at work but who had not yet developed any disease. Railroad employees are compensated for work-related injuries under the FELA instead of state workers’ compensation systems. A FELA case is treated like any other civil lawsuit, with extensive discovery and trial to a jury.

Although the federal removal statute specifically says that FELA cases cannot be removed from state court to federal court, we filed a petition for removal anyway, on the grounds that the case could not be a FELA case since an essential element of a FELA case is “injury” and the plaintiffs alleged that they were only exposed, but had no injury. In other words, just because plaintiffs said the case was a non-removable FELA case did not necessarily make it one. We then moved to dismiss the case on the grounds that the FELA occupied the field for claims about workplace negligence, but since it required the existence of an injury and the plaintiffs affirmatively alleged that they had none, they had failed to state a claim. The judge agreed, refused to remand the case to state court, and dismissed the case for failure to state a claim.

Plaintiffs’ counsel filed a Notice of Appeal to the Fourth Circuit Court of Appeals, then abandoned it.