Tobacco.org

Experience - Lowe v. Philip Morris USA, et al., 183 P.3d 181, 2008 WL 1903463 (Or. May 1, 2008) 

Client(s): R.J. Reynolds Tobacco Company

Representation: Lowe v. Philip Morris USA, et al., 183 P.3d 181, 2008 WL 1903463 (Or. May 1, 2008)

Lead Practice(s): Class Action Litigation

May 2008

Summary: On May 1, 2008, the Oregon Supreme Court affirmed the dismissal of a proposed class action seeking medical monitoring in Lowe v. Philip Morris USA, et al., 183 P.3d 181 , 2008 WL 1903463 (Or. 2008). The action was filed in state court in Portland, Oregon in late 2001, proposing a statewide class of current and former cigarette smokers and seeking medical monitoring (an annual spiral CT scan for life) to assist in the early detection of lung cancer. . . .

In a unanimous opinion, the Oregon Supreme Court affirmed. The Court held 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."

Jump to full article »

Oregon justices side with tobacco companies 

The Oregon Supreme Court on Thursday let a lower court ruling stand, rejecting a class action lawsuit seeking to force tobacco companies to pay the medical monitoring bills of smokers.

The lawsuit sought to force the nation's five biggest tobacco companies to pay for healthcare expenses for up to 400,000 Oregonians by paying for such things as tests to detect lung cancer, emphysema and other diseases attributed to smoking. . . .

"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," Justice Rives Kistler wrote for the court.

"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,'" he wrote.

Jump to full article »

• Ore. court rejects medical costs claim on tobacco industry  

The same Oregon court that slapped Big Tobacco with a huge punitive damages award has handed the industry a victory by rejecting a class-action lawsuit for medical monitoring costs in a case where harm had yet to occur. . . . Lowe argued the industry should pay for tests to detect lung tumors at their earliest and most treatable stage.

The court ruled instead that Oregon law has long recognized that "a threat of future physical harm is not sufficient" grounds for a legal claim.

James Coon, who represents Lowe, said the ruling shows the law is trailing behind science.

"Certain toxic products put people at risk for future injury," Coon said, but "medical monitoring is a concept that ancient common law has trouble dealing with, and the court in this case applied old common law concepts without flexing them in any way."

Carl Tobias, a University of Richmond law professor who specializes in torts, or damage claims, agreed.

"It doesn't fit in the box of traditional tort law," Tobias said. "Tort law by definition is after the fact. It aims primarily to compensate for past harm -- not to prevent future harm."

Jump to full article »

• LOWE v. PHILIP MORRIS, et. al. 

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 plaintiff's complaint for failure to state a negligence claim, and the Court of Appeals correctly affirmed the trial court's judgment.

Jump to full article »

• Oregon Supreme Court Rules in Favor of R.J. Reynolds Tobacco Company In Medical Monitoring Suit 

The Oregon State Supreme Court today issued its ruling in Lowe, a proposed statewide class action in which plaintiff sought to make cigarette manufacturers, including R. J. Reynolds Tobacco Company, pay for medical monitoring of all Oregon cigarette smokers.

The court ruled that the trial court’s dismissal of the complaint and the intermediate appellate court’s unanimous decision affirming that ruling were correct.

Jump to full article »

Oregon high court hears case against Big Tobacco 

Oregon's highest court heard arguments Wednesday in a class-action lawsuit that seeks to force tobacco companies to pay for medical tests to detect lung cancer, emphysema and other smoking-related diseases.

Two lower courts have rejected the arguments of Patricia Lowe of Beaverton, who quit smoking after 40 years and filed the original suit in 2001. Lowe is now in her mid-60s.

But six justices of the Oregon Supreme Court heard Lowe's lawyer argue that the tobacco companies should pay for medical screenings, particularly spiral CT scans, a three-dimensional form of computerized X-rays that can detect lung tumors at their earliest and most treatable stage.

Jump to full article »

Ore. High Court Hears Tobacco Case  

The tobacco industry should be required to provide medical monitoring for smokers to make sure they don't develop tobacco-related illnesses, the Oregon Supreme Court was told Wednesday.

The arguments before the state's highest court came in a class-action lawsuit that seeks to force tobacco companies to pay for medical tests to detect lung cancer, emphysema and other smoking-related diseases.

Jump to full article »

• Ore. Supreme Court hears case of health monitoring by big tobacco 

The Oregon Supreme Court heard arguments today in a class-action lawsuit that seeks to force tobacco companies to pay for medical tests to detect lung cancer, emphysema and other smoking-related diseases.

So far, the lower courts have rejected the arguments of Patricia Lowe of Beaverton, who quit smoking after 40 years and filed the original lawsuit in 2001.

Jump to full article »

Oregon Judicial Department Appellate Court Opinions 

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. . . .

In summary, we conclude that the allegations of plaintiff's complaint are legally insufficient to state a claim for negligence under current Oregon law or any reasonable extension of the principles underlying that law. The complaint fails to include an allegation of actual, present harm of any sort, much less the physical harm that ordinarily is required to state a claim for negligence. The complaint instead rests on the allegation of the need for treatment to redress the mere possibility of future harm. In fact, by relying on the mere possibility of future harm--as opposed, for example, to an allegation of the probability or reasonable certainty of future harm--plaintiff has pleaded her claim in the broadest possible terms, as a review of the case law from other jurisdictions makes clear. In that regard, we emphasize that our holding in this case is a narrow one: As pleaded, plaintiff's claim fails as a matter of law. We leave for another day whether a negligence claim predicated on different allegations as to the risk of future harm and the certainty of the need for treatment is cognizable under Oregon law.

For all of the foregoing reasons, we conclude that the trial court did not err in dismissing plaintiff's complaint.

Jump to full article »

• Oregon Appeals Court turns down smoker's lawsuit 

A court ruled against Patricia Lowe in a Multnomah County case.

She had filed suit against four major tobacco companies, asking that they be required to pay for annual scans for early detection of lung cancer, smoking cessation classes and drugs, and public education programs.

The appeals court, upholding a trial court, said Oregon law doesn't allow lawsuits alleging negligence unless the plaintiff has suffered harm.

Jump to full article »

Florida Jury Denies Damages to Former Flight Attendant 

In a victory for tobacco companies and American Airlines, a Miami-Dade Circuit Court jury Thursday decided secondhand smoke was not the cause of a former flight attendant's chronic sinusitis, and awarded her nothing after a 10-day trial. . .

For the first time in the 11-year history of what is known as the Broin class action, lawyers for Philip Morris, Lorillard Tobacco, R.J. Reynolds and Brown & Williamson argued airlines should share the blame.

On Wednesday, Circuit Judge Leslie B. Rothenberg initially rejected the argument, but reversed herself and allowed the claim to go to the jury.

Jump to full article »

R.J. Reynolds Tobacco Company Wins Flight Attendant Case in Florida 

"After hearing all the facts, the six-member jury unanimously agreed that Mrs. Janoff's exposure to secondhand smoke in airplanes did not cause the injuries she claimed," said Neil Kodsi, Reynolds Tobacco's lead attorney in this case.

"This victory was particularly satisfying because an order that was entered in these flight-attendant cases effectively and wrongfully prevented us from fully defending ourselves. Despite this handicap, we prevailed," Kodsi said. . .

Kodsi noted: "Credible evidence does not exist to show that secondhand smoke causes chronic sinusitis or any of the other injuries Mrs. Janoff claimed even at the highest levels likely to be encountered by nonsmokers in real-world environments.

"Today's verdict should put plaintiffs' attorneys on notice that these types of contrived lawsuits will not pass muster with the public," said Kodsi.

Jump to full article »

• Lawsuit Filed Against Tobacco Cos. 

A woman who quit smoking after 40 years filed a class-action lawsuit Monday seeking to force tobacco companies to pay for medical tests that could detect smoking-related diseases.

An attorney for Philip Morris said the lawsuit is nearly identical to a class-action suit rejected last week by a West Virginia jury.

Patsy Lowe, 61, argues cigarette makers must help prevent any disease their product causes Oregonians . . .

The Oregon lawsuit asks the tobacco companies to pay for spiral CT scans - a new three-dimensional form of computerized X-rays - that can detect lung cancer tumors at their earliest and most treatable stage.

Bill Gaylord, an attorney for Lowe, said the scans typically cost about $325, which likely will discourage many people from asking for them.

Jump to full article »