May 5, 2008 - Tobacco Companies Gain Victory in Oregon Supreme Court

The Oregon Supreme Court found in favor of the tobacco industry Thursday by rejecting a class-action lawsuit for medical monitoring costs in a case that involved future harm to victims.

The unanimous ruling held that smokers must show actual harm to claim negligence against cigarette manufacturers, not just the possibility they will be harmed in the future.

The lawsuit was filed by Patricia Lowe on behalf of about 400,000 Oregon residents, who argued that the tobacco companies were negligent because they "knew or should have known that their cigarettes contained toxic and hazardous substances likely to cause lung cancer."

Plaintiffs contended that the tobacco industry should be responsible for early testing to detect lung tumors at their most treatable stage. The court disagreed, ruling that "a threat of future physical harm is not sufficient" grounds for a legal claim.

Lowe’s attorney said the ruling demonstrates how the law is not in step with science.  "Certain toxic products put people at risk for future injury," he 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 torts professor at the University of Richmond School of Law, 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."

But Tobias noted that a concurring opinion by Oregon Supreme Court Justice Martha Lee Walters acknowledged the possibility that the law could change "when science and medicine are able to identify harm before it becomes manifest."

Thomas Glynn, the American Cancer Society's cancer science and trends director, believes that time is rapidly approaching. "We're probably about two years away before we can say whether we can detect lesions early enough to know what the effect will be," Glynn said.

Ben Zipursky, a Fordham University School of Law professor who specializes in product liability, expressed surprise at the ruling because it came from the same court that recently upheld an award of $79.5 million in punitive damages against Philip Morris after the U.S. Supreme Court deemed it excessive. "This is the very court that has most aggressively ruled against Philip Morris," Zipursky said.

The companies named in the suit are Philip Morris, R.J. Reynolds Tobacco Co., Brown & Williamson Tobacco Corp., Lorillard Tobacco Co., and Liggett Group Inc. Two of the five companies, Philip Morris and R.J. Reynolds lauded the court’s decision in a statement released on Thursday.

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