Lowe v. Philip Morris USA, Inc.

183 P.3d 181, 344 Or. 403, 2008 Ore. LEXIS 273

• Court: Oregon Supreme Court
• Decided: May 1, 2008
• Docket: CC 0111-11895; CA A123025; SC S054378
• Status: Published

Opinions

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 P3d 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 “[pleriodic 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 plaintiffs 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 plaintiffs 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, and we allowed review to consider whether plaintiffs 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 P2d 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 P2d 593 (1991) (psychic injury alone insufficient to state negligence claim except in limited circumstances); Norwest v. Presbyterian Intercommunity Hosp., 293 Or 543, 569, 652 P2d 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 P2d 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; see also Bollam v. Fireman’s Fund Ins. Co., 302 Or 343, 347, 730 P2d 542 (1986) (holding that “ £[t]he threat of future harm, not yet realized, is not enough’ ”) (quoting W. Page Keeton, Prosser and Keeton on the Law of Torts § 30, 165 (5th ed 1984)). As Prosser 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 plaintiffs 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.”

Keeton, Prosser and Keeton on Torts at 165 (footnotes omitted). Accordingly, a plaintiffs cause of action does not accrue, and the statute of limitations on that cause of action does not begin to run, until the plaintiff has suffered an “ ‘actual loss.’ ” Bollam, 302 Or at 347 (quoting Prosser and Keeton on Torts at 165).

The question of when negligent exposure to toxic substances causes a sufficient harm to give rise to a negligence claim can present complex issues of science and law. Cf. Doe v. American Red Cross, 322 Or 502, 512, 910 P2d 364 (1996) (stating that a person negligently infected through a blood transfusion with the human immunodeficiency virus had suffered a harm that would give rise to a negligence claim). The specific allegations in the case before us do not require us to explore the outer reaches of those issues, however. Plaintiff has not alleged that her exposure to defendants’ products has resulted in any present physical effect, much less any present physical harm. Nor has she alleged that any future physical harm to her is certain to follow as a result of that exposure. Rather, she has alleged only that her exposure to defendants’ products has significantly increased the risk that she will contract lung cancer sometime in the future. It is sufficient for the purposes of this case to hold only that, under Zehr and Bollam, the threat of future physical harm that plaintiff has alleged is not sufficient to give rise to a negligence claim.

Plaintiff argues, however, that two of this court’s cases have recognized that an increased risk of harm is sufficient to state a negligence claim. She relies initially on a statement from Norwest. In that case, a child brought an action to recover emotional distress damages against a physician and hospital whose negligence had permanently disabled his mother. 293 Or at 545. The child’s claim faced two potential hurdles. First, the only harm that the child experienced as a result of the defendants’ negligence was emotional distress. Id. at 558. Second, the distress that the child asserted “arfóse] solely as a consequence of a [physical] injury to another person.” Id. at 559. The court concluded that the fact that the child sought to recover only for emotional distress “[a]rguably” did not bar his negligence action, id. at 559, but held that the second hurdle — that the child’s distress arose solely as a consequence of a physical injury to another person — did bar his claim, id. at 569.⁶

In discussing the first issue, the court explained that it had permitted recovery for psychic injury alone either for certain intentional torts or when the defendant’s negligence “infringed some legally protected interest apart from causing the claimed distress.” Id. at 558-59. The court observed, however, that it “ [h] ad not yet extended liability for ordinary negligence to solely psychic or emotional injury not accompanying any actual or threatened physical harm or any injury to another legally protected interest.” Id. at 559 (emphasis added). Relying on the emphasized part of the last sentence, plaintiff argues that “threatened physical harm,” such as a risk of developing cancer, can constitute a cognizable injury in a negligence case.

Plaintiff reads that statement for more than it is worth. The plaintiff in Norwest did not seek to recover emotional distress damages for any actual or threatened physical injury to himself. The negative implication of the sentence on which plaintiff relies at most held open the possibility that a threat of imminent physical harm — a negligently driven car, for instance, that swerves off the road and narrowly misses a bystander — might give a bystander who suffers only psychic injury as a result an actionable claim for negligence. We need not decide how the statement in Norwest relates to this court’s later decision in Hammond in order to conclude that the statement provides no support for plaintiffs position in this case. Plaintiffs claim does not involve a threat of an imminent physical harm. Rather, plaintiff alleges only that defendants’ negligence may or may not give rise to physical harm at some indefinite point in the future. Norwest provides no assistance to plaintiff.

Plaintiff also relies on a statement from Joshi v. Providence Health System, 342 Or 152, 149 P3d 1164 (2006). Her reliance on that case is misplaced as well. The issue in Joshi was whether evidence that the defendant’s negligence had reduced a patient’s chance of survival by 30 percent was sufficient to prove that the defendant’s negligence had caused the patient’s death. See 342 Or at 156-57 (stating issues). There was no question in Joshi that the patient had suffered a physical injury: The patient had died. The only question was whether the evidence was sufficient, for the purposes of the wrongful death act, to permit a jury to find the necessary causal connection between the defendant’s negligence and the patient’s death. Interpreting the word “cause” in the wrongful death act, the court held that the evidence was not sufficient. Id. at 164. The court held out the possibility, however, that “deprivation of a 30 percent chance of survival may constitute an injury” outside the context of the wrongful death statute. Id. Considered in context, the court’s statement left open the question whether “deprivation of a 30 percent chance of survival” would be sufficient proof of causation if the plaintiff suffered an injury that did not lead to death. That statement goes to the causal connection necessary to prove negligence, not the type of injury necessary to state a negligence claim.

Our precedents establish that the threat of future harm that plaintiff has alleged is not sufficient to give rise to a negligence claim. The question that remains is whether the other harm that plaintiff has identified — having to undergo periodic medical monitoring — is sufficient. On that question, plaintiff notes that she alleged that medical monitoring is reasonable and necessary, and she contends that it is “perfectly reasonable to infer that such monitoring has a cost.” We agree that the inference concerning cost is a reasonable one and turn to the question whether the cost of medical monitoring is a sufficient injury to state a negligence claim.

This court repeatedly has recognized that “ ‘[o]ne ordinarily is not liable for negligently causing a stranger’s purely economic loss without injuring his person or property.’ ” Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 341, 83 P3d 322 (2004) (quoting Hale v. Groce, 304 Or 281, 284, 744 P2d 1289 (1987)). Instead, “liability for purely economic harm ‘must be predicated on some duty of the negligent actor to the injured party beyond the common law duty to exercise reasonable care to prevent foreseeable harm.’ ” Id. (quoting Onita Pacific Corp. v. Trustees of Bronson, 315 Or 149, 159, 843 P2d 890 (1992)). Plaintiff has not alleged an injury to her person or property, nor has she identified any duty that defendant owes her beyond the common-law duty to exercise reasonable care. Under Oregon Steel Mills and a long line of this court’s cases, the present economic harm that defendants’ actions allegedly have caused — the cost of medical monitoring — is not sufficient to give rise to a negligence claim.⁷

Plaintiffs argument, as we understand it, reduces to a claim that we should modify existing negligence law to require defendants to bear the cost of medical monitoring. On that point, the court has explained:

“This court generally will reconsider common-law doctrines in three situations: (1) when an earlier case was ‘inadequately considered or wrong when it was decided’; (2) when statutes or regulations have altered an ‘essential legal element assumed in the earlier case’; or (3) when the earlier rule was based on specific facts that have changed.”

Juarez v. Windsor Rock Products, Inc., 341 Or 160, 168, 144 P3d 211 (2006) (quoting G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 59, 757 P2d 1347 (1988)). Plaintiff does not argue that any of those three situations applies here. Instead, she notes that courts from other jurisdictions have divided over this question, and she urges us to adopt the reasoning of the decisions allowing actions for medical monitoring.⁸

We have reviewed the decisions favoring plaintiffs position, as well as those favoring defendants’. The decisions from other jurisdictions are divided, and there are well-reasoned arguments on both sides of the issue. Compare Hansen v. Mountain Fuel Supply Co., 858 P2d 970 (Utah 1993); Potter v. Firestone Tire and Rubber Co., 6 Cal 4th 965, 863 P2d 795 (1993); Ayers v. Jackson Township, 106 NJ 557, 525 A2d 287 (1987) (all recognizing medical monitoring claims), with Henry v. Dow Chem. Co., 473 Mich 63, 701 NW2d 684 (2005); Wood v. Wyeth-Ayerst Laboratories, 82 (Ky 2002); Metro-North Commuter Railroad v. Buckley, 521 US 424, 117 S Ct 2113, 138 L Ed 2d 560 (1997) (all rejecting medical monitoring claims; the last case rejecting a medical monitoring claim seeking damages rather than injunctive relief). We need not decide which line of decisions we might find more persuasive if this were a case of first impression. Our precedents control this issue, and the differing decisions from the other jurisdictions do not provide a basis for overruling Oregon’s well-established negligence requirements. See G.L., 306 Or at 58-59 (declining to modify common-law precedent).

Following our precedents, we hold that negligent conduct that results only in a significantly increased risk of future injury that requires medical monitoring does not give rise to a claim for negligence. The trial court correctly dismissed plaintiffs complaint for failure to state a negligence claim, and the Court of Appeals correctly affirmed the trial court’s judgment.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

1 In reviewing a ruling allowing a motion to dismiss for failure to state a claim, an appellate court assumes that all well-pleaded facts are true and gives the party opposing the motion the benefit of all reasonable inferences that may be drawn from those facts. See Caba v. Barker, 341 Or 534, 536, 145 P3d 174 (2006) (stating standard of review).

2 Although the complaint does not define the term “pack year,” one court has explained that “pack year” refers to smoking the equivalent of one pack of cigarettes each day for one year. See Barnes v. American Tobacco Co., 161 F3d 127, 137 n 7 (3d Cir 1998) (explaining concept).

3 According to the complaint, the class includes approximately 400,000 members, and the “monetary value of the benefits sought by plaintiff and class members totals no more than $74,000 per person,” or approximately $29.6 billion for the class.

4 Because the trial court ruled that plaintiffs allegations failed to state a claim for which relief may be granted, it did not decide whether to certify a class.

5 We note that this case differs from cases such as Friends for All Children v. Lockheed Aircraft, 746 F2d 816, 825 (DC Cir 1984), where the court allowed amedical monitoring claim when children suffered "explosive decompression” and oxygen deprivation during an airplane crash but manifested no apparent physical injury. As we understand the court’s decision, it held that the oxygen deprivation and the decompression were sufficient harms to give rise to a negligence claim for medical treatment to determine whether those harms had resulted in brain damage. Id. at 825-26. In this case, plaintiff has not alleged that she suffered any comparable present physical effects as a result of smoking defendants’ products that would require us to decide whether those effects were sufficient to give rise to a medical monitoring claim.

6 The court recognized that, because the defendants’ negligence arguably “infringed some legally protected interest apart from causing the claimed distress,” the fact that the child suffered only emotional distress as a result of his mother’s injury did not provide a clear basis for saying that he could not state a negligence claim against the defendants. Norwest, 293 Or at 559. The court accordingly focused on the other hurdle that the child’s claim faced, viz., he sought to recover for harm caused solely as a consequence of an injury to another person.

7 Plaintiff argues that the rule in Oregon Steel Mills should not apply to this case because she was a direct, not a third party, victim of defendants’ negligence. Plaintiff’s argument is difficult to square with Hale and Oregon Steel Mills. Both cases held categorically that purely economic harm is not sufficient to state a negligence claim without some source of duty outside the common law of negligence. Oregon Steel Mills, 336 Or at 341; Hale, 304 Or at 284.

8 The parties and commentators disagree over the exact number of jurisdictions on each side of the issue.