As I noted here last week, in Pennsylvania, the Supreme Court generally enforces the exclusive remedy with an iron first. There is, indeed, no intentional tort exception. Barber v. Pittsburgh Corning Corp., 555 A.2d 766 (Pa. 1989); Poyser v. Newman & Co., 522 A.2d 548 (Pa. 1987).
Yet, under the landmark case Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013), an employee may sue his or her employer for diseases which manifest themselves outside the law’s 300-week statute of repose. A remarkable exception to the exclusive remedy hence exists.
Aggressive plaintiffs in Philadelphia recently tested the limits of the exception. See Smith v. American Airlines, 2016 U.S. Dist. LEXIS 107402 (E.D. Pa. 2016)
There, fleet service agents alleged that they had been exposed to cancer hazards from long-term, unsatisfactory use of airplane lavatory cleaning chemicals. They brought a class action in federal court seeking damages in the nature of medical monitoring. The district court, however, held that such claims were barred by the exclusive remedy. The court, in this regard, refused to read – or expand – Tooey. Specifically, the court refused to allow claims for hazards that might cause delayed manifestation diseases more than 300 weeks after last exposure. The court dismissed the idea that Tooey should be so liberally interpreted, responding that “this argument is highly speculative and without legal support.”
The court added, meanwhile, that “costs for medical monitoring qualify as a claim” under the Pennsylvania Workers’ Compensation Act. (See Footnote 14). Thus, the exclusive remedy would in any event protect the employer from this type of civil claim. For this proposition, the court cited Brendley v. Pennsylvania Department of Labor & Industry, 926 A.2d 1276 (Pa. Commw. 2007); Fried v. Sungard Recovery Services, Inc., 900 F. Supp. 758 (E.D. Pa. 1995). On this point, see generally Torrey-Greenberg Treatise, § 4:10 (3rd ed. 2008).