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Deals & Cases

Oregon Supreme Court rejects medical monitoring and affirms dismissal of proposed "No Injury" class action

May 2008

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., --- P.3d ----, 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 September 2003, the trial court granted defendants' motion to dismiss because plaintiff's alleged injury of "exposure" and "increased risk of disease" was not legally sufficient under Oregon law. The Court of Appeals affirmed the dismissal in September 2006, holding that plaintiff's alleged injury — whether framed as exposure to cigarette smoke and an increased risk of contracting lung cancer in the future, or a current need for medical monitoring — was insufficient to establish liability in negligence under Oregon law.

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."

The Jones Day team representing R.J. Reynolds in this matter included, among others, Jerome R. Doak (Dallas); Charles R.A. Morse (New York); Margaret I. Lyle (Dallas); and Amy Payne (Dallas).