Lowe v. Philip Morris Usa, Inc.

Decision Date06 September 2006
Docket NumberA123025.,0111-11895.
Citation207 Or. App. 532,142 P.3d 1079
PartiesPatricia R. LOWE, individually and on behalf of all similarly-situated persons, Appellant, v. PHILIP MORRIS USA, INC.; RJ Reynolds Tobacco Company; Brown & Williamson Tobacco Corporation; Lorillard Tobacco Company and Liggett Group, Inc., foreign corporations, Respondents.
CourtOregon Court of Appeals

James S. Coon, Portland, argued the cause for appellant. With him on the briefs was Swanson, Thomas & Coon. On the reply brief was Raymond F. Thomas.

William F. Gary, Eugene, argued the cause for respondents Philip Morris USA, Inc., RJ Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, and Lorillard Tobacco Company. On the joint brief were Roy Pulvers and Lindsay, Hart, Neil & Weigler, LLP, and Thomas Tongue and Dunn Carney Allen Higgins & Tongue LLP.

Douglas G. Pickett, Portland, and Martin, Bischoff, Templeton, Langslet & Hoffman LLP filed the brief for respondent Liggett Group, Inc.

Before LANDAU, Presiding Judge, and LINDER and ORTEGA, Judges.


Plaintiff, a long-time cigarette smoker, filed a complaint for negligence against defendants, who are cigarette manufacturers. She alleged no current injury. Instead, she alleged that her accumulated exposure to cigarette smoke has increased her risk of contracting lung cancer some time in the future. That risk, she alleged, creates a current need for medical monitoring and smoking cessation treatment, which defendants should now be ordered to provide. Defendants moved to dismiss the complaint on the ground that plaintiff's complaint fails to state a claim for negligence. According to defendants, under Oregon law, a necessary element of any negligence claim is an allegation of present physical injury. Plaintiff argued that her present risk of future injury suffices to establish the injury requirement. The trial court agreed with defendants and dismissed the complaint. Plaintiff appeals, arguing that the trial court erred in dismissing the complaint. We affirm.


We review the dismissal of a complaint for failure to state a claim as a matter of law. L.H. Morris Electric v. Hyundai Semiconductor, 187 Or.App. 32, 35, 66 P.3d 509 (2003). We assume the truth of all allegations in the pleading, as well as any inferences that may be drawn from them, and view the allegations and inferences in the light most favorable to plaintiff, the nonmoving party. Id.

Plaintiff has smoked cigarettes for more than five "pack years." That is, she has smoked the equivalent of one pack per day for five years. She has attempted to quit smoking many times, always unsuccessfully. Defendants manufacture cigarettes for sale in Oregon.

Plaintiff filed a complaint against defendants for negligence. It is denominated a "class action," although to date no class has been certified. According to the allegations of that complaint, defendants were negligent in, among other things, "manufacturing and selling a product that defendants knew or should have known contained toxic and hazardous substances likely to cause lung cancer."

Plaintiff does not now suffer from lung cancer. Nor has she ever been diagnosed with lung cancer. Nor does she allege any other adverse or ill effect on her health caused by her smoking. She alleged in her complaint, however, that, as a result of defendants' negligence, she and others like her "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." She then alleged that "to minimize future harm from defendants' negligence," she seeks the following relief:

"a. Annual court-supervised medical monitoring of each class member by spiral CT scan to provide for early detection of lung cancer;

"b. Smoking cessation treatment, including behavioral programs and medical regimens that would allow plaintiff and class members to cease using defendants' cigarettes; and

"c. Public education to provide information to class members regarding the benefits of smoking cessation and the benefits of early cancer detection."

According to the allegations of the complaint, periodic medical screening and smoking cessation therapy are "reasonable and necessary" because of her "significantly increased risk of contracting lung cancer as a result of smoking defendants' cigarettes."

Defendants moved to dismiss the complaint for failure to state a claim. ORCP 21 A(8). Defendants argued that plaintiff had failed to allege a cognizable injury, a required element of a claim for negligence under Oregon law. In response to defendants' motion, plaintiff argued that she had alleged the requisite injury in the form of a current need for treatment occasioned by the increased risk of lung cancer that results from smoking defendants' cigarettes.

At the hearing on defendants' motion, the trial court questioned plaintiff about the nature of the injury that she is alleging in her complaint. Plaintiff replied that "[i]t's not physical injury." Instead, she explained, "in our case, we allege that that is future injury." She stated that the injury is the fact that, according to statistical studies, a significant portion of long-time smokers will eventually develop lung cancer. At the conclusion of the hearing, the trial court announced that it would grant the motion to dismiss, explaining that, "in Oregon, a present injury [is] required."

A. The parties' arguments

On appeal, plaintiff argues that the trial court erred in dismissing her complaint. Her arguments on appeal appear to shift somewhat from opening to reply briefs. In her opening brief, she argues that the trial court erred in holding that a present injury is required at all. According to plaintiff, Oregon law recognizes an action in negligence to recover not merely actual harm, but also threatened harm. "[U]nder ordinary principles of the common law of negligence," plaintiff argues, "defendants are responsible for plaintiff's reasonable efforts to avert future harm threatened by defendants' conduct." In the opening brief, plaintiff characterizes medical monitoring as a "remedy" that is "reasonable and necessary for plaintiff * * * because of [her] significantly increased risk" of harm.

In her reply brief, however, she argues that her need for medical testing occasioned by the risk of future harm is itself a present harm. In plaintiff's words, the "need for medical monitoring is a sufficient present injury to support a claim for common law negligence without present physical injury." Plaintiff acknowledges that no Oregon court has yet reached that conclusion, but she insists that it is consistent with existing law and comports with what she characterizes as "the clear majority" rule among other jurisdictions.

Defendants respond that the former argument, that a mere risk of harm is actionable in negligence, is simply wrong. Oregon law, argue defendants, predicates tort liability on the existence of actual, present, and—subject to limited exceptions—physical harm. Moreover, insist defendants, any deviations from that foundational principle of Oregon law must emanate from the legislative—and not the judicial—process. According to defendants, "[o]nly the legislature, equipped to gather a wider scope of information and better able to resolve varying perspectives, could properly balance the issues raised by requests for medical screening." As for the argument that the need for medical monitoring is itself a cognizable injury, defendants argue that it was never advanced to the trial court and, accordingly, was not preserved. In any event, they argue, it also is incorrect. In defendants' view, plaintiff's own allegations make clear that medical monitoring is merely the remedy that she seeks for her alleged increased risk of harm and does not affect the legal sufficiency of the underlying claim itself.

B. Background: "Medical monitoring"

Whether a defendant may be liable in negligence for so-called "medical monitoring" is a matter of first impression in Oregon. It is, however, an issue that has been the subject of much litigation and scholarly debate elsewhere. We briefly review that debate, as it provides helpful context for the parties' arguments concerning the extent to which medical monitoring should be recoverable under Oregon law.

As Prosser once observed, "[t]he shadow of the past still lies rather heavily on the law of torts." William L. Prosser, The Law of Torts 19 (4th ed. 1971). That observation is an apt starting point for a discussion of the recoverability of medical monitoring in negligence. For centuries, one of the fundamental principles of tort law has been that liability may not be imposed in the absence of proof of physical injury or property damage. As a more recent edition of Prosser's work on the law of torts explains:

"Since the action for negligence developed chiefly out of the old form of action on the case, it retained the rule of that action, that proof of damage was an essential part of the plaintiff's case. Nominal damages, to vindicate a technical right, cannot be recovered in a negligence action, where no actual loss has occurred. The threat of future harm, not yet realized, is not enough. Negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered."

W. Page Keeton et al., Prosser and Keeton on the Law of Torts 165 (5th ed. 1984).

In recent years, courts have fashioned various exceptions to that general rule. For example, in some circumstances, courts permit recovery in negligence for the infliction of emotional distress without proof of physical harm. See Mary Donovan, Is the Injury Requirement Obsolete in a Claim for Fear of Future...

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    • U.S. District Court — District of Oregon
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    ...law, "a fundamental prerequisite of negligence liability ... is actual, present harm or injury." Lowe v. Philip Morris USA, Inc., 207 Or.App. 532, 544, 142 P.3d 1079 (Or.Ct.App.2006) (citation omitted). In the negligence context, "`harm' generally refers to physical injury." Id. at 545, 142......
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