Lowe v. Philip Morris Usa, Inc.

• Decision Date: 01 May 2008
• Docket Number: CA A123025.,SC S054378.,CC 0111-11895.
• Citation: 183 P.3d 181,344 Or. 403
• Parties: Patricia R. LOWE, individually and on behalf of all similarly-situated persons, Petitioner on Review, v. PHILIP MORRIS USA, INC.; RJ Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation; Lorillard Tobacco Company; and Liggett Group Inc., foreign corporations, Respondents on Review.
• Court: Oregon Supreme Court

183 P.3d 181

344 Or. 403

Patricia R. LOWE, individually and on behalf of all similarly-situated persons, Petitioner on Review, v. PHILIP MORRIS USA, INC.; RJ Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation; Lorillard Tobacco Company; and Liggett Group Inc., foreign corporations, Respondents on Review.

CC 0111-11895.

CA A123025.

SC S054378.

Supreme Court of Oregon.

Argued and Submitted September 5, 2007.

Decided May 1, 2008.

On review from the Court of Appeals.^*

James S. Coon, of Swanson, Thomas & Coon, Portland, argued the cause and filed the briefs for petitioner on review.

William F. Gary, of Harrang Long Gary Rudnick PC, Portland, argued the cause and filed the brief for respondents on review Philip Morris USA Inc., RJ Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, and Lorillard Tobacco Company. With him on the brief were Sharon A. Rudnick, Roy Pulvers, of Lindsay, Hart, Neil & Weigler, LLP, Portland, and Thomas Tongue, of Dunn Carney Allen Higgins & Tongue LLP, Portland.

Justin M. Thorp, of Martin, Bischoff, Templeton, Langslet & Hoffman LLP, Portland, filed the brief for respondent on review Liggett Group, Inc.

Brian S. Campf, of Brian S. Campf PC, Portland, filed the briefs for amici curiae Oregon Trial Lawyers Association and American Cancer Society.

P. Arley Harrel, of Williams, Kastner & Gibbs PLCC, Seattle, WA, filed the brief for amicus curiae Product Liability Advisory Council, Inc. With him on the brief was Hugh F. Young, Jr., Product Liability Advisory Council, Inc., Reston, VA.

James N. Westwood, of Stoel Rives LLP, Portland, filed the brief for amici curiae Coalition for Litigation Justice, Inc., Chamber of Commerce of the United States of America, National Association of Mutual Insurance Companies, Property Casualty Insurers Association of America, American Insurance Association, American Chemistry Council, National Association of Manufacturers, and American Tort Reform Association. With him on the brief were Jerome A. Murphy and Natalia R. Medley, of Crowell & Moring LLP, Washington, DC; Robin S. Conrad and Amar D. Sarwal, of the National Chamber Litigation Center, Washington, DC; Gregg Dykstra, of the National Association of Mutual Insurance Companies, Indianapolis, IN; Ann W. Spragens and Robert J. Hurns, of Property Casualty Insurers Association of America, Des Plaines, IA; Donald D. Evans, of the American Chemistry Council, Arlington, VA; Jan Amundson and Quentin Riegel, of the National Association of Manufacturers, Washington, DC; Sherman Joyce, of the American Tort Reform Association, Washington, DC; Lynda S. Mounts and Kenneth A. Stoller, of the American Insurance Association, Washington, DC.

Thomas W. Brown, of Cosgrave Vergeer Kester LLP, Portland, filed the brief for amici curiae Oregon Forest Industries Council and Oregon Restaurant Association.

Janet M. Schroer, of Hoffman, Hart & Wagner, LLP, Portland, filed the brief for amicus curiae Associated Oregon Industries.

John M. Groen, of Groen, Stephens & Klinge, LLP, Bellevue, WA, filed the brief for amicus curiae Pacific Legal Foundation. With him on the brief was Deborah J. La Fetra, Pacific Legal Foundation, Sacramento, CA.

Before De Muniz, Chief Justice, and Gillette, Durham, Balmer, Kistler, and Walters, Justices.^**

KISTLER, J.

Plaintiff brought this action alleging that defendants' negligent manufacture and sale of cigarettes caused her to suffer a "significantly increased risk of developing lung cancer" and that, as a result, it was "reasonable and necessary" for her to undergo "[p]eriodic medical screening." She sought injunctive relief requiring the "creation of a court-monitored program of medical monitoring, smoking cessation and education" for her and approximately 400,000 similarly situated Oregonians. Defendants moved to dismiss plaintiff's complaint on the ground that it did not allege a present physical injury and thus failed to state a claim for negligence. The trial court agreed and entered judgment in defendants' favor. The Court of Appeals affirmed. Lowe v. Philip Morris USA, Inc., 207 Or.App. 532, 142 P.3d 1079 (2006). We allowed plaintiff's petition for review and now affirm the Court of Appeals decision and the trial court's judgment.

We take the facts from plaintiff's second amended complaint.¹ Plaintiff has smoked more than five "pack years" of cigarettes.² Defendants negligently manufactured and sold those cigarettes; among other things, they knew or should have known that their cigarettes "contained toxic and hazardous substances likely to cause lung cancer." As a result of defendants' negligence, plaintiff and all similarly situated Oregonians "have suffered injury in that they have been significantly exposed to proven hazardous substances in defendants' cigarettes, and suffer significantly increased risk of developing lung cancer."

The complaint does not allege that plaintiff has suffered any present physical harm as a result of defendants' conduct. The complaint alleges only that plaintiff has suffered a "significantly increased risk of developing lung cancer" in the future. In describing the relief that plaintiff seeks, the complaint alleges that the exposure to toxic substances and the resulting increased risk of lung cancer have made it "reasonable and necessary" for her to undergo "[p]eriodic medical screening by spiral [Computerized Tomography (CT) scans]," which provide for "[e]arly detection of lung cancer" and "substantially increas[e] the probability of successful treatment, enhanced life expectancy, and cure." The complaint asked the trial court to certify a class of all Oregonians who have smoked five pack years of cigarettes. The complaint also asked the trial court to "create a court-supervised program [for all class members] to provide medical monitoring by CT scan and smoking cessation therapy, including public education concerning the program."³

Defendants moved to dismiss plaintiff's complaint for failure to state a claim. Defendants argued that plaintiff needed to allege a present physical injury in order to state a negligence claim and that she had not done so. Plaintiff responded that a present physical injury is only necessary in order to recover emotional distress damages. In plaintiff's view, she could state a negligence claim, at least for injunctive relief, if some of the class members would suffer lung cancer in the future. The trial court granted defendants' motion to dismiss but gave plaintiff 10 days to decide whether to seek leave to file a third amended complaint. Plaintiff elected not to do so, and the court entered judgment in defendants' favor.⁴ See ORCP 21 A (authorizing that procedure). The Court of Appeals affirmed, Lowe, 207 Or.App. at 534, 142 P.3d 1079, and we allowed review to consider whether plaintiff's complaint stated a negligence claim under Oregon law.

Before turning to the parties' arguments, we begin by noting what this case does not involve. This is not a case in which plaintiff has alleged that she has suffered any present physical harm as a result of defendants' negligence and seeks damages for her fear of developing cancer, for the increased risk of developing cancer that she faces, or for the costs of medical care to determine the extent of her harm. In such a case, as defendants conceded below, a plaintiff could obtain damages for those harms upon proper proof. See Zehr v. Haugen, 318 Or. 647, 656-57, 871 P.2d 1006 (1994) (recognizing that, when a defendant's negligence causes bodily injury, the plaintiff can recover damages for past, present, and future medical expenses, bodily injury, and emotional distress).⁵ Rather, plaintiff alleges only that a significantly increased risk of developing lung cancer in the future as a result of defendants' negligence makes it reasonable and necessary for her to undergo periodic medical monitoring. Accordingly, the question before us is whether those allegations state a sufficient harm to give rise to a negligence claim.

Over the course of this litigation, plaintiff has characterized the harm that gives rise to her claim differently. As the Court of Appeals noted, plaintiff argued before the trial court that a significantly increased risk of contracting lung cancer in the future is, by itself, a sufficient harm to state a negligence claim. On appeal, she focused on an additional harm. She contended that, as a result of defendants' negligence, she needs to undergo periodic medical monitoring for lung cancer and that the economic cost of that monitoring constitutes a sufficient present harm to give rise to a negligence claim. We first consider whether a significantly increased risk of future physical injury is a sufficient harm to state a negligence claim. We then turn to whether the economic cost of undergoing medical monitoring is sufficient.

Not all negligently inflicted harms give rise to a negligence claim. See Hammond v. Central Lane Communications Center, 312 Or. 17, 22-23, 816 P.2d 593 (1991) (psychic injury alone insufficient to state negligence claim except in limited circumstances); Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 569, 652 P.2d 318 (1982) (child's distress caused by negligently inflicted harm to parent insufficient to state negligence claim). Rather, a plaintiff must suffer harm "to an interest of a kind that the law protects against negligent invasion." Solberg v. Johnson, 306 Or. 484, 490, 760 P.2d 867 (1988).

Oregon law has long recognized that the fact that a defendant's negligence poses a threat of future physical harm is not sufficient, standing alone, to constitute an actionable injury. As this court has explained, "the threat of future harm, by itself, is insufficient as an allegation of damage in the context of a negligence claim." Zehr, 318 Or. at 656, 871 P.2d 1006; see also Bollam v. Fireman's Fund Ins. Co., 302 Or. 343, 347, 730 P.2d 542 (1986) (holding that "`[t]he threat of future harm, not yet...