When we hear about another state supreme court deciding a medical monitoring case, we start to salivate.
(That’s not a pretty picture, we know.)
Imagine our anticipation when we kicked back with a copy of Lowe v. Philip Morris USA Inc., No. CC 0111-11895, CA A123025, SC S054378, slip op. (Or. May 1, 2008). We’ve dined on medical monitoring decisions before (here and here) , and we were all set to feast on this one.
Sadly, it was not to be.
Lowe is plainly an important case, but it goes off on narrow and state-specific grounds, and so makes no interesting new law.
Patricia Lowe sued on behalf of herself and a putative class of 40,000 similarly situated Oregonians, pleading that she had smoked five pack years of cigarettes and was thus at risk of developing lung cancer. She therefore claimed that she and the class were entitled to periodic Computerized Tomography (or “CT”) scans for early detection of lung cancer. Defendants moved to dismiss because, under Oregon law, a plaintiff must plead a present physical injury to state a claim for negligence. Lowe’s claim was based entirely on the risk of future injury.
The trial court dismissed the complaint; the Court of Appeals affirmed; and the Oregon Supreme Court affirmed in turn.
The Supreme Court first rejected plaintiff’s argument that an increased risk of contracting lung cancer in the future is, by itself, a sufficient harm to state a negligence claim. “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.” Slip op. at 4 (at least, we think it’s 4; we’re working from a version of the opinion we downloaded from the Oregon Supreme Court’s website). Absent an allegation of present physical harm, or the certainty of a harm in the future, plaintiff did not state a claim.
The Court then considered whether the harm that plaintiff identified — “having to undergo periodic medical monitoring” (id. at 6) — was sufficient to state a claim. In Oregon, it is not: “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.'” Id. (quoting earlier cases). Oregon thus joins the parade of states rejecting claims for medical monitoring.
The Court then came awfully close to the good stuff: “The decisions from other jurisdictions [recognizing medical monitoring as either a tort or an element of damages] are divided, and there are well-reasoned arguments on both sides of the issue.” Id. The Oregon precedents, however, “control this issue, and the differing decisions from the other jurisdictions do not provide a basis for overruling Oregon’s well-established negligence requirements.” Id. at 7.
Shoot!
Oregon has joined the parade of cases rejecting medical monitoring in no-injury situations, but it will never lead that parade. Lowe is string cite material but, outside of Oregon, probably nothing more.
Still, we can’t rightly criticize that exercise in judicial conservatism. That’s just what courts are supposed to do — decide cases narrowly under local law, and avoid forays off into the unsettled law of other states.
But these stodgy little solid opinions sure do take all the fun out of our avocation.
As someone once said (or should have said): “Good cases make bad blog posts.”