Toxic tort plaintiffs’ attorneys are frequently seeking to have defendant companies pay all medical monitoring costs for plaintiffs who claim that they were exposed to toxic substances as a result of the defendants’ claimed negligence. Indeed, such claims have been made in many recent high-profile cases involving lead paint exposure in children’s toys, plastic toxins in baby bottles, asbestos exposure arising out of certain industries, and a host of other alleged toxic tort issues.

To maximize their case leverage and financial interests, after they file these claims, plaintiffs’ counsel often seek to certify a class of similarly situated people to undergo the diagnostic testing. The costs associated with a large class can easily run in the hundreds of millions of dollars. The problem with many of these claims is that the individuals seeking the medical monitoring costs are neither injured nor harmed.

In Patricia R. Lowe v. Philip Morris USA Inc., et al. (CC 0111-11895; CA A123025; SC S054378) (May 1, 2008) (decision attached below as a PDF document), a recent opinion that was characterized by many as proof that the tide is finally turning in toxic tort defendants’ favor against court ordered medical monitoring claims, the Oregon Supreme Court affirmed the dismissal of a complaint seeking medical monitoring. While Lowe is already a key decision for Oregon defendants, it could also prove to be a strong and persuasive argument for courts in other jurisdictions to consider when deciding whether to order toxic tort defendants to pay for medical monitoring costs.

Plaintiff in Lowe sued various cigarette manufacturers seeking injunctive relief to create “a court-monitored program of medical monitoring, smoking cessation and education” for her and about 400,000 other similarly situated Oregonians at a projected total cost of $29.6 billion. Plaintiff alleged that defendants negligently made and sold cigarettes which placed her (and others from Oregon) at an increased risk of developing lung cancer. Plaintiff had smoked a pack of cigarettes a day for more than five years. As a result, she claimed that it was necessary for her to undergo periodic medical screenings by CT scans, which would provide her with early detection of any lung cancer so that early responsive treatment could begin. Nowhere in plaintiff’s complaint, however, did she allege that she suffered a present physical injury.

Defendants moved to dismiss the complaint on the basis that it failed to state a claim for negligence. Plaintiff argued that a present physical injury was only required for emotional distress claims, not medical monitoring cases. Her logic was that if some of the class members in her action would likely develop lung cancer sometime in the future, then she could state a claim for negligence and injunctive relief. The trial court granted defendants’ motion and dismissed the complaint. That decision was affirmed on appeal.

The Oregon Supreme Court clarified that this case was not one in which a plaintiff alleged that she suffered any present physical harm as a result of the defendants’ negligence. Instead, plaintiff in Lowe alleged no present physical injury but only that she and others were at a “significantly increased risk of developing lung cancer in the future” making it “reasonable and necessary for her to undergo periodic medical monitoring” at defendants’ expense. Under Oregon law, the Court noted, “the threat of future harm, by itself, is insufficient as an allegation of damage in the context of a negligence claim.” Further, a cause of action does not accrue and the applicable statute of limitations period does not begin until the plaintiff has sustained an “actual loss.”

The Court next considered whether the cost associated with medical monitoring alone is a sufficient injury to state a cause of action under negligence. Noting the absence of any allegation of an injury to plaintiff’s person or property, or of a duty owed by defendants, the Court looked at plaintiff’s contention as requesting the Court to modify existing negligence law so that defendants would have to pay the medical monitoring bill. “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.” Plaintiff, however, failed to argue that any of the reconsideration factors applied in her case. Following its own line of precedent, the Court held that negligent conduct that results in a significantly increased risk of future injury that requires medical monitoring does not rise to the level of a valid claim for negligence.

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For further information, please contact Craig T. Liljestrand or your regular Hinshaw attorney.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.