S054378, Opinion — Lowe v. Philip Morris USA, Inc.

403
Argued and submitted September 5, 2007, decision of Court of Appeals and
judgment of circuit court affirmed May 1, 2008
Patricia R. LOWE,
individually and on behalf of
all similarly-situated persons,
Petitioner on Review,
v.
PHILIP MORRIS USA, INC. ;
RJ Reynolds Tobacco Company,
Brown & Williamson Tobacco Corporation;
Lorillard Tobacco Company;
and Liggett Group Inc.,
foreign corporations,
Respondents on Review.
(CC 0 1 1 1- 1 1895; CA A123025; SC S054378)
183 P3d 1 8 1

404 Lowe v. Philip Morris USA, Inc.
C.JS, Damages § 47.
On review from the Court of Appeals.*
James S. Coon, of Swanson, Thomas & Coon, Portland,
argued the cause and filed the briefs for petitioner on review.
William F. Gary, of Harrang Long Gary Rudnick PC,
Portland, argued the cause and filed the brieffor respondents
on review Philip Morris USA Inc. , RJ Reynolds Tobacco
Company, Brown & Williamson Tobacco Corporation, and
Lorillard Tobacco Company. With him on the brief were
Sharon A Rudnick, Roy Pulvers, of Lindsay, Hart, Neil &
Weigler, LLP, Portland, and Thomas Tongue, of Dunn
C arney Allen Higgins & Tongue LLP, Portland.
Justin M. Thorp, of Martin, Bischoff, Templeton,
Langslet & Hoffman LLP, Portland, filed the brieffor respon
dent on review Liggett Group, Inc.
* Appeal from Multnomah County C ircuit Court, Ellen F. Rosenblum, Judge.
207 Or App 532, 142 P3d 1079 (2006).

Cite as 344 Or 403 (2008) 	405
Brian S. Campf, of Brian S. Campf PC, Portland, filed the
briefs for amici curiae Oregon Trial Lawyers Association and
American Cancer Society.
P. Arley Harrel, of Williams, Kastner & Gibbs PLCC,
Seattle, WA, filed the brief for amicus curiae Product
Liability Advisory Council, Inc. With him on the brief was
Hugh F. Young, Jr. , Product Liability Advisory Council, Inc.,
Reston, VA.
James N. Westwood, of Stoel Rives LLP, Portland, filed
the brieffor amici curiae Coalition for Litigation Justice, Inc.,
Chamber of Commerce of the United States of America,
National Association of Mutual Insurance Companies ,
Property Casualty Insurers Association o f America,
American Insurance Association, American Chemistry
Council, National Association of Manufacturers, and
American Tort Reform Association. With him on the brief
were Jerome A. Murphy and Natalia R. Medley, of Crowell &
Moring LLP, Washington, DC; Robin S. Conrad and Amar D.
Sarwal, of the National Chamber Litigation Center,
Washington, DC; Gregg Dykstra, of the National Association
of Mutual Insurance Companies, Indianapolis, IN; Ann W.
Spragens and Robert J. Hurns, ofProperty Casualty Insurers
Association of America, Des Plaines, IA; Donald D. Evans, of
the American Chemistry Council, Arlington, VA; Jan
Amundson and Quentin Riegel, of the National Association of
Manufacturers, Washington, DC; Sherman Joyce, of the
American Tort Reform Association, Washington, DC; Lynda
S. Mounts and Kenneth A. Stoller, of the American Insurance
Association, Washington, DC.
Thomas W. Brown, of Cosgrave Vergeer Kester LLP,
Portland, filed the brief for amici curiae Oregon Forest
Industries Council and Oregon Restaurant Association.
Janet M. Schroer, of Hoffman, Hart & Wagner, LLP,
Portland, filed the brief for amicus curiae Associated Oregon
Industries.
John M. Groen, of Groen, Stephens & Klinge,
LLP, Bellevue, WA, filed the brief for amicus curiae Pacific
Legal Foundation. With him on the brief was Deborah J. La
Fetra, Pacific Legal Foundation, Sacramento, CA.

406 Lowe v. Philip Morris USA, Inc.
Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Walters, Justices.**
KISTLER, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
Walters, J., concurred and filed an opinion.
** Linder, J., did not participate in the consideration or decision of this case.

Cite as 344 Or 403 (2008) 407
KISTLER, J.
Plaintiff brought this action alleging that defen
dants' negligent manufacture and sale of cigarettes caused
her to suffer a "significantly increased risk of developing lung
cancer" and that, as a result, it was "reasonable and neces
sary'' for her to undergo " [p]eriodic medical screening." She
sought injunctive relief requiring the "creation of a court
monitored program of medical monitoring, smoking cessation
and education" for her and approximately 400,000 similarly
situated Oregonians. Defendants moved to dismiss plaintiffs
complaint on the ground that it did not allege a present phys
ical injury and thus failed to state a claim for negligence. The
trial court agreed and entered judgment in defendants' favor.
The Court of Appeals affirmed. Lowe v. Philip Morris USA,
Inc. , 207 Or App 532, 142 P3d 1079 (2006). We allowed plain
tiffs petition for review and now affirm the Court of Appeals
decision and the trial court's judgment.
We take the facts from plaintiffs second amended
complaint.1 Plaintiff has smoked more than five "pack years"
of cigarettes.2 Defendants negligently manufactured and sold
those cigarettes; among other things, they knew or should
have known that their cigarettes "contained toxic and haz
ardous substances likely to cause lung cancer." As a result of
defendants' negligence, plaintiff and all similarly situated
Oregonians "have suffered inj ury in that they have been sig
nificantly exposed to proven hazardous substances in defen
dants' cigarettes, and suffer significantly increased risk of
developing lung cancer."
The complaint does not allege that plaintiff has suf
fered any present physical harm as a result of defendants'
1 In reviewing a ruling allowing a motion to dismiss for failure to state a claim,
an appellate court assumes that all well-pleaded facts are true and gives the party
opposing the motion the benefit of all reasonable inferences that may be drawn
from those facts. See Caba v. Barker, 341 Or 534, 536, 145 P3d 174 (2006) (stating
standard of review).
z Although the complaint does not define the term "pack year," one court has
explained that "pack year" refers to smoking the equivalent of one pack of ciga
rettes each day for one year. See Barnes v. American Tobacco Co. , 161 F3d 127, 137
n 7 (3d Cir 1998) {explaining concept).

408 Lowe v. Philip Morris USA, Inc.
conduct. The complaint alleges only that plaintiff has suf
fered a "significantly increased risk of developing lung can
cer" in the future. In describing the relief that plaintiff seeks,
the complaint alleges that the exposure to toxic substances
and the resulting increased risk of lung cancer have made it
"reasonable and necessary" for her to undergo "[p] eriodic
medical screening by spiral [Computerized Tomography (CT)
scans] ," which provide for " [e] arly detection of lung cancer"
and "substantially increas[e] the probability of successful
treatment, enhanced life expectancy, and cure." The com
plaint asked the trial court to certify a class of all Oregonians
who have smoked five pack years of cigarettes. The complaint
also asked the trial court to "create a court-supervised pro
gram [for all class members] to provide medical monitoring
by CT scan and smoking cessation therapy, including public
education concerning the program.":3
Defendants moved to dismiss plaintiffs complaint
for failure to state a claim. Defendants argued that plaintiff
needed to allege a present physical injury in order to state a
negligence claim and that she had not done so. Plaintiff
responded that a present physical injury is only necessary in
order to recover emotional distress damages. In plaintiffs
view, she could state a negligence claim, at least for injunc
tive relief, if some of the class members would suffer lung
cancer in the future. The trial court granted defendants'
motion to dismiss but gave plaintiff 10 days to decide
whether to seek leave to file a third amended complaint.
Plaintiff elected not to do so, and the court entered judgment
in defendants' favor.4 See ORCP 21 A ( authorizing that pro
cedure). The Court of Appeals affirmed, Lowe, 207 Or App at
534, and we allowed review to consider whether plaintiffs
complaint stated a negligence claim under Oregon law.
Before turning to the parties' arguments, we begin
by noting what this case does not involve. This is not a case in
According to the complaint, the class includes approximately 400,000 mem
bers, and the "monetary value ofthe benefits sought by plaintiff and class members
totals no more than $74,000 per person," or approximately $29.6 billion for the
class.
1 Because the trial court ruled that plaintiffs allegations failed to state a claim
for which relief may be granted, it did not decide whether to certify a class.

Cite as 344 Or 403
which plaintiff has alleged that she has suffered any present
physical harm as a result of defendants' negligence and seeks
damages for her fear of developing cancer, for the increased
risk of developing cancer that she faces, or for the costs of
medical care to determine the extent of her harm. In such a
case, as defendants conceded below, a plaintiff could obtain
damages for those harms upon proper proof. See Zehr u.
Haugen, 318 Or 647, 656-57, 871 P2d 1006 (1994) (recogniz
ing 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 dis
tress).5 Rather, plaintiff alleges only that a significantly
increased risk of developing lung cancer in the future as a
result of defendants' negligence makes it reasonable and nec
essary for her to undergo periodic medical monitoring.
Accordingly, the question before us is whether those allega
tions state a sufficient harm to give rise to a negligence claim.
Over the course of this litigation, plaintiff has char
acterized the harm that gives rise to her claim differently. As
the Court of Appeals noted, plaintiff argued before the trial
court that a significantly increased risk of contracting lung
cancer in the future is, by itself, a sufficient harm to state a
negligence claim. On appeal, she focused on an additional
harm. She contended that, as a result of defendants' negli
gence, she needs to undergo periodic medical monitoring for
lung cancer and that the economic cost of that monitoring
constitutes a sufficient present harm to give rise to a negli
gence claim. We first consider whether a significantly
increased risk of future physical injury is a sufficient harm to
state a negligence claim. We then turn to whether the eco
nomic cost of undergoing medical monitoring is sufficient.
We note that this case differs from cases such as Friends for All Children v.
Lockheed Aircraft, 746 F2d 816, 825 (DC Cir 1984), where the court allowed a med·
ical monitoring claim when children suffered "explosive decompression" and oxy
gen deprivation during an airplane crash but manifested no apparent physical
injury. AB we understand the court's decision, it held that the oxygen deprivation
and the decompression were sufficient harms to give rise to a negligence claim for
medical treatment to determine whether those harms had resulted in brain dam
age. Id. at 825-26. In this case, plaintiff has not alleged that she suffered any com
parable present physical effects as a result of smoking defendants' products that
would require us to decide whether those effects were sufficient to give rise to a
medical monitoring claim.

410 Lowe v. Philip Morris USA, Inc.
Not all negligently inflicted harms give rise to
a negligence claim. See Hammond v. Central Lane
Communications Center, 3 12 Or 17, 22-23, 816 P2d 593
(1991) (psychic injury alone insufficient to state negli
gence claim except in limited circumstances); Norwest v.
Presbyterian lntercommunity Hosp. , 293 Or 543, 569, 652
P2d 318 (1982) (child's distress caused by negligently
inflicted harm to parent insufficient to state negligence
claim). Rather, a plaintiff must suffer harm "to an interest of
a kind that the law protects against negligent invasion."
Solberg v. Johnson, 306 Or 484, 490, 760 P2d 867 (1988).
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. 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." Zehr, 318 Or at 656; see
also Ballam v. Fireman's Fund Ins. Co. , 302 Or 343, 347, 730
P2d 542 ( 1986) (holding that " '[t]he threat of future harm,
not yet realized, is not enough' ") (quoting W. Page Keeton,
Prosser and Keeton on the Law of Torts § 30, 165 (5th ed
1984)). As Prosser explains,
"Since the action for negligence developed chiefly out of the
old form of action on the case, it retained the rule of that
action, that proof of damage was an essential part of the
plaintiffs case. Nominal damages, to vindicate a technical
right, cannot be recovered in a negligence action, where no
actual loss has occurred. The threat of future harm, not yet
realized, is not enough. Negligent conduct in itself is not
such an interference with the interests of the world at large
that there is any right to complain of it, or to be free from it,
except in the case of some individual whose interests have
suffered."
Keeton, Prosser and Keeton on Torts at 165 (footnotes omit
ted). Accordingly, a plaintiffs cause of action does
not accrue, and the statute of limitations on that cause of
action does not begin to run, until the plaintiff has suffered
an " 'actual loss.' " Bollam, 302 Or at 347 (quoting Prosser
and Keeton on Torts at 165).

Cite as 344 Or 403 411
The question of when negligent exposure to toxic
substances causes a sufficient harm to give rise to a negli
gence claim can present complex issues of science and law.
Cf Doe v. American Red Cross, 322 Or 502, 512 , 910 P2d 364
( 1996) (stating that a person negligently infected through a
blood transfusion with the human immunodeficiency virus
had suffered a harm that would give rise to a negligence
claim). The specific allegations in the case before us do not
require us to explore the outer reaches of those issues, how
ever. Plaintiff has not alleged that her exposure to defen
dants' products has resulted in any present physical effect,
much less any present physical harm. Nor has she alleged
that any future physical harm to her is certain to follow as a
result of that exposure. Rather, she has alleged only that her
exposure to defendants' products has significantly increased
the risk that she will contract lung cancer sometime in the
future. It is sufficient for the purposes of this case to hold only
that, under Zehr and Bollam, the threat of future physical
harm that plaintiff has alleged is not sufficient to give rise to
a negligence claim.
Plaintiff argues, however, that two of this court's
cases have recognized that an increased risk of harm is suf
ficient to state a negligence claim. She relies initially on a
statement from Norwest. In that case, a child brought an
action to recover emotional distress damages against a phy
sician and hospital whose negligence had permanently dis
abled his mother. 293 Or at 545. The child's claim faced two
potential hurdles. First, the only harm that the child experi
enced as a result of the defendants' negligence was emotional
distress. Id. at 558. Second, the distress that the child
asserted "ar[ose] solely as a consequence of a [physical] injury
to another person." Id. at 559. The court concluded that the
fact that the child sought to recover only for emotional dis
tress " [a]rguably" did not bar his negligence action, id. at 559,
but held that the second hurdle-that the child's distress
arose solely as a consequence of a physical injury to another
person-did bar his claim, id. at 569.6
6 The court recognized that, because the defendants' negligence arguably
"infringed some legally protected interest apart from causing the claimed distress,"
the fact that the child suffered only emotional distress as a result of his mother's
injury did not provide a clear basis for saying that he could not state a negligence

412 Lowe v. Philip Morris USA, Inc.
In discussing the first issue, the court explained that
it had permitted recovery for psychic injury alone either for
certain intentional torts or when the defendant's negligence
"infringed some legally protected interest apart from causing
the claimed distress." Id. at 558-59. The court observed, how
ever, that it " [h] ad not yet extended liability for ordinary neg
ligence to solely psychic or emotional injury not accompany
ing any actual or threatened physical harm or any injury to
another legally protected interest." Id. at 559 (emphasis
added). Relying on the emphasized part of the last sentence,
plaintiff argues that "threatened physical harm," such as a
risk of developing cancer, can constitute a cognizable injury
in a negligence case.
Plaintiff reads that statement for more than it is
worth. The plaintiff in Norwest did not seek to recover emo
tional distress damages for any actual or threatened physical
injury to himself. The negative implication of the sentence on
which plaintiff relies at most held open the possibility that a
threat of imminent physical harm-a negligently driven car,
for instance, that swerves offthe road and narrowly misses a
bystander-might give a bystander who suffers only psychic
inj ury as a result an actionable claim for negligence. We need
not decide how the statement in Norwest relates to this
court's later decision in Hammond in order to conclude that
the statement provides no support for plaintiffs position in
this case. Plaintiffs claim does not involve a threat of an
imminent physical harm. Rather, plaintiff alleges only that
defendants' negligence may or may not give rise to physical
harm at some indefinite point in the future. Norwest provides
no assistance to plaintiff.
Plaintiff also relies on a statement from Joshi v.
Providence Health System , 342 Or 152, 149 P3d 1 164 (2006).
Her reliance on that case is misplaced as well. The issue in
Joshi was whether evidence that the defendant's negligence
had reduced a patient's chance of survival by 30 percent was
sufficient to prove that the defendant's negligence had
caused the patient's death. See 342 Or at 156-57 (stating
claim against the defendants. Norwest, 293 Or at 559. The court accordingly
focused on the other hurdle that the child's claim faced, viz. , he sought to recover
for harm caused solely as a consequence of an injury to another person.

Cite as 344 Or 403 (2008) 413
issues). There was no question in Joshi that the patient had
suffered a physical injury: The patient had died. The only
question was whether the evidence was sufficient, for the
purposes of the wrongful death act, to permit a j ury to find
the necessary causal connection between the defendant's
negligence and the patient's death. Interpreting the word
"cause" in the wrongful death act, the court held that the evi
dence was not sufficient. Id. at 164. The court held out the
possibility, however, that "deprivation of a 30 percent chance
of survival may constitute an injury" outside the context of
the wrongful death statute. Id. Considered in context, the
court's statement left open the question whether "deprivation
of a 30 percent chance of survival" would be sufficient proof of
causation if the plaintiff suffered an injury that did not lead
to death. That statement goes to the causal connection nec
essary to prove negligence, not the type of injury necessary to
state a negligence claim.
Our precedents establish that the threat of future
harm that plaintiff has alleged is not sufficient to give rise to
a negligence claim. The question that remains is whether the
other harm that plaintiff has identified-having to undergo
periodic medical monitoring-is sufficient. On that question,
plaintiff notes that she alleged that medical monitoring is
reasonable and necessary, and she contends that it is "per
fectly reasonable to infer that such monitoring has a cost."
We agree that the inference concerning cost is a reasonable
one and turn to the question whether the cost of medical
monitoring is a sufficient injury to state a negligence claim.
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 prop
erty. ' " Oregon Steel Mills, Inc. u. Coopers & Lybrand, LLP,
336 Or 329, 341, 83 P3d 322 (2004) (quoting Hale v. Groce,
304 Or 281, 284, 744 P2d 1289 ( 1987)). Instead, "liability for
purely economic harm 'must be predicated on some duty of
the negligent actor to the injured party beyond the common
law duty to exercise reasonable care to prevent foreseeable
harm.' " Id. (quoting Onita Pacific Corp. v. Trustees of
Bronson, 315 Or 149, 159, 843 P2d 890 ( 1992)). Plaintiff has
not alleged an injury to her person or property, nor has she
identified any duty that defendant owes her beyond the

414 Lowe v. Philip Morris USA, Inc.
common-law duty to exercise reasonable care. Under Oregon
Steel Mills and a long line of this court's cases, the present
economic harm that defendants' actions allegedly have
caused-the cost of medical monitoring-is not sufficient to
give rise to a negligence claim. 7
Plaintiff's argument, as we understand it, reduces to
a claim that we should modify existing negligence law to
require defendants to bear the cost of medical monitoring. On
that point, the court has explained:
"This court generally will reconsider common-law doctrines
in three situations: ( 1) when an earlier case was 'inade
quately considered or wrong when it was decided'; (2) when
statutes or regulations have altered an 'essential legal ele
ment assumed in the earlier case'; or ( 3) when the earlier
rule was based on specific facts that have changed."
Juarez v. Windsor Rock Products, Inc. , 341 Or 160, 168, 144
P3d 2 1 1 (2006) (quoting G.L. v. Kaiser Foundation Hospitals,
Inc. , 306 Or 54, 59, 757 P2d 1347 ( 1988)). Plaintiff does not
argue that any of those three situations applies here.
Instead, she notes that courts from other jurisdictions have
divided over this question, and she urges us to adopt the rea
soning of the decisions allowing actions for medical
monitoring.8
We have reviewed the decisions favoring plaintiffs
position, as well as those favoring defendants'. The decisions
from other jurisdictions are divided, and there are well
reasoned arguments on both sides of the issue. Compare
Hansen u. Mountain Fuel Supply Co. , 858 P2d 970 (Utah
1993); Potter u. Firestone Tire and Rubber Co. , 6 Cal 4th 965,
863 P2d 795 ( 1993); Ayers u. Jackson Township, 106 NJ 557,
525 A2d 287 ( 1987) (all recognizing medical monitoring
claims), with Henry u. Dow Chem,. Co. , 473 Mich 63, 701
NW2d 684 (2005); Wood v . Wyeth-Ayerst Laboratories, 82
7 Plaintiff argues that the rule in Oregon Steel Mills should not apply to this
case because she was a direct, not a third party, victim of defendants' negligence.
Plaintiffs argument is difficult to square with Hale and Oregon Steel Mills. Both
cases held categorically that purely economic harm is not sufficient to state a neg
ligence claim without some source of duty outside the common law of negligence.
Oregon Steel Mills, 336 Or at 341; Hale. 304 Or at 284.
8 The parties and commentators disagree over the exact number of jurisdic
tions on each side of the issue.

Cite as 344 Or 403
SW3d 849 (Ky 2002); Metro-North Commuter Railroad v.
Buckley, 521 US 424, 1 1 7 S Ct 2 1 13, 138 L Ed 2d 560 ( 1997)
(all rejecting medical monitoring claims; the last case reject
ing a medical monitoring claim seeking damages rather than
injunctive relief). We need not decide which line of decisions
we might find more persuasive if this were a case of first
impression. Our precedents control this issue, and the differ
ing 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 dis
missed plaintiffs complaint for failure to state a negligence
claim, and the Court of Appeals correctly affirmed the trial
court's judgment.
The decision of the Court of Appeals and the judg
ment of the circuit court are affirmed.
WALTERS, J., concurring.
The majority concludes, and I agree, that plaintiff's
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 monitor
ing 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 8 16, 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 hospi
tal 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 Lowe v. Philip Morris USA, Inc.
Medical monitoring is simply a continuing series of diagnos
tic tests used to determine the extent of the injury and the
appropriateness of treatment.1 In Oregon, a plaintiff in a neg
ligence action may recover the costs of diagnostic testing, see
Zehr v. Haugen, 318 Or 647, 656-57, 871 P2d 1006 ( 1 994)
(recognizing that, when a defendant's negligence causes bod
ily 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 phys
ical harm to permit the filing of an action and recovery of
medical costs, including medical monitoring costs. For exam
ple, 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 symp
toms beyond the pain of the impact. Plaintiffs who suffer sim
ilar 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
1 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.' " Vict-0r E. Schwartz, Leah Lorber, and Emily J. Laird, Medical
Monitoring: The Right Way and the Wrong Way, 70 Mo L Rev 349, 351 (2005) (quot
ing Myrton F. Beeler & Robert Sappenfield, Medical Monitoring: What ls It, How
Can it Be Improved?, 87 Am J Clinical Pathology 285, 285 (Myrton F. Beeler et al,
eds., 1987)).
2 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

Cite as 344 Or 403 (2008) 417
402, 412, 5 17 P2d 675 ( 1973) (plaintiff injured when cash reg
ister 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 immedi
ate symptoms of harm whatsoever. See Doe v. American Red
Cross, 322 Or 502, 506, 515, 9 1 0 P2d 364 ( 1996) (court implic
itly 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 suf
fered medical symptoms of harm at that time); Herber v.
Johns-Manville Corp. , 785 F2d 79, 8 1 , 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 con
sider 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. , 1 16 NJ 126, 129-30, 561 A2d 257, 258-59 ( 1989) (plain
tiff 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
----· ---
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 th e absence of permanent injury."

418 Lowe v. Philip Morris USA, Inc.
plaintiffs' cells); Hagerty v. L & L Marine Services, Inc. , 788
F2d 3 15, 317, 3 19, clarified and recons den en bane, 797 F2d
256 (5th Cir 1986) (plaintiff accidentally drenched by cancer
causing chemicals suffered dizziness, leg cramps, and per
sistent 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 recog
nizing 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 medi
cal 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 frame
work. One particularly tricky problem is the statute of limi
tations. There is a tendency to treat the first date that deter
mines when a plaintiff must sue as the first date a plaintiff
may sue. If we permit a plaintiff to sue for medical monitor
ing costs long before disease becomes manifest, has the plain
tiff 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
" 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 occu
pational 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 ofPersonal Injuries
and Allied Specialties § 38.46h (3d ed 1986)).

Cite as 344 Or 403
limitation] are generally stated to be to prevent the presen
tation of stale and vex[at]ious claims, to discourage the asser
tion 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 dis
tinct 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 puz
zling. The statute of limitations is only one of many unique
issues presented by the "emerging complexities of industri
alized 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 oflegislative 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 sci
entific or medical testing can disclose.
D amage, or harm, is an essential element of a negli
gence claim. See W. Page Keeton, Prosser and Keeton on the
Law of Torts § 30, 165 (5th ed 1984) ( cause of action for neg
ligence 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 iden
tify harm before it becomes manifest, and to do so with suffi
cient certainty, our precedents do not foreclose an action in
negligence or the remedy of medical monitoring.