Lowe v. Philip Morris USA, Inc.

WALTERS, J.,

concurring.

The majority concludes, and I agree, that plaintiffs complaint fails to state a claim for relief because plaintiff does not allege that she has suffered present physical harm. I write separately only to call attention to the fine point that the majority has drawn.

First, the majority does not reject medical monitoring as a remedy in a negligence action, and Oregon law may well permit it. As the court illustrated in Friends for All Children v. Lockheed Aircraft, 746 F2d 816, 825 (DC Cir 1984), current tort principles permit diagnostic testing:

“Jones is knocked down by a motorbike which Smith is riding through a red light. Jones lands on his head with some force. Understandably shaken, Jones enters a hospital where doctors recommend that he undergo a battery of tests to determine whether he has suffered any internal head injuries. The tests prove negative, but Jones sues Smith solely for what turns out to be the substantial cost of the diagnostic examinations.”

*416 Medical monitoring is simply a continuing series of diagnostic tests used to determine the extent of the injury and the appropriateness of treatment. 1 In Oregon, a plaintiff in a negligence action may recover the costs of diagnostic testing, see Zehr v. Haugen, 318 Or 647, 656-57 , 871 P2d 1006 (1994) (recognizing that, when a defendant’s negligence causes bodily injury, the plaintiff can recover damages for past, present, and future medical expenses, bodily injury, and emotional distress), and there is no reason that such a plaintiff could not also recover medical monitoring costs.

Second, the majority does not define the term “present physical harm,” nor does it conclude that, to allege “present physical harm” and maintain a claim for medical monitoring, a plaintiff must necessarily allege that the harm has resulted in manifest symptoms. In my view, a plaintiff who alleges that he or she has experienced a physical impact or harmful physical effect has alleged sufficient present physical harm to permit the filing of an action and recovery of medical costs, including medical monitoring costs. For example, a plaintiff who alleges a blow to the head has alleged present physical harm and may bring a negligence action even though the plaintiff may not allege immediate symptoms beyond the pain of the impact. Plaintiffs who suffer similar impacts should also be entitled to recover not only the expenses of immediate treatment, if any, but also the costs of medical monitoring tests to determine the extent of the injury and whether it is subject to treatment. See Friends for All Children, 746 F2d at 825 (plaintiffs suffered explosive decompression in airplane crash and had risk of Minimal Brain Dysfunction); 2 Feist v. Sears, Roebuck & Co., 267 Or *417 402, 412 , 517 P2d 675 (1973) (plaintiff injured when cash register fell on her head entitled to damages, including damages for future susceptibility to meningitis).

Similarly, if a foreign substance that creates a risk of future harm is injected into a plaintiffs body and causes detectable physical effects, that plaintiff also suffers present physical harm, even if he or she does not suffer any immediate symptoms of harm whatsoever. See Doe v. American Red Cross, 322 Or 502, 506, 515 , 910 P2d 364 (1996) (court implicitly assumed that decedent negligently given HIV-infected blood had suffered present physical injury and could have brought negligence action as of date he tested positive for HIV, even though there was no indication that he suffered medical symptoms of harm at that time); Herber v. Johns-Manville Corp., 785 F2d 79, 81, 83, 88 (3d Cir 1986) (jury found physical injury when plaintiff exposed to asbestos had developed pleural thickening, even though plaintiff had no asthma or wheezing and was under no medical treatment; court concluded that jury should have been permitted to consider whether plaintiff was entitled to medical monitoring damages for risk of developing cancer).

In many, if not most, of the cases in which courts have permitted negligence actions to recover the costs of medical monitoring, the plaintiffs have alleged physical impacts or effects such as those described in Friends for All Children, Feist, Doe, and Herber. See, e.g., Hansen v. Mountain Fuel Supply Co., 858 P2d 970, 973 (Utah 1993) (plaintiffs experienced coughing, wheezing, shortness of breath, chest tightness, headaches, and severe eye irritation as a result of their exposure); Mauro v. Raymark Industries, Inc., 116 NJ 126, 129-30, 561 A2d 257, 258-59 (1989) (plaintiff diagnosed with pleural asbestosis); Ayers v. Township of Jackson, 106 NJ 557, 589, 525 A2d 287, 303 (1987) (exposure to chemical caused adverse effects on genetic material within *418 plaintiffs’ cells); Hagerty v. L & L Marine Services, Inc., 788 F2d 315, 317, 319, clarified and recons den en banc, 797 F2d 256 (5th Cir 1986) (plaintiff accidentally drenched by cancer-causing chemicals suffered dizziness, leg cramps, and persistent stinging sensation in extremities).

The existence of a period of time between the initial impacts or effects and the later appearance of symptoms or disease does not alone present a legal impediment to recognizing a plaintiffs negligence claim for medical monitoring costs. 3 Tests can enable physicians to identify the point at which medical treatment would limit a plaintiffs injuries, preserve life, and reduce the amount of damages a defendant could be required to pay. Thus, those tests would benefit all parties in appropriate circumstances. See, e.g., Victor E. Schwartz, Leah Lorber, and Emily J. Laird, Medical Monitoring: The Right Way and the Wrong Way, 70 Mo L Rev 349, 352 (2005) (suggesting circumstances in which medical monitoring is appropriate, including when benefits of medical monitoring outweigh risks created by the diagnostic tests themselves).

The scientific and legal challenges that lie ahead may be difficult to address within our current tort framework. One particularly tricky problem is the statute of limitations. There is a tendency to treat the first date that determines when a plaintiff must sue as the first date a plaintiff may sue. If we permit a plaintiff to sue for medical monitoring costs long before disease becomes manifest, has the plaintiff who waits to bring an action until the disease is apparent waited too long? The purpose of a statute of limitations is to prevent stale claims by defining the last date upon which a case may be brought. See Rennie v. Pozzi, 294 Or 334, 342 , 656 P2d 934 (1982) (“Those policies [underlying statutes of *419 limitation] are generally stated to be to prevent the presentation of stale and vex[at]ious claims, to discourage the assertion of fraudulent ones, and to end the possibility of litigation after a reasonable time.”). Therefore, cases that address when a claim accrues for statute of limitations purposes are not necessarily useful in deciding whether a plaintiff should be permitted to bring suit at an earlier date. In a negligence action in which the question is the earliest date upon which a plaintiff may seek relief, we face considerations that are distinct from those that are presented when the question is whether a claim has become too stale. Nevertheless, how to accommodate and correctly address both concerns is puzzling. The statute of limitations is only one of many unique issues presented by the “emerging complexities of industrialized society and the consequent implications for human health.” Ayers , 106 NJ at 579, 525 A2d at 298 . We cannot expect that the degree of care used in dispersing or disposing of hazardous chemicals will always be reasonable. In the absence of legislative guidance, we will undoubtedly be called upon to consider how to address claims that negligence in the use of dangerous substances has caused harm that only scientific or medical testing can disclose.

Damage, or harm, is an essential element of a negligence claim. See W. Page Keeton, Prosser and Keeton on the Law of Torts § 30, 165 (5th ed 1984) (cause of action for negligence requires showing of resulting actual loss or damage). A person who acts negligently without causing damage to another does not so “interfere [] with the interests of the world at large that there is any right to complain of it, or to be free from it.” Id. When science and medicine are able to identify harm before it becomes manifest, and to do so with sufficient certainty, our precedents do not foreclose an action in negligence or the remedy of medical monitoring.

Medical monitoring has been defined as “ ‘a form of surveillance based on repetitive use of the same test or test group to detect a specified change in the patient indicating a change in his prognosis or need for treatment or a change in his treatment.’ ” Victor E. Schwartz, Leah Lorber, and Emily J. Laird, Medical Monitoring: The Right Way and the Wrong Way, 70 Mo L Rev 349, 351 (2005) (quoting Myrton F. Beeler & Robert Sappenfield, Medical Monitoring: What Is It, How Can it Be Improved?, 87 Am J Clinical Pathology 285, 285 (Myrton F. Beeler et al, eds., 1987)).

In Friends for All Children, the court stated that medical monitoring should be available “even in the absence of physical injury!.]” 746 F2d at 825. I am not certain what the court meant by that. In the hypothetical that that court used, for example, Jones did strike his head on the pavement, causing what seems evident to be “present physical injury,” even though that injury may not have been *417 permanent. And the case before the court involved children who had been in a plane crash; they had been subjected to explosive decompression and a subsequent crash landing that shattered the plane into four large pieces, apparently killing roughly half of the people on board. Id. at 819. Those children suffered a physical impact just as serious as that caused by the striking of the head on the pavement, and I do not understand why they would not be deemed to have suffered “present physical injury.” Perhaps the court meant, more precisely, that medical monitoring should be available “even in the absence of permanent injury.”

Toxic exposure cases present particularly perplexing problems because of the long latency period that often exists between exposure to a toxin and development of disease. “[T]he average latency period[s] for hazardous substances causing occupational cancers are: arsenic, 25 years; tar, 20-24 years; radiation, 20-30 years; asbestos, 18 years; chromates, 15 years.” Allan T. Slagel, Medical Surveillance Damages: A Solution to the Inadequate Compensation of Toxic Tort Victims, 63 Ind LJ 849, 852 n 15 (1988) (citing 5B Lawyers’Medical Cyclopedia of Personal Injuries and Allied Specialties § 38.46h (3d ed 1986)).