This post was written by Peggy Sanner.
On May 1, 2008, in Lowe v. Philip Morris USA Inc., et al.1, the Oregon Supreme Court rejected a smoker’s bid to mount a medical monitoring class action against five cigarette manufacturers. The court concluded that the plaintiff’s admitted lack of any present physical injury doomed her negligence case.
A clear win for industry, Lowe’s unanimous decision represents the most recent in a series of high court cases refusing to recognize medical monitoring as an independent negligence cause of action where the plaintiff cannot show present injury.2 Indeed, the number of recent cases rejecting the cause of action has prompted some to identify a “clear trend” away from medical monitoring as an independent cause of action. E.g., Victor E. Schwartz, Leah Lorber & Emily Laird, “Medical Monitoring: The Right Way and the Wrong Way,” 70 Mo. L. Rev. 349 (2005) [hereinafter, “Schwartz, et al.”].
Arguments by those hoping for medical monitoring benefits, however, have persuaded some courts. E.g., Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712 (Mo. 2007) (medical monitoring claim did not require proof of present physical injury in children allegedly exposed to lead emissions). Even in Oregon, most medical monitoring issues remain unsettled. Plaintiffs allegedly exposed to harm—from asbestos, tobacco, toxics, pharmaceuticals, and devices—will surely rely on Associate Justice Walters’ concurrence in Lowe to try to reopen the door to medical monitoring relief.
The Plaintiff: No Present Physical Injury
Plaintiff Patricia Lowe, a smoker of a pack of cigarettes a day for five years, brought a medical monitoring suit for the negligent manufacture and sale of cigarettes that she alleged contained toxic substances that caused a significantly increased risk of developing lung cancer. Her complaint sought injunctive relief—a court-supervised program of medical monitoring, smoking cessation and education—for herself and for the 400,000-plus members of the class of Oregonians who, like Ms. Lowe, had similarly smoked “five pack years.” Ms. Lowe alleged no present physical harm, but argued the economic cost of “reasonable and necessary” monitoring was sufficient to meet the “harm” or “damages” element of her negligence claim. The trial court dismissed the matter for failure to state a claim because the plaintiff had no present injury, and the Court of Appeals affirmed. Lowe v. Philip Morris USA, Inc., 142 P.3d 1079 (Or. App. 2006).
The Court: Present Physical Injury Is Required
Awareness of the national debate over the propriety of medical monitoring claims animated the Oregon Supreme Court’s analysis. Nonetheless, at least on the thin motion-to-dismiss record before it, the court found no reason to depart from the state’s tort precedent by recognizing a new cause of action.
The court clarified that the plaintiff did not seek damages for fear of cancer, an increased risk of contracting cancer, or the cost of medical care to determine the extent of her harm. Oregon law permits recovery for all such claims upon proper proof of existing injury and other elements. Rather, the court looked at whether the plaintiff’s significantly increased risk of future cancer made periodic medical monitoring at the defendants’ expense reasonable and necessary.
Recognizing that actionable harm must be of a kind that the law protects against negligent invasion, Lowe ruled that neither the threat of future harm nor the economic cost of medical monitoring amounts to the kind of harm a negligence action is designed to address. The court cited to the longstanding principle that liability for purely economic harm, without any accompanying injury to the plaintiff’s person or property, must be predicated upon a duty higher than that of due care, and it found no such additional duty in this case.
Finally, the court refused to modify its existing negligence jurisprudence to create a cause of action requiring the defendants to bear the cost of Ms. Lowe’s medical monitoring. Familiar with the divided decisions from other jurisdictions,3 the court concluded that no such cases provided a basis for overturning Oregon’s well-established negligence precedents governing the case.
Lowe was an easy case for the Oregon Supreme Court, which firmly rejected the plaintiff’s invitation to blur the lines of the state’s negligence law to accommodate a new medical monitoring cause of action. With no allegation of present physical harm, no present physical effect, and no certainty that a future physical harm would follow, the court simply found no occasion to speculate over the “complex issues of science and law” involved in the question of when negligent exposure to toxic substances would cause sufficient harm to support a negligence claim.
Concurrence: Don’t Rule Out Medical Monitoring
Associate Justice Martha Walters was less constrained.
In an opinion destined to be quoted by numerous future plaintiffs, Justice Walters first emphasized her agreement that the lack of present physical injury was fatal to plaintiff’s suit. But she also suggested strategies, including an expansive conceptualization of...
